UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 6, 2009
The New York Times Company
(Exact name of registrant as specified in its charter)
New York |
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1-5837 |
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13-1102020 |
(State or other
jurisdiction
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(Commission
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(I.R.S. Employer
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620 Eighth Avenue, New York, New York |
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10018 |
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(Address of principal executive offices) |
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(Zip Code) |
Registrants telephone number, including area code: (212) 556-1234
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. |
Entry into a Material Definitive Agreement. |
On March 6, 2009, an affiliate of The New York Times Company (the Company) entered into an Agreement of Purchase and Sale and a Lease Agreement with an affiliate of W. P. Carey & Co. LLC (W. P. Carey), pursuant to which the Company agreed to sell and simultaneously lease back a portion of its leasehold condominium interest in the Companys headquarters building located at 620 Eighth Avenue, New York, New York (the Condo Interest). The purchase price for the Condo Interest is $225 million.
The sale-leaseback transaction encompasses 21 floors, or approximately 750,000 rentable square feet, currently occupied by the Company. The lease term is 15 years, and the Company has three renewal options that could extend the term for an additional 20 years. The first years annual rental rate is approximately $24 million and will increase 1.5 percent per year through the 10 th year of the lease. Thereafter, it will increase 2.25 percent per year. During the 15 th year of the lease, the rental rate will be approximately $30.5 million. In addition to rent, the Company will continue to pay taxes as well as utility, maintenance and all other operating costs.
The Company has an option, exercisable during the 10 th year of the lease term, to repurchase the Condo Interest for $250 million.
For tax and accounting purposes, the transaction will be treated as a financing transaction. As such, the Company will continue to depreciate the condominium interest and will treat the rental payments as interest expense. The difference between the purchase option price of $250 million and the sale proceeds of $225 million, or $25 million, will be amortized over a 10-year period.
The Company will use the proceeds to retire long-term indebtedness by calling for a redemption of all $250 million outstanding aggregate principal amount of its 4.5% notes due 2010. For information about the redemption, see Item 8.01 of this report.
The foregoing descriptions are qualified in their entirety by reference to the Agreement of Purchase and Sale and Lease Agreement, copies of which are attached as Exhibits 10.1 and 10.2 and incorporated by reference herein. A copy of the Companys related press release is attached as Exhibit 99.1.
Item 2.03. |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information contained in Item 1.01 of this report is incorporated by reference into this Item 2.03.
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Item 8.01. |
Other Events. |
On March 9, 2009, the Company announced that it will use the proceeds of the sale-leaseback transaction to redeem all $250 million outstanding aggregate principal amount of its 4.5% notes due 2010. A copy of the Companys press release announcing the redemption of the notes is attached as Exhibit 99.2 to this report and incorporated by reference herein.
Forward-Looking Statements
Except for the historical information contained herein, the matters discussed in this current report on Form 8-K are forward-looking statements that involve risks and uncertainties that could cause actual results to differ materially from those predicted by such forward-looking statements. These risks and uncertainties include national and local conditions, as well as competition, that could influence the levels (rate and volume) of retail, national and classified advertising and circulation generated by our various markets and material increases in newsprint prices. They also include other risks detailed from time to time in the Companys publicly filed documents, including the Companys Annual Report on Form 10-K for the year ended December 28, 2008. The Company undertakes no obligation to publicly update any forward-looking statement, whether as a result of new information, future events or otherwise.
Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits
Exhibit Number |
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Description |
Exhibit 10.1 |
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Agreement of Purchase and Sale, dated as of March 6, 2009, between NYT Real Estate Company LLC, as seller, and 620 Eighth NYT (NY) Limited Partnership, as buyer |
Exhibit 10.2 |
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Lease Agreement, dated as of March 6, 2009, between 620 Eighth NYT (NY) Limited Partnership, as landlord, and NYT Real Estate Company LLC, as tenant |
Exhibit 10.3 |
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Third Amendment to Agreement of Sublease (NYT), dated as of March 6, 2009, between 42 nd St. Development Project, Inc., as landlord, and NYT Real Estate Company LLC, as tenant |
Exhibit 10.4 |
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Fourth Amendment to Agreement of Sublease (NYT), dated as of March 6, 2009, between 42 nd St. Development Project, Inc., as landlord, and 620 Eighth NYT (NY) Limited Partnership, as tenant |
Exhibit 10.5 |
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Agreement of Sublease (NYT-2), dated as of March 6, 2009, between 42 nd St. Development Project, Inc., as landlord, and NYT Real Estate Company LLC, as tenant |
Exhibit 10.6 |
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First Amendment to Agreement of Sublease (NYT-2), dated as of March 6, 2009, between 42 nd St. Development Project, Inc., as landlord, and NYT Building Leasing Company LLC, as tenant |
Exhibit 99.1 |
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The New York Times Company Press Release dated March 9, 2009 |
Exhibit 99.2 |
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The New York Times Company Press Release dated March 9, 2009 |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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THE NEW YORK TIMES COMPANY |
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Date: March 9, 2009 |
By: |
/s/ Kenneth A. Richieri |
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Kenneth A. Richieri |
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Senior Vice President, General Counsel and Secretary |
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Exhibit List
Exhibit Number |
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Description |
Exhibit 10.1 |
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Agreement of Purchase and Sale, dated as of March 6, 2009, between NYT Real Estate Company LLC, as seller, and 620 Eighth NYT (NY) Limited Partnership, as buyer |
Exhibit 10.2 |
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Lease Agreement, dated as of March 6, 2009, between 620 Eighth NYT (NY) Limited Partnership, as landlord, and NYT Real Estate Company LLC, as tenant |
Exhibit 10.3 |
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Third Amendment to Agreement of Sublease (NYT), dated as of March 6, 2009, between 42 nd St. Development Project, Inc., as landlord, and NYT Real Estate Company LLC, as tenant |
Exhibit 10.4 |
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Fourth Amendment to Agreement of Sublease (NYT), dated as of March 6, 2009, between 42 nd St. Development Project, Inc., as landlord, and 620 Eighth NYT (NY) Limited Partnership, as tenant |
Exhibit 10.5 |
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Agreement of Sublease (NYT-2), dated as of March 6, 2009, between 42 nd St. Development Project, Inc., as landlord, and NYT Real Estate Company LLC, as tenant |
Exhibit 10.6 |
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First Amendment to Agreement of Sublease (NYT-2), dated as of March 6, 2009, between 42 nd St. Development Project, Inc., as landlord, and NYT Building Leasing Company LLC, as tenant |
Exhibit 99.1 |
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The New York Times Company Press Release dated March 9, 2009 |
Exhibit 99.2 |
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The New York Times Company Press Release dated March 9, 2009 |
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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 |
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ARTICLE II PURCHASE AND SALE OF PROPERTY |
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Section 2.1 |
Sale |
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ARTICLE III PURCHASE PRICE |
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Section 3.1 |
Purchase Price |
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ARTICLE IV TITLE |
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Section 4.1 |
Transfer |
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Section 4.2 |
Evidence of Transfer |
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ARTICLE V INTENTIONALLY OMITTED |
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ARTICLE VI BUYERS REPRESENTATIONS AND WARRANTIES |
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Section 6.1 |
Representations and Warranties of Buyer |
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Section 6.2 |
Survival |
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ARTICLE VII BROKERS AND EXPENSES |
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Section 7.1 |
Brokers |
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Section 7.2 |
Expenses |
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ARTICLE VIII CLOSING |
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Section 8.1 |
Closing |
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Section 8.2 |
Closing Deliveries |
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Section 8.3 |
Prorations |
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Section 8.4 |
Indemnification |
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ARTICLE IX RISK OF LOSS AND INSURANCE PROCEEDS |
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Section 9.1 |
Casualty |
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Section 9.2 |
Condemnation |
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Section 9.3 |
Survival |
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ARTICLE X CONDITIONS TO CLOSING |
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Section 10.1 |
Conditions to Buyers Obligation to Close |
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Section 10.2 |
Conditions to Sellers Obligation to Close |
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Section 10.3 |
Failure to Satisfy Conditions |
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ARTICLE XI MISCELLANEOUS |
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Section 11.1 |
Notices |
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Section 11.2 |
Entire Agreement |
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Section 11.3 |
Further Assurances |
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Section 11.4 |
Jury Trial Waiver |
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Section 11.5 |
No Merger |
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Section 11.6 |
Assignment |
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Section 11.7 |
Counterparts and Facsimile |
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Section 11.8 |
Governing Law; Consent to Jurisdiction |
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Section 11.9 |
Confidentiality |
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Section 11.10 |
Interpretation of Agreement |
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Section 11.11 |
General Rules of Construction |
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Section 11.12 |
Limited Liability |
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Section 11.13 |
Amendments |
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Section 11.14 |
Tax Treatment |
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SCHEDULES |
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Schedule 4.2 |
Permitted Exceptions |
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EXHIBITS |
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Exhibit A-1 |
Severance Lease |
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Exhibit A-2 |
Legal Description |
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Exhibit B-1 |
Form of Lease Agreement |
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Exhibit B-2 |
Form of Lease Guaranty |
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Exhibit C |
Form of Assignment and Assumption of Severance Lease |
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Exhibit D |
Form of Bill of Sale and Assignment |
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Exhibit E |
Settlement Statement and Disbursement Schedule |
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Exhibit F |
FIRPTA Certificate |
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Exhibit G |
Landlords Estoppel Certificate |
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Exhibit H |
Condominium Estoppel Certificate |
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Exhibit I |
Assumption Agreement |
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Exhibit J |
Title Confirmation Letter |
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Exhibit K |
IDA Consent, Subordination and Assumption Agreement |
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Exhibit L |
Memorandum of Lease |
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Exhibit M |
NYT Sublease Agreement |
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Exhibit N |
Wrap Mortgage |
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Exhibit O |
Wrap Mortgage Affidavits |
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Exhibit P |
NYC Transit Authority Estoppel |
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Exhibit Q |
Subordination of Management Agreement |
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Exhibit R |
Assignment and Assumption of Management Agreement |
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Exhibit S |
Seller Certificate |
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Exhibit T |
Guarantor Certificate |
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Exhibit U |
Side Letter re: purchase of loan |
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Exhibit V |
Lessee Estoppel |
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Exhibit W |
First Note |
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Exhibit X |
First Mortgage |
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Exhibit Y |
First Mortgage UCC-1 |
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Exhibit Z |
Wrap Mortgage UCC-1 |
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Exhibit AA |
Third Declaration to Severance Lease |
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Exhibit BB |
Third Declaration to Declaration |
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Exhibit CC |
New Severance Sublease |
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Exhibit DD |
Assignment of New Severance Sublease |
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Exhibit EE |
ESDC Mortgage Assignment |
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Exhibit FF |
ESDC Wrap Mortgage Assignment |
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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.
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.
Buyers Closing Deliveries is defined in Section 8.2(b).
Buyers 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 Registers 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 Registers 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 Registers 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 Registers 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 Buyers 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 Registers 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).
Registers 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.
Sellers Closing Deliveries is defined in Section 8.2(a).
Sellers 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 Sellers 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.
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:
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Section 3.1 Purchase Price .
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Section 4.1 Transfer. At the Closing, Seller shall:
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 Mortgagees 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 ):
Section 6.1 Representations and Warranties of Buyer. Buyer represents and warrants to Seller that as of the date hereof and the Closing Date:
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Section 6.2 Survival. All representations and warranties of Buyer contained in Section 6.1 shall survive the Closing indefinitely.
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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 finders fees in connection with the transactions contemplated by this Agreement. If any Person brings a claim for a commission or finders 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.
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 Buyers 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.
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Section 8.3 Prorations.
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.
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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Section 10.1 Conditions to Buyers 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:
Section 10.2 Conditions to Sellers 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:
Section 10.3 Failure to Satisfy Conditions .
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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 |
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c/o W.P. Carey & Co. LLC |
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50 Rockefeller Plaza |
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New York, New York 10020 |
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Attn: Jason Fox |
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With a copy to: |
Reed Smith LLP |
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599 Lexington Avenue, 29th Floor |
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New York, New York 10022 |
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Attn: Joseph M. Marger, Esq. |
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To Seller: |
NYT Real Estate Company LLC |
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c/o The New York Times Company |
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620 Eighth Avenue |
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New York, New York 10018 |
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Attention: R. Anthony Benten |
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With a copy to: |
NYT Real Estate Company LLC |
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c/o The New York Times Company |
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620 Eighth Avenue |
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New York, New York 10018 |
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Attention: Kenneth A. Richieri, General Counsel |
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And to: |
DLA Piper LLP (US) |
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1251 Avenue of the Americas |
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New York, New York 10022 |
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Phone No.: (212) 335-4610 |
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Fax No.: (212) 884-8600 |
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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. Buyers 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.
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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 recipients 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 partys 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 partys 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 Buyers and Sellers 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
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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.
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(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]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the respective dates written below.
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SELLER : |
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NYT REAL ESTATE COMPANY LLC |
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By: |
/s/ Kenneth A. Richieri |
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Name: Kenneth A. Richieri |
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Title: Manager |
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BUYER : |
620 EIGHTH NYT (NY) LIMITED PARTNERSHIP |
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By: |
620 EIGHTH GP NYT (NY) LLC |
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By: |
CPA:17 LIMITED PARTNERSHIP |
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By: |
CORPORATE PROPERTY ASSOCIATES 17-GLOBAL INCORPORATED |
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By: |
/s/ Jason E. Fox |
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Name: Jason E. Fox |
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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
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(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.
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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 NYTBs 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 Surveys 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 Registers 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 |
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TAX LOT |
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PERCENTAGE INTEREST
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0-A |
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1001 |
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0.6627 |
% |
1- A |
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1003 |
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2.0132 |
% |
1-E |
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1007 |
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0.0691 |
% |
2-A |
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1009 |
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4.7805 |
% |
3-A |
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1010 |
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4.7579 |
% |
4-A |
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1011 |
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4.5636 |
% |
5-A |
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1012 |
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1.6352 |
% |
6-A |
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1013 |
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1.7325 |
% |
7-A |
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1014 |
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1.7325 |
% |
8-A |
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1015 |
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1.7325 |
% |
9-A |
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1016 |
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1.7325 |
% |
10-A |
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1017 |
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1.7325 |
% |
11-A |
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1018 |
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1.7325 |
% |
12-A |
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1019 |
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1.7325 |
% |
13-A |
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1020 |
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1.7325 |
% |
14-A |
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1021 |
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1.7440 |
% |
15-A |
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1022 |
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1.3998 |
% |
16-A |
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1023 |
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1.7484 |
% |
17-A |
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1024 |
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1.7207 |
% |
18-A |
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1025 |
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1.7711 |
% |
19-A |
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1026 |
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1.7711 |
% |
20-A |
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1027 |
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1.7711 |
% |
28-A |
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1035 |
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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:
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 ):
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:
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 Tenants 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.
Section 2.01 Representations and Warranties . The representations and warranties made by Guarantor in the Guarantors 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.
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 Landlords 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 Guarantors 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 Guarantors 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, NYTCs 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).
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 Landlords 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.
IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this Guaranty as of the date first above written.
WITNESS: |
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THE NEW YORK TIMES COMPANY |
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By: |
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By: |
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Name: |
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Title: |
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WITNESS: |
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THE NEW YORK TIMES SALES COMPANY. |
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By: |
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By: |
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Name: Kenneth A. Richieri |
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Title: |
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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 Assignors 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 Assignors 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.
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ASSIGNOR : |
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NYT REAL ESTATE COMPANY LLC , |
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a New York limited liability company |
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By: |
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Name: |
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Title: Manager |
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ASSIGNEE : |
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620 EIGHTH NYT (NY) LIMITED
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By: 620 EIGHTH GP NYT (NY) LLC, a |
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Delaware limited liability company, its general partner |
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By: CPA:17 LIMITED PARTNERSHIP, a |
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Delaware limited partnership, its sole member |
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By: CORPORATE PROPERTY |
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ASSOCIATES 17 GLOBAL INCORPORATED, |
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a Maryland corporation, its general partner |
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By: |
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Name: Jason E. Fox |
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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.
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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.
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|
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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 Registers 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
|
|
|
|
|
|
|
|
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 ):
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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; |
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all certificates of occupancy, licenses, permits, approvals and authorizations, if any, which customarily are required to be transferred with the Property; |
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(iii) |
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all warranties, indemnity agreements and bonds with respect to any portion of the Property; |
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any warranties or guaranties given by any contractor, manufacturer or materialmen in connection with the construction, maintenance, repair or renovation of the Property; and |
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(v) |
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all plans and specifications, drawings, technical manuals and similar matters with respect to the Property. |
The term Personal Property shall exclude the following:
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Any existing cause of action, or damage claim, of or against Seller. |
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(ii) |
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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. |
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(iii) |
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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 ). |
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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. |
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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 Sellers 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]
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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.
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NYT REAL ESTATE COMPANY LLC , |
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a New York limited liability company |
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By: |
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Name: Kenneth A. Richieri |
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Title: Manager |
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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 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 Surveyors 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 Registers 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;
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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.
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SCHEDULE OF UNITS
UNIT DESIGNATION |
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TAX LOT |
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PERCENTAGE INTEREST
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0-A |
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1001 |
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0.6627 |
% |
1- A |
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1003 |
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2.0132 |
% |
1-E |
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1007 |
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0.0691 |
% |
2-A |
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1009 |
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4.7805 |
% |
3-A |
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1010 |
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4.7579 |
% |
4-A |
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1011 |
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4.5636 |
% |
5-A |
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1012 |
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1.6352 |
% |
6-A |
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1013 |
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1.7325 |
% |
7-A |
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1014 |
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1.7325 |
% |
8-A |
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1015 |
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1.7325 |
% |
9-A |
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1016 |
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1.7325 |
% |
10-A |
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1017 |
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1.7325 |
% |
11-A |
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1018 |
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1.7325 |
% |
12-A |
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1019 |
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1.7325 |
% |
13-A |
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1020 |
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1.7325 |
% |
14-A |
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1021 |
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1.7440 |
% |
15-A |
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1022 |
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1.3998 |
% |
16-A |
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1023 |
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1.7484 |
% |
17-A |
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1024 |
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1.7207 |
% |
18-A |
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1025 |
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1.7711 |
% |
19-A |
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1026 |
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1.7711 |
% |
20-A |
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1027 |
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1.7711 |
% |
28-A |
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1035 |
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0.4446 |
% |
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EXHIBIT B
MACHINERY AND EQUIPMENT
All fixtures, machinery, apparatus, equipment, fittings and appliances of every kind and nature whatsoever now or hereafter affixed or attached to or installed in any of the Property (except as hereafter provided), including all electrical, anti-pollution, heating, lighting (including hanging fluorescent lighting), incinerating, power, air cooling, air conditioning, humidification, sprinkling, plumbing, lifting, fire prevention, fire extinguishing, security, and ventilating systems, devices and machinery and all engines, pipes, pumps, tanks (including exchange tanks and fuel storage tanks), motors, conduits, ducts, steam circulation coils, blowers, steam lines, compressors, oil burners, boilers, doors, windows, loading platforms, lavatory facilities, stairwells and passenger and freight elevators, together with all additions thereto, substitutions therefor and replacements thereof required or permitted by that certain Lease Agreement ( Lease ) by and between Seller, as tenant, and Purchaser, as landlord, for the Property dated of even date herewith, but excluding Tenants Personal Property (as that term is defined in the Lease).
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EXHIBIT F
FIRPTA AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. For U.S. tax purposes (including section 1445), the owner of a disregarded entity (which has legal title to a U.S. real property interest under local law) will be the transferor of the property and not the disregarded entity. To inform the transferee that withholding of tax is not required upon the disposition of a U.S. real property interest by (Transferor), the undersigned hereby certifies the following on behalf of Seller:
Transferor is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations);
Transferor is not a disregarded entity as defined in §1.1445-2(b)(2)(iii);
Transferors U.S. employer identification number is: ; and
Transferors office address is .
Transferor understands that this certification may be disclosed to the Internal Revenue Service by transferee and that any false statement contained herein could be punished by fine, imprisonment or both.
Under penalties of perjury I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct and complete, and I further declare that I have authority to sign this document on behalf of Transferor.
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Dated: |
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By: |
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Name: |
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Its: |
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NOTICE TO TRANSFEREE (BUYER): You are required by law to retain this Certificate until the end of the fifth tax year following the tax year in which the transfer takes place and make the Certificate available to the Internal Revenue Service if requested to do so during that period.
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EXHIBIT G
SEVERANCE LEASE / LANDLORDS ESTOPPEL CERTIFICATE
To: 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP (Purchaser) and 620 EIGHTH LENDER NYT (NY) LIMITED PARTNERSHIP (WPC Lender)
Re: Agreement of Sublease dated as of December 12, 2001, between The New York Times Building LLC ( NYTB ), as landlord, and NYT Real Estate Company LLC, a New York limited liability company ( Tenant ), NYTBs interest in which Agreement of Sublease as landlord was assigned by Assignment and Assumption Agreement dated as of August 15, 2006, to 42 nd St. Development Project, Inc., as landlord (in such capacity, Landlord ), which Agreement of Sublease was amended pursuant to First Amendment to Agreement of Sublease (NYT) dated as of 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 as of 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 (such Agreement of Sublease, as so assigned and amended, the Severance Lease ).
Date: March , 2009
In connection with the proposed assignment to Purchaser of the interest of NYT Real Estate Company LLC ( Seller ) in the Severance Lease (the Assignment ), the undersigned hereby certifies to and agrees with Seller, WPC Lender and Purchaser as follows as of the date hereof:
1. All capitalized terms used herein and not otherwise defined herein shall have the same meaning ascribed to them in the Severance Lease.
2. Landlord, Tenant and Purchaser have concurrently herewith entered into a letter agreement regarding the Assignment, a copy of which is annexed hereto as Exhibit 1 (the Letter Agreement ).
3. In connection with the Assignment, Landlord hereby acknowledges and recognizes Purchaser as the tenant under the Severance Lease, subject, however, to the matters set forth in the Letter Agreement and in clause (ii) of the last sentence of Paragraph 7 hereof.
4. Purchaser, as a Tenant under the Severance Lease, also is entitled specifically to the rights and benefits granted Tenant under Section 18.1 (Quiet Enjoyment) of the Severance Lease.
5. The Severance Lease has not been further modified and is in full force and effect.
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6. The Charges payable by Tenant under the Severance Lease to Landlord have been paid in full up to and including the following date(s):
PILOT: June 30, 2009
Theater Surcharge: December 31, 2009
7. To the best knowledge of Landlord, neither an Event of Default under the Severance Lease nor any event that, with the giving of notice or the passage of time, or both, would constitute an Event of Default under the Severance Lease, has occurred. To the best knowledge of Landlord, no Default has occurred in Tenants performance of any covenant, agreement, obligation or condition contained in the Severance Lease. Notwithstanding the statements in the preceding two (2) sentences, Landlord has advised Tenant that (i) Tenant is not in compliance with its obligations to provide Landlord, for Landlords review and approval in accordance with the terms of the Severance Lease, with details relating to the design and programming of the flat screen televisions installed by Tenant in lieu of retail signage (the Signage Obligations ) and Landlord reserves all rights and powers to enforce the Signage Obligations and remedies with respect thereto, and (ii) with respect to the Prohibited Person status of Purchaser as a proposed transferee of the NYTC Sublease, Landlords knowledge is limited to a search of the NYC Vendex database indicating that no Caution or Warrant information was discovered.
8. From and after the date hereof, any notice that Tenant is entitled to receive under the Severance Lease shall be sent as follows:
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NYT Real Estate Company LLC |
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c/o The New York Times Company |
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620 Eighth Avenue |
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New York, New York 10018 |
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Attention: General Counsel |
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With copies to: |
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The New York Times Company |
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620 Eighth Avenue |
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New York, New York 10018 |
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Attention: Director of Real Estate |
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DLA Piper US LLP |
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1251 Avenue of the Americas |
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New York, New York 10020 |
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Attention: Martin D. Polevoy, Esq. |
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620 EIGHTH NYT (NY) LIMITED PARTNERSHIP |
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c/o W.P. Carey & Co. LLC |
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50 Rockefeller Plaza, 2 nd Floor |
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New York, NY 10020 |
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Attn: Asset Management, Director |
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Reed Smith LLP |
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599 Lexington Avenue, 29 th Floor |
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New York, NY 10029 |
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Attn: Real Estate Department, Chair |
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IN WITNESS WHEREOF, the undersigned duly executed this Estoppel, in its capacity as fee owner of the Property, as lessor under the Initial Ground Lease, as lessee under the Ground Lease and as Landlord under the Severance Lease and the New NYTC Sublease, on the date and year first above written.
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42 nd ST. DEVELOPMENT PROJECT, INC. |
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By: |
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Name: |
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Title: |
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STATE OF NEW YORK |
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COUNTY OF NEW YORK |
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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 of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in h capacity, and that by h signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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Notary Public |
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Commission Expires |
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Exhibit 1
Letter Agreement
[TO BE TYPED ON ESDCS LETTERHEAD]
March , 2009
NYT Real Estate Company LLC
c/o The New York Times Company
620 Eight Avenue
New York, New York 10018
620 Eight NYT (NY) Limited Partnership
c/o W.P. Carey & Co. LLC
50 Rockefeller Plaza, 2 nd Floor
New York, New York, 10020
Re: Sublease at 620 Eight Avenue, New York, New York 10018
Dear Sirs:
Reference is made that certain Agreement of Sublease (NYT) dated as of December 12, 2001 between The New York Times Building LLC, as landlord ( NYTB ) and NYT Real Estate Company LLC (the Tenant), as tenant, a memorandum of which was recorded October 24, 2003 as CRFN 2003000433125 in the Office of the City Register of the City of New York, New York County (the Initial NYTC Sublease ), which Initial NYTC Sublease was assigned by Assignment and Assumption Agreement dated as of August 15, 2006 made by NYTB to 42 ND St. Development Project, Inc., a subsidiary of New York State Urban Development Corporation d/b/a as Empire State Development Corporation, as successor in interest to NYTB ( 42DP and in its capacity as landlord, the Landlord ), and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644732, which Initial NYTC Sublease was amended by First Amendment to Agreement of Sublease (NYT) dated as of August 15, 2006 between Landlord and Tenant and recorded in the Office of the City Register of the City of New York, New York County on November 20, 2006 as CRFN 2006000644735 and by Second Amendment to Agreement of Sublease (NYT) dated as of January 29, 2007 between Landlord and Tenant and recorded in the Office of the City Register of the City of New York, New York County on February 22, 2007 as CRFN 2007000100157, and that certain Third Amendment to Agreement of Sublease (NYT) of even date herewith between Landlord and Tenant intended to be recorded in the Office of the City Register of the City of New York, New York County promptly hereinafter (the Initial NYTC Sublease, as so assigned and amended, the NYTC Sublease ). Capitalized terms used but not defined herein shall have the meaning ascribed to them in the NYTC Sublease.
Tenant wishes to assign to 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, all its rights, interests and obligations under the NYTC Sublease pursuant to an Assignment and Assumption of Sublease of even date herewith, a copy of which is attached hereto as Exhibit A (the Assignment ) and has requested that Landlord consent to the Assignment.
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Immediately following the Assignment, Tenant and Assignee intend to enter into that certain Lease Agreement of even date herewith, a copy of which is attached hereto as Exhibit B (the Lease Back Agreement ) pursuant to which, inter alia, Tenant shall undertake to perform all obligations of tenant under the NYTC Sublease on behalf of Assignee.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Landlord, Tenant and Assignee hereby agree as follows:
1. Consent . Landlord hereby consents to the Assignment subject to the following:
a. Assignee acknowledges and agrees that with respect to the Prohibited Person status of Assignee as a proposed transferee of the NYTC Sublease, Landlords consent is based on (i) a search of the NYC Vendex Database indicating that no Caution or Warrant information was discovered and (ii) Assignees representation that it is not a Prohibited Person.
b. Assignee hereby covenants and agrees that at all times during the term of the NYTC Sublease, Assignee, as tenant under the NYTC Sublease, shall retain, or, as long as the Lease Back Agreement shall be in force and effect, cause Tenant pursuant to the terms of the Lease Back Agreement, to retain, either (i) First NY Partners Management, LLC, a New York limited liability company, or (ii) any other manager having not less than five years experience in the ownership and/or management of at least five million square feet of office space ( a Qualified Manager ) to manage the Demised Premises.
c. Assignee and Tenant hereby represent to Landlord that the copy of the Lease Back Agreement attached hereto as Exhibit B is a true, complete and accurate copy of the Lease Back Agreement and covenant and agree that the Lease Back Agreement shall not be amended, amended and restated, modified or supplemented in any substantive respect without the prior written consent of Landlord; provided that, with respect to amendments, amendments and restatements, modifications and supplements which do not reduce Tenants obligations under the Lease Back Agreement to perform all obligations of tenant under the NYTC Sublease on behalf of Assignee, Landlords consent shall not be unreasonably withheld or delayed.
d. Assignee and Tenant hereby covenant and agree that the Lease Back Agreement shall not be assigned by Tenant, except to (i) a Related Entity of Tenant, or (ii) an entity constituting a Permitted Transferee pursuant to the NYTC Sublease.
2. Ratification of NYTC Sublease . Except as expressly provided in this letter agreement, all of the terms, covenants, and other provisions of the NYTC Subleases are hereby ratified and confirmed and shall continue to be in full force and effect in accordance with their respective terms. Nothing herein contained shall be deemed in any way to limit, restrict, or diminish Landlords rights under the NYTC Sublease, including Landlords rights under Article 13 of the NYTC Sublease with respect to future Transfers.
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3. Governing Law . This letter agreement shall be governed by, and construed in accordance with, the laws of the State of New York. All Actions arising out of or relating to this letter agreement shall be heard and determined exclusively in any New York federal court sitting in the Borough of Manhattan of The City of New York; provided, however, that if such federal court does not have jurisdiction over such Action, such Action shall be heard and determined exclusively in any New York state court sitting in the Borough of Manhattan of The City of New York.
4. Reliance . This letter agreement may be relied upon by the Tenant, the Assignee and any Recognize Mortgagee encumbering the Assignees interest in the NYTC Sublease, and any title insurance company, and shall bind and benefit the successors and assigns of those persons and the undersigned.
5. Counterparts . This letter agreement may be executed and delivered in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
Kindly execute below to acknowledge your agreement with the above and return one original to the undersigned.
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Sincerely, |
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42 ND ST. DEVELOPMENT PROJECT, INC |
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By: |
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Name: |
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Title: |
ACKNOWLEDGED AND AGREED THIS
DAY OF MARCH, 2009
NYT REAL ESTATE COMPANY LLC
By: |
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Name: Kenneth A. Richieri |
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Title: Manager |
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620 EIGHT NYT (NY) LIMITED PARTNERSHIP
By: |
620 EIGHTH GP NYT (NY) LLC, |
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a Delaware limited liability company, its general partner |
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By: |
CPA:17 LIMITED PARTNERSHIP, |
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A Delaware limited partnership, its sole member |
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By: |
ORPORATE PROPERTY ASSOCIATES |
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17 GLOBAL INCORPORATED, |
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a Maryland corporation, its general partner |
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By: |
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Name: Jason E. Fox |
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Title: Executive Director |
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STATE OF NEW YORK |
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COUNTY OF NEW YORK |
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On the day of March, in the year 2009, before me, the undersigned, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me he/she/they executed the same in his/her/their/ capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
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Notary Public |
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My Commission Expires: |
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STATE OF NEW YORK |
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)ss.: |
COUNTY OF NEW YORK |
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On the day of March, in the year 2009, before me, the undersigned, personally appeared Kenneth A. Richieri, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me he/she/they executed the same in his/her/their/ capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
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Notary Public |
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My Commission Expires: |
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STATE OF NEW YORK |
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)ss.: |
COUNTY OF NEW YORK |
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On the day of March, in the year 2009, before me, the undersigned, personally appeared Jason E. Fox, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me he/she/they executed the same in his/her/their/ capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
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Notary Public |
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My Commission Expires: |
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Exhibit H
CONDOMINIUM CERTIFICATION
CONDOMINIUM CERTIFICATION / ESTOPPEL CERTIFICATE / RECOGNITION AGREEMENT
To: 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP (Purchaser) and 620 EIGHTH LENDER NYT (NY) LIMITED PARTNERSHIP (WPC Lender)
Re: Units 0-A, 1-A, 2-A, 3-A, 4-A, 5-A, 6-A, 7-A, 8-A, 9-A, 10-A, 11-A, 12-A, 13-A, 14-A, 15-A, 16-A, 17-A, 18-A, 19-A, 20-A, 28-A (the Units ) in The New York Times Building Condominium located at 620 Eighth Avenue, New York, New York, and established under the Declaration of Leasehold Condominium of The New York Times Building Condominium, made as of August 4, 2006, by The New York Times Building LLC, and recorded in the Office of the City Register, New York County, on August 15, 2006, as CRFN # 2006000460293, as amended by that certain First Amendment to Declaration of Leasehold Condominium dated as of January 29, 2007, and recorded in the Office of the City Register, New York County, on February 8, 2007, as CRFN # 2007000075106, and further amended by that certain Second Amendment to the Declaration dated October 11, 2007, and recorded in the Office of the City Register, New York County, on January 8, 2008, as CRFN # 2008000008735, and further amended by that certain Third Amendment to the Declaration dated March 6, 2009, and intended to be recorded in the Office of the City Register, New York County, including the By-Laws and Rules and Regulations thereunder (the Declaration ).
Date: March , 2009
In connection with the proposed sale to Purchaser of the interest of NYT Real Estate Company LLC (the Seller ) in the Units (the Transaction ), the undersigned hereby severally certify to and agree with Seller, Purchaser and WPC Lender and their respective successors and/or assigns as follows as of the date hereof:
1. All initially capitalized terms that are defined in the Declaration and used but not defined herein shall have the meanings set forth for such terms in the Declaration.
2. The Condominium Board of Managers and the NYTC Board of Managers (collectively, the Boards ) hereby confirm, pursuant to Article VII, Section 8 of the Declaration, that:
(a) Unit Owner Expenses in respect of the Units have been paid through and including March 31, 2009, and Seller is not in default in the payment of any Unit Owner Expense with respect to the Units; and
1
(b) to such partys knowledge, Seller is not in default in the performance of any covenant, agreement or condition contained in the Declaration.
3. The Boards further hereby acknowledge, agree and confirm that:
(a) No portion of the Common Elements has been leased or is being operated as retail space as of the date hereof;
(b) The Condominium has not incurred any indebtedness (excluding trade debt incurred in the ordinary course) that constitutes a lien or encumbrance on the Condominium.
(c) Any notice that an NYTC Unit Owner or a Registered Mortgagee of an NYTC Unit Owner is entitled to receive under the Declaration and/or By-Laws shall be sent simultaneously and in like manner to Purchaser at the following address:
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620 EIGHTH NYT (NY) LIMITED PARTNERSHIP |
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c/o W.P. Carey & Co. LLC |
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50 Rockefeller Plaza, 2 nd Floor |
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New York, NY 10020 |
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Attn: Asset Management, Director |
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With a copy to: |
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Reed Smith LLP |
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599 Lexington Avenue, 29 th Floor |
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New York, NY 10029 |
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Attn: Real Estate Department, Chair |
4. Each of the Boards hereby further agree that, irrespective of whether Purchaser constitutes a Unit Owner under the Declaration, (i) the Boards recognize each of (A) that certain Mortgage, Security Agreement and Fixture Filing dated on or about the date hereof ( First Mortgage ) by and between Seller, as borrower, and WPC Lender, as lender, as the same may be amended, restated, increased, split, severed, assigned, consolidated and/or modified from time to time, and (B) that certain Wrap-Around Mortgage, Assignment of Rents, Security Agreement and Fixture Filing dated on or about the date hereof ( Wrap Mortgage ) by and between Seller, as borrower, and Purchaser, as lender, as the same may be amended, restated, increased, split, severed, assigned, consolidated and/or modified from time to time, as a Registered Mortgage under the terms of the Declaration; and (ii) the Boards recognize and shall consider Purchaser, and any future holder of either the First Mortgage or the Wrap Mortgage, as a Registered Mortgagee under the terms of the Declaration, with all of the rights and privileges thereof under the Declaration, including without limitation the rights to cast votes subject to and
2
in accordance with Section 9 of Article XX of the Declaration; provided, however, the acknowledgement in the case of (i) and (ii) above are subject to the assumption that (A) any such person described therein is not a Prohibited Person (as defined in the Unit Leases referred to in the Declaration) and (B) the second sentence of Article XX, Section 9(a) of the Declaration shall be complied with.
5. Any title insurer insuring the sale of the Units is entitled to rely on the Boards of Managers statements under Section 2 in issuing any title insurance policy to Purchaser.
6. Any mortgagee of Purchaser (i.e. the holder of any mortgage, deed of trust or other security instrument from Purchaser that (a) encumbers any of the Units or Purchasers interest therein and (b) secures Purchasers obligation to repay a loan, as the same may be amended, restated, increased, split, severed, assigned, consolidated and/or modified from time to time) also shall be entitled to rely on the Boards statements hereunder when considering whether to enter into a loan with Purchaser secured by the Units.
7. In connection with the Transaction and the assignment by Seller to NYT BUILDING LEASING COMPANY LLC, a New York limited liability company (collectively with its successors and assigns, NYT-2 ), of the subtenants interest under that certain Agreement of Sublease (NYT-2) of even date herewith by and between 42DP and Seller (the New NYTC Sublease ), the Boards hereby acknowledge and agree that Seller and Purchaser and their respective successors and/or assigns shall have no liability with respect to the New NYTC Sublease and the premises demised thereunder (the New NYTC Sublease Premises ) or any new sublease granted with a Registered Mortgagee for any portion of such New NYTC Sublease Premises. Furthermore, the Boards hereby release Seller and Purchaser and their respective successors and/or assigns from all obligations and liabilities accruing under or with respect to the New NYTC Sublease and the New NYTC Sublease Premises from and after the date hereof. The Boards shall have and retain all of their rights and remedies against NYT-2 with respect to the New NYTC Sublease and New NYTC Sublease Premises.
This document may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned duly executed this Certification / Estoppel Certificate on the date and year first above written.
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BOARD OF MANAGERS OF THE NEW
YORK
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By: |
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Name: |
David A. Thurm |
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Title: |
President |
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By: |
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David L. Berliner |
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Vice-President |
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NYTC BOARD OF MANAGERS OF THE
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By: |
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David A. Thurm |
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Title: |
President |
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5
EXHIBIT I
ASSUMPTION AGREEMENT
This Assumption Agreement (the Agreement ), dated March , 2009, is made by and among NYT REAL ESTATE COMPANY LLC, a New York limited liability company with an address at c/o The New York Times Company, 620 Eighth Avenue, New York, New York, 10018 ( Borrower ), 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership with an address at c/o W.P. Carey & Co. LLC, 50 Rockefeller Plaza, 2 nd Floor, New York, New York, 10020 ( New Borrower ) and 620 EIGHTH LENDER NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership with an address at c/o W.P. Carey & Co. LLC, 50 Rockefeller Plaza, 2 nd Floor, New York, New York, 10020 (the Lender ), with reference to the following facts:
RECITALS:
A. Lender previously made a loan in the original principal amount of $175,000,000.00 (the Loan ) to Borrower in connection with the Property (hereinafter defined).
B. The Loan is evidenced by Borrowers Promissory Note dated of even date herewith (the Note ) made by Borrower in favor of Lender and is secured by a Mortgage, Security Agreement and Fixture Filing dated of even date herewith (the Mortgage ) made by Borrower in favor of Lender covering certain property more particular described in the Mortgage (collectively, the Property ), including but not limited to, certain leasehold condominium units and undivided interest in condominium common elements appurtenant thereto all as more particularly described in Exhibit A attached hereto, all located in the building known as The New York Times Building having a street address of 620 Eighth Avenue, New York, New York.
C. In connection with the execution and delivery of that certain Lease Agreement of even date herewith executed by Borrower and New Borrower (the Lease ), Borrower proposes to have New Borrower assume its obligations under the Note, and Borrower and New Borrower have requested the Lenders consent to such assumption on the terms and conditions of this Agreement.
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, Borrower, New Borrower and Lender agree as follows:
1. Loan Documents . New Borrower acknowledges that (a) it has received from Lender and has approved, as to both form and content, the Note and the Mortgage; (b) it has read and understands all of the terms and conditions of the Note and the Mortgage; and (c) the Note and the Mortgage were duly executed by Borrower and are in full force and effect.
2. Assumption of Loan by New Borrower . New Borrower assumes the Note, and New Borrower (a) shall perform each and all of Borrowers obligations under the Note accruing from and after the date hereof; and (b) shall be bound by each and all of the terms of the Note from and after the date hereof.
3. Lender Consent . Lender consents to New Borrowers assumption of the Note. Lenders consent to New Borrowers assumption of the Note shall not constitute a consent to any other transfer of such interest in the Note or a waiver of any provision of the Note or the Mortgage, except as expressly provided in this Agreement with respect to the New Borrowers assumption of the Note.
1
4. No Modification of Loan Documents . Nothing contained in this Agreement shall be construed to obligate Lender to extend the time for payment of the Note or otherwise modify any of the Note or the Mortgage in any respect. Nothing in this Agreement, in any way, shall affect the validity or priority of the Mortgage.
5. Status of Loan . Lender, Borrower and New Borrower acknowledge and agree that (a) there are no defaults by Lender or Borrower under any of the Note or the Mortgage, and (b) except as expressly set forth in this Agreement, neither the Note nor the Mortgage have been modified, and the Note and the Mortgage are each binding and enforceable in accordance with their terms.
6. Secured Obligation . New Borrower acknowledges that its obligations under this Agreement and the Note are secured by the Mortgage.
7. Subject to Lenders Rights . New Borrowers assumption of the Note at all times shall be subject to and in no way shall affect, diminish or impair Lenders rights and remedies under the Note or the Mortgage.
8. Authority . Borrower and New Borrower each has the full power and authority to enter into and perform all of its obligations under this Agreement, and this Agreement, when executed by the person or entities signing this Agreement on behalf of Borrower and New Borrower, respectively, shall constitute a legal, valid and binding obligation of Borrower and New Borrower enforceable in accordance with its terms. The persons or entities executing this Agreement on behalf of Borrower and New Borrower have been duly authorized to execute this Agreement by all requisite action on the part of Borrower and New Borrower.
9. Third Party Mortgagor Provisions .
(a) Third Party Mortgagor . Borrower acknowledges and agrees that Borrower understands that the Note and the Mortgage secure certain obligations of Borrower, as maker of the Note, notwithstanding the subsequent assumption by New Borrower of such obligations pursuant to this Agreement.
(b) Waivers of Subrogation and Contribution . Borrower unconditionally and irrevocably waives any and all rights and defenses that Borrower may have because the obligations secured by the Note and the Mortgage are secured by real property. This means, among other things: (a) Lender may enforce its rights and remedies under the Note and the Mortgage against Borrower without first foreclosing on any real or personal property collateral owned by New Borrower ( Makers Collateral ), if any; and (b) if Lender forecloses on any Makers Collateral, if any: (i) the amount of the obligations secured by the Note and the Mortgage may be reduced only by the price for which such Makers Collateral is sold at the foreclosure sale, even if it is worth more than the sale price; and (ii) Lender may enforce its rights and remedies under the Note and the Mortgage against Borrower even if Lender, by foreclosing on such Makers Collateral, has destroyed any right Borrower may have to collect from New Borrower or from any other person or entity.
(c) Obligations Independent; Other Waivers . Borrower agrees that (i) its obligations and liabilities under the Note and the Mortgage are independent of and in
2
addition to the undertakings of New Borrower pursuant to the Note; and (ii) a separate action may be brought to enforce the provisions of the Note and the Mortgage against Borrower whether or not New Borrower is a party to any such action. Lender shall be under no obligation to marshal any assets in favor of Borrower. Borrower hereby waives (i) presentment, demand, protest, notice of acceptance, notice of dishonor, notice of nonperformance and any other notice with respect to any of the obligations secured by the Note and the Mortgage, and promptness in commencing suit against any party thereto or liable thereon, or in giving any notice to or making any claim or demand hereunder upon it; (ii) any right to require Lender to (A) proceed against New Borrower or any other party liable with respect to such obligations, (B) proceed against or exhaust any security held by New Borrower, or (C) pursue any remedy in Lenders power whatsoever; (iii) any defense arising by reason of any disability or other defense of New Borrower or by reason of the cessation from any cause whatsoever of the liability of New Borrower other than full and final payment of the obligations secured by the Note and the Mortgage; and (iv) all rights and benefits that might otherwise be available to Borrower under any suretyship defenses or other defenses otherwise available under applicable law.
(d) Miscellaneous . Borrower warrants that (a) to the extent the Note and the Mortgage secure the obligations of New Borrower to Lender, the Note and the Mortgage were executed at the request of Borrower; and (b) Lender has made no representation to Borrower as to the creditworthiness of New Borrower. Borrower agrees to keep adequately informed, as it deems appropriate, of any facts, events or circumstances that might in any way affect its risks and liabilities under the Note or the Mortgage and further agrees that Lender shall have no further obligation to disclose to Borrower information or materials acquired in the course of Lenders relationship with New Borrower.
(e) Further Assurances . In the event the Note or the Mortgage are assigned by Lender to a new third party lender or any such new third party lender amends, restated, consolidates or modifies the Note or the Mortgage, Borrower shall acknowledge any such assignment and any such amendment, restatement, consolidation or modification in writing as reasonably required by Lender, which acknowledgement, may include, without limitation, Borrower acknowledging certain third party mortgagor provisions consistent with the terms of this Agreement to be set out in any such amendment, restatement, consolidation or modification, subject to the provisions of paragraph 9(g) below.
(f) Nonrecourse Obligations . Subject to the qualifications that the Mortgage and the estate of the Borrower in the Property shall continue to secure the Note, notwithstanding the subsequent assumption by New Borrower of such obligations pursuant to this Agreement, the Borrower shall be liable for payment and performance of all of the obligations, covenants and agreements of the New Borrower under the Note to the full extent (but only to the extent) of all of Borrowers interest in the Property. If a default occurs in the timely and proper payment of any portion of the Note, except to the extent set forth above in this paragraph 9(f), Borrower shall not be personally liable for the repayment of any of the principal of, interest on, or prepayment fees or late charges, or other charges or fees due under the Note.
(g) Subordination . If the Option Lapse Date (as defined in the Lease) shall occur, the Beneficial Transfer Documents (as defined in the Lease) have been delivered, and the Note shall not have been fully paid, on the Option Lapse Date, provided the holder of the Note shall be an Affiliate (as defined in the Lease) of the Lender, the Lender will promptly grant Borrower a subordination non-disturbance and attornment agreement (an Subordination ) substantially in the form of Exhibit B , annexed hereto. However, upon any refinance of the Note
3
and an assignment of the Mortgage to any person or entity who is not an Affiliate of the Lender (the Refinanced Mortgage ), any such Subordination shall be terminated and, immediately upon such termination, replaced by the SNDA (as defined in the Lease) required by the terms of Paragraph 32(a) of the Lease with the same force and effect as if the Refinanced Mortgage were a Mortgage (as defined in the Lease) (other than the Landlord Mortgage (as such term is defined in the Lease)).
10. No Waiver . No waiver by Lender of any of its rights or remedies in connection with the Loan shall be effective unless such waiver is in writing and signed by Lender. Without limiting the generality of the preceding sentence, nothing contained in this Agreement nor any delay or omission by Lender in exercising or enforcing any of its rights and remedies in connection with the Loan constitutes or shall be construed as a waiver by Lender of (a) any breach or default by Borrower or New Borrower under the Note or the Mortgage; (b) any of Lenders rights or remedies in connection with the Loan; or (c) any of the provisions of the the Note or the Mortgage. Lenders rights and remedies under this Agreement are cumulative with and in addition to any and all legal and equitable rights and remedies that Lender may have in connection with the Loan.
11. Entire Agreement . Except as to those matters to be governed by the Lease as between Borrower and New Borrower only, this Agreement and the Note and the Mortgage contain the entire agreement and understanding among New Borrower, Borrower and Lender concerning the matters covered by this Agreement and the Note and the Mortgage and supersede all prior and contemporaneous agreements, statements, understandings, terms, conditions, negotiations, representations and warranties, whether written or oral, made by Lender, Borrower or New Borrower concerning the matters covered by this Agreement and the Note and the Mortgage.
12. Modifications . This Agreement may be modified only by a written agreement signed by New Borrower, Borrower and Lender.
13. Descriptive Headings; Interpretation . The headings to sections of this Agreement are for convenient reference only, do not limit in any way or amplify the terms of this Agreement, and shall not be used in interpreting this Agreement. For purposes of this Agreement, the term including shall be deemed to mean including without limitation.
14. No Claims . Borrower and New Borrower each acknowledges and agrees that (a) it has no offsets or deductions of any kind against any indebtedness secured by the Mortgage or otherwise owing to Lender under the Note, and (b) it has no defenses or claims against Lender in connection with the Loan.
15. Continuing Effect of Documents . The Note, as modified by this Agreement, and the Mortgage shall remain in full force and effect in accordance with their terms and are affirmed by New Borrower.
16. Time of the Essence . Time is of the essence with respect to each provision of this Agreement.
17. Counterparts; Successors . This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute
4
one and the same agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns.
18. Review by Borrower and New Borrower with Independent Counsel . Borrower and New Borrower each acknowledges and agrees that (a) it has carefully read all of the terms and conditions of this Agreement and the documents contemplated by this Agreement, and it fully understands all of the terms and conditions of this Agreement, and (b) it has entered into this Agreement freely and voluntarily, after having consulted with its independent legal counsel or after having had a full and adequate opportunity to consult with its independent legal counsel.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
5
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BORROWER : |
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NYT REAL ESTATE COMPANY LLC, a |
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New York limited liability company |
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By: |
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Name: Kenneth A. Richieri |
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Title: Manager |
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NEW BORROWER : |
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620 EIGHTH NYT (NY) LIMITED |
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PARTNERSHIP, a Delaware limited |
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partnership |
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By: 620 EIGHTH GP NYT (NY) LLC, a |
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Delaware limited liability company, its |
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general partner |
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By: CPA:17 LIMITED PARTNERSHIP, a |
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Delaware limited partnership, its sole |
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member |
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By: CORPORATE PROPERTY |
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ASSOCIATES 17 GLOBAL |
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INCORPORATED, a Maryland corporation, |
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its general partner |
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By: |
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Name: Jason E. Fox |
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Title: Executive Director |
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LENDER : |
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620 EIGHTH LENDER NYT (NY) |
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LIMITED PARTNERSHIP, a Delaware |
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limited partnership |
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By: 620 EIGHTH GP NYT (NY) LLC, a |
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Delaware limited liability company, its |
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general partner |
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By: CPA:17 LIMITED PARTNERSHIP, a |
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Delaware limited partnership, its sole |
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member |
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By: CORPORATE PROPERTY |
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ASSOCIATES 17 GLOBAL |
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INCORPORATED, a Maryland corporation, |
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its general partner |
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By: |
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Name: Jason E. Fox |
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Title: Executive Director |
7
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 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 Surveyors 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 Registers 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;
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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.
9
SCHEDULE OF UNITS
UNIT DESIGNATION |
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TAX LOT |
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PERCENTAGE INTEREST
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0-A |
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1001 |
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0.6627 |
% |
1- A |
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1003 |
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2.0132 |
% |
1-E |
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1007 |
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0.0691 |
% |
2-A |
|
1009 |
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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 |
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1.7325 |
% |
8-A |
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1015 |
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1.7325 |
% |
9-A |
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1016 |
|
1.7325 |
% |
10-A |
|
1017 |
|
1.7325 |
% |
11-A |
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1018 |
|
1.7325 |
% |
12-A |
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1019 |
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1.7325 |
% |
13-A |
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1020 |
|
1.7325 |
% |
14-A |
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1021 |
|
1.7440 |
% |
15-A |
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1022 |
|
1.3998 |
% |
16-A |
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1023 |
|
1.7484 |
% |
17-A |
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1024 |
|
1.7207 |
% |
18-A |
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1025 |
|
1.7711 |
% |
19-A |
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1026 |
|
1.7711 |
% |
20-A |
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1027 |
|
1.7711 |
% |
28-A |
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1035 |
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0.4446 |
% |
10
EXHIBIT B
SNDA
11
LENDER
EXHIBIT
SUBORDINATION, NON-DISTURBANCE,
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the day of (this Agreement) between NYT REAL ESTATE COMPANY LLC, a New York limited liability company, with offices at 620 Eighth Avenue, New York, New York (Tenant) and , a having offices at (as hereinafter defined; and in such capacity, together with its successors in such capacity, Mortgagee).
W I T N E S S E T H :
WHEREAS, Mortgagee is the present owner and holder of the mortgages described in Schedule 1 attached hereto and made a part hereof (such mortgages, as the same may be amended, modified, extended, renewed, supplemented, spread, consolidated or replaced, and all advances heretofore made, or hereafter to be made, pursuant thereto, being hereinafter collectively referred to as the Mortgage ) covering the lessees interest under a certain lease more particularly described in Exhibit A-1 , including an interest in certain leasehold condominium units in The New York Times Building Condominium more particularly described on Exhibit A-2 , located in the building having a street address of 620 Eighth Avenue, New York, New York (hereinafter all or any portion of the foregoing leasehold interest subject to the lien of the Mortgage shall be referred to as the Property ); and
WHEREAS, ( Landlord ) is the owner of the aforementioned Property.
WHEREAS, Tenant is the holder of a subleasehold estate in the Property (the Premises ) under and pursuant to the provisions of a certain Lease Agreement dated as of , 2009, between Landlord and Tenant (such Lease Agreement (including all exhibits and schedules attached thereto, as the same may be amended, modified, extended, renewed, supplemented or replaced with, to the extent required hereunder, the consent of Mortgagee, being hereinafter referred to as the Lease ); and
WHEREAS, Tenant has agreed to subordinate the Lease to the Mortgage and to the lien thereof and Mortgagee has agreed to grant non-disturbance to Tenant under the Lease on the terms and conditions hereinafter set forth;
NOW, THEREFORE, Mortgagee and Tenant agree as follows:
1. Subordination . Tenant agrees that the Lease and all of the terms, covenants and provisions thereof and all rights, remedies and options of Tenant thereunder are and shall at all times continue to be fully subject and subordinate in all respects to the Mortgage, and to all advances heretofore made, and hereafter to be made,
pursuant thereto provided that, as between Landlord and Tenant, nothing contained in this Agreement shall be deemed to affect the obligations of Landlord or the rights of Tenant under the Lease. This provision shall be self-operative and no further instrument shall be required to confirm or perfect such subordination. However, at the request of Mortgagee and at no cost to Tenant, Tenant shall execute and deliver such other documents reasonably satisfactory to Tenant and take such other action as Mortgagee reasonably requests to perfect, confirm or effectuate such subordination, provided that such documents do not diminish any of Mortgagees obligations or increase any of Tenants obligations or adversely affect any of Tenants rights hereunder or under the Lease.
2. Non-Disturbance . Mortgagee agrees that (a) Mortgagee shall not terminate the Lease nor shall Mortgagee disturb or affect Tenants leasehold estate, use and possession of the Premises or any portion thereof in accordance with the terms of the Lease or any rights of Tenant under the Lease by reason of the subordination of the Lease to the Mortgage or by reason of any foreclosure action or any other action or proceeding instituted under or in connection with the Mortgage, including, without limitation any right to purchase and certain rights to receive and retain insurance proceeds and condemnation awards in respect of the Premises, all as more particularly set forth in the Lease, and (b) if any action or proceeding is commenced by Mortgagee for the foreclosure of the Mortgage or the sale of the Property pursuant to the Mortgage or any other proceeding to enforce the Mortgage, Tenant shall not be named or joined as a party therein, and the sale of the Property in any such action or proceeding and the exercise by Mortgagee of any of its other rights under the Mortgage shall be made subject to all rights of Tenant under the Lease, provided that (i) at the time of the commencement of any such action or proceeding or at the time of any such sale or exercise of any such other rights set forth in clauses (a) or (b) of this Section 2 , (x) the Lease shall be in full force and effect and (y) Tenant shall not be in default (after all applicable notices have been given and all applicable grace periods have expired in accordance with the terms of the Lease) under any of the terms, covenants or conditions of the Lease, and (ii) Tenant may be so named or joined in any such action or proceeding if required by law, so long as (1) in connection with such naming and joining of Tenant, Mortgagee will not seek to terminate or extinguish Tenants rights under this Agreement or the Lease, except as specifically set forth elsewhere in this Agreement, and (2) none of Tenants rights under this Agreement or the Lease shall be impaired or otherwise affected by such naming or joining of Tenant. The immediately preceding sentence shall in no way be deemed a waiver of Mortgagees rights to enforce any remedy against Tenant under the Lease, as Landlord, pursuant to the terms of the Lease in the event that Mortgagee becomes the owner of the Property by reason of any such sale or exercise of any such other rights set forth in clauses (a) or (b) of this Section 2 .
3. Non-Liability . If and when Mortgagee shall take possession of the Property or a receiver shall be appointed therefor, or, if Mortgagee or another purchaser shall become the owner of the Property by reason of a foreclosure, deed in lieu of foreclosure or otherwise (Mortgagee or such other purchaser being hereinafter referred as Purchaser ), and the conditions set forth in clauses (x) and (y) of Section 2 above have
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been met at the time Purchaser becomes owner of the Property, the Lease shall, notwithstanding any provision to the contrary therein contained, continue in full force and effect as a direct lease between Purchaser and Tenant, and Purchaser shall be subject to the provisions of the Lease with the same force and effect as if the Lease was a direct lease between Purchaser and Tenant, provided that in no event shall Purchaser or its successors or assigns, unless such Mortgagee or its successors or assigns shall be an entity which controls, is controlled by, or is under common control with Landlord (control for purposes of this Agreement 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), be:
(a) liable for any previous act, omission or negligence of any prior landlord under the Lease (including, without limitation, Landlord) or the failure or default of any prior landlord (including, without limitation, Landlord) to comply with any of its obligations under the Lease except to the extent such act, omission, negligence, failure or default accrues and continues after the date that Purchaser succeeds to the interest of Landlord under the Lease and Purchaser shall have received written notice of such act, omission, negligence, failure or default and has had a reasonable opportunity to cure the same, all subject to the terms and conditions of the Lease; or
(b) subject to any defenses, offsets or counterclaims that Tenant may have against any prior landlord (including, without limitation, Landlord) which accrued prior to the date upon which Purchaser shall become the owner of the Property in connection with a default by Landlord thereunder,; or
(c) bound by any payment of base rent or additional rent that Tenant might have made more than one month in advance of the due date of such payment unless the prepayment was expressly approved in writing by the Mortgagee; or
(d) bound by any action listed in Section 4 below made without Mortgagees prior written consent; or
(e) liable for any brokerage commissions or costs, expenses or liabilities in connection therewith; or
(f) liable for any monies on deposit with Landlord to the credit of Tenant except to the extent received by Mortgagee.
4. No Changes to Lease . The Lease constitutes an inducement to Mortgagee to enter into this Agreement. Consequently, Tenant shall not, without obtaining the prior written consent of Mortgagee, (i) enter into any agreement modifying, amending, extending, renewing, terminating or surrendering the Lease which are not specifically referenced in the Lease, (ii) prepay any of the base rent or any additional rent due under the Lease for more than one (1) month in advance of the due dates thereof (except as permitted under Section 3(c) above), (iii) voluntarily surrender the premises demised under the Lease, in whole or in part, or cancel or terminate the Lease, except as
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and to the extent provided for in the Lease and after Tenants compliance with Section 6(a) below, (iv) assign the Lease or sublet the premises demised under the Lease or any part thereof other than pursuant to the provisions of the Lease or (v) subordinate or permit the subordination of the Lease to any lien other than the Mortgage except to the extent provided or permitted by the Lease; and any such prohibited amendment, modification, termination, cancellation, prepayment, voluntary surrender, assignment or subletting, without Mortgagees prior consent, shall not be binding upon Mortgagee.
5. Attornment . If the interest of Landlord under the Lease is transferred (or surrendered or terminated) to Purchaser by reason of Landlords default under the Mortgage or by reason of assignment of the Lease (or any similar device) in lieu of transfer (or surrender or termination or deed in lieu of foreclosure or other similar device) following Landlords default, Tenant shall attorn to Purchaser and recognize Purchaser as Tenants landlord under the Lease, and so long as Tenant is not in default under any of the terms, covenants and conditions of the Lease beyond any applicable grace or cure period, Purchaser shall recognize Tenant as the tenant under the Lease and Purchaser and Tenant shall be bound to each other under all of the terms, covenants and conditions of the Lease (except as set forth in paragraph 3) for the balance of the term thereof and for any extension or renewals thereof that are effected in accordance with the Lease, with the same effect as if Purchaser were the Landlord under the Lease, such recognition and attornment to be effective as of the time Purchaser succeeds to the interest of Landlord under the Lease, without the execution of any further agreement. However, Tenant agrees, at its own expense, to execute and deliver, at any time and from time to time upon request of Purchaser, any agreement reasonably satisfactory to Purchaser that may reasonably be necessary or appropriate to evidence such attornment and recognition provided that such agreement does not increase the liabilities and obligations of Tenant hereunder nor diminish the Tenants rights hereunder, other than to a deminimus extent . Failure of Tenant to so execute any such an agreement shall not vitiate such attornment and recognition.
6. Notice of Default .
(a) Tenant will promptly deliver to Mortgagee (and any subsequent Mortgagee provided that such Mortgagee provides written notice to Tenant of its acquisition of Mortgagees interest in the Mortgage and designates the address to which such notices are to be sent) any written notice from Tenant to Landlord of any default of Landlord or other circumstance that would entitle Tenant to cancel the Lease or to abate the rent or additional rent or any other amounts payable thereunder. Tenant agrees that notwithstanding any provision of the Lease, no cancellation thereof or abatement shall be effective unless Tenant shall have sent Mortgagee a notice in the manner herein provided and Mortgagee has failed to cure the default giving rise to such right to cancellation or abatement within the time period as Landlord may be entitled to under the Lease plus thirty (30) days after receipt of such notice or if such default cannot be cured within that time, then such additional time as may be necessary if, within such thirty (30) days, Mortgagee has notified Tenant of its intention to cure such default and has commenced and is diligently pursuing the remedies necessary to cure such default (including, without
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limitation, commencement of foreclosure proceedings or eviction proceedings, if necessary, to effect such cure) provided that such period shall in no event exceed ninety (90) days. No cure of Landlords default by Mortgagee shall be deemed an assumption of Landlords other obligations under the Lease and no right of Mortgagee hereunder to receive any notice or to cure any default shall be deemed to impose any obligation on Mortgagee to cure (or attempt to cure) any such default.
(b) Tenant agrees, from time to time, to state in writing to Mortgagee, upon request whether or not, to the best of Tenants actual knowledge, any default on the part of Landlord exists under the Lease and the nature of any such default, provided, however, that Tenant shall not have any liability to Mortgagee to the extent such statement shall not be true and correct in all material respects but such statement shall estop Tenant as to matters as to which Tenant had so stated.
7. Acknowledgement of Assignment of Lease .
(a) Without limitation of its other consents, agreements and covenants in this Agreement, Tenant hereby:
(i) consents to the absolute assignment of, and creation of a security interest in, all right, title and interest of Landlord in, to and under the Lease and all rents and other sums, moneys and other amounts payable thereunder and all rights of Landlord thereunder, in each case to and for the benefit of Mortgagee as provided and for the purposes as may be set forth in such assignment (the Assignment of Leases );
(ii) agrees that upon notice from Mortgagee, or its successors or assigns at least five (5) business days prior to the date such payments are due, all rents and other sums, moneys and other amounts due or to become due and payable by Tenant under the Lease from time to time (including, without limitation, all base rent and additional rent thereunder ) shall be paid to Mortgagee or as otherwise directed by Mortgagee and Landlord shall have no claim against Tenant in connection therewith; provided, however, such receipt of rents and other sums, moneys and other amounts shall not relieve Landlord of its obligations under the Lease, and Tenant shall continue to look to Landlord only for performance thereof; and further provided that Tenant shall retain all of its rights as against Landlord to the extent Landlord shall fail to pay or perform such obligation;
(iii) agrees that, from and after the date that Mortgagee notifies Tenant that there has been an Event of Default under the Mortgage, any notice, demand, approval, consent, election, determination, waiver or other action given or taken by Mortgagee or in respect of the Lease from time to time shall have the same force and effect as a notice, demand, approval, consent, election, determination, waiver or other action given or taken by Landlord thereunder in respect of the subject matter thereof and that, in the event of an inconsistent notice, demand,
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approval, consent, election, determination, waiver or other action given or taken from or by Landlord or Mortgagee, the notice, demand, approval, consent, election, determination, waiver or other action given or taken from or by Mortgagee shall control and be dispositive and binding on Tenant and Landlord for all purposes of the Lease;
(iv) agrees, upon request of Mortgagee, to provide Mortgagee with estoppel certificates addressed to Mortgagee and containing the information required under Paragraph 25 of the Lease; and
(v) agrees that Mortgagee shall not, by reason of the Assignment of Leases, be subject to any obligation, duty or liability under the Lease, except that when Mortgagee is exercising rights under the Mortgage, it shall do so in accordance with the terms and conditions thereof and, to the extent applicable, this Agreement.
(b) Landlord hereby authorizes Tenant to comply with the provisions of clause (a) above and Landlord shall have no claim against Tenant in connection with any such payment to the Mortgagee made in accordance with clause (a) above.
8. Representations . Tenant represents and warrants to Mortgagee that as of the date hereof (i) Tenant is the owner and holder of the tenants interest under the Lease; (ii) the Lease (including exhibits and schedules thereto) is a complete statement of the agreement between Landlord and Tenant with respect to the leasing of the Premises, has not been modified or amended except as otherwise indicated on Schedule 2 annexed hereto; (iii) the Lease is in full force and effect; (iv) to the best of Tenants actual knowledge, neither Tenant nor Landlord is in default under any of the terms, covenants or provisions of the Lease; (v) no rents, additional rents or other sums payable under the Lease have been paid for more than one (1) month in advance of the due dates thereof; (vi) to the best of Tenants actual knowledge, there are no present offsets or defenses to the payment of the rents, additional rents, or other sums payable under the Lease except as otherwise indicated on Schedule 3 annexed hereto. Tenant represents that the Lease and this Agreement have been duly authorized and entered into by Tenant and constitute the valid and binding obligations of Tenant.
9. Notices .
9.1 All notices, consents, approvals, demands and other communications (notices) hereunder shall be in writing and shall be delivered in person, sent by Federal Express or overnight courier or sent by registered or certified mail, return receipt requested, to any party hereto at its address below stated or at such other address and to such other persons (but not more than three at any one time) of which it shall have notified the party giving such notice in writing. Notices to Mortgagee shall be addressed to Mortgagee at , with a copy to , and a copy of all notices given to
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Mortgagee shall simultaneously be sent to its counsel, .
Notices to Tenant shall be addressed to Tenant at , and a copy of all notices given to Tenant shall simultaneously be sent to its counsel, .
Any notice sent by such registered or certified mail shall be deemed to have been served when the addressee either actually receives such notice or refuses to accept delivery thereof. Any notice sent by Federal Express or overnight courier shall be deemed to have been served two (2) business days after the date it is sent. Any notice sent by personal delivery shall be deemed to have been served on the date of such delivery. Any notice shall be deemed effective and deemed given by Mortgagee or Tenant, as the case may be, if signed and sent by its respective counsel.
9.2 Tenant shall promptly send Mortgagee copies of any termination or default notice given by Tenant under the Lease.
10. Limitations on Purchasers Liability . In no event shall the Purchaser, nor any heir, legal representative, successor, or assignee of the Purchaser have any personal liability for the obligations of Landlord under the Lease and should the Purchaser succeed to the interests of the Landlord under the Lease, Tenant shall look only to the estate and property of any such Purchaser in the Property for the satisfaction of Tenants remedies for the collection of a judgment (or other judicial process) requiring the payment of money in the event of any default by any Purchaser as landlord under the Lease, and no other property or assets of any Purchaser shall be subject to levy, execution or other enforcement procedure for the satisfaction of Tenants remedies under or with respect to the Lease; provided, however, that the Tenant may exercise any other right or remedy provided thereby or by law in the event of any failure by Landlord to perform any such obligation.
11. Miscellaneous .
(a) This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto and may not be modified or terminated orally. In the event of the assignment or transfer of the interest of Mortgagee in the Mortgage, all obligations and liabilities of Mortgagee under this Agreement shall terminate, and thereupon all such obligations and liability shall automatically be the responsibility of the party to whom Mortgagees interest is assigned or transferred and such party shall be deemed to have assumed the same. This Agreement and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the law of the State of New York. This Agreement may be signed in counterparts.
(b) The term Mortgagee as used in this Agreement shall include the successors and assigns of Mortgagee and any person, party or entity which shall become
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the owner of Landlords interest in the Premises by reason of foreclosure of the Mortgage or the acceptance of a deed (or assignment) in lieu of a foreclosure of the Mortgage or other similar process. The term Landlord as used in this Agreement shall mean and include the present landlord under the Lease and such landlords successors in interest under the Lease. The term Tenant as used in this Agreement shall mean and include the present tenant and any permitted successor or assignee under the Lease.
(c) This Agreement constitutes the final expression of the entire agreement of the parties with respect to the subordination of the Lease to the lien of the Mortgage. This Agreement may not be modified other than by an agreement in writing, signed by the parties hereto or their respective successors in interest.
(d) Except as modified by this Agreement, all of the terms and provisions of the Lease will remain in full force and effect. If there are any conflicts between the Lease and this Agreement, the terms and provisions of this Agreement will control.
(e) LANDLORD, TENANT AND MORTGAGEE HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT.
[Signatures appear on the following page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
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10
LENDER
EXHIBIT A-1
SEVERANCE LEASE
Agreement of Sublease dated as of December 12, 2001 between The New York Times Building LLC ( NYTB ), as landlord, and NYT Real Estate Company LLC, a New York limited liability company ( Tenant ), NYTBs 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 ), a subsidiary of New York State Urban Development Corporation ( UDC ) d/b/a Empire State Development Corporation ( ESDC ), a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, as landlord (in such capacity, Landlord ), which Agreement of Sublease was amended pursuant to First Amendment to Agreement of Sublease (NYT) dated as of 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 as of 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 recorded in the Office of the City Register of the City of New York on , 2009 as CRFN (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 Surveyors 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 Registers 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 |
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TAX LOT |
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PERCENTAGE INTEREST
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0-A |
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1001 |
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0.6627 |
% |
1- A |
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1003 |
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2.0132 |
% |
1-E |
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1007 |
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0.0691 |
% |
2-A |
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1009 |
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4.7805 |
% |
3-A |
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1010 |
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4.7579 |
% |
4-A |
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1011 |
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4.5636 |
% |
5-A |
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1012 |
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1.6352 |
% |
6-A |
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1013 |
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1.7325 |
% |
7-A |
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1014 |
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1.7325 |
% |
8-A |
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1015 |
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1.7325 |
% |
9-A |
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1016 |
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1.7325 |
% |
10-A |
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1017 |
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1.7325 |
% |
11-A |
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1018 |
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1.7325 |
% |
12-A |
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1019 |
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1.7325 |
% |
13-A |
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1020 |
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1.7325 |
% |
14-A |
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1021 |
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1.7440 |
% |
15-A |
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1022 |
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1.3998 |
% |
16-A |
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1023 |
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1.7484 |
% |
17-A |
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1024 |
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1.7207 |
% |
18-A |
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1025 |
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1.7711 |
% |
19-A |
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1026 |
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1.7711 |
% |
20-A |
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1027 |
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1.7711 |
% |
28-A |
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1035 |
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0.4446 |
% |
State of New York )
County of )
ss.:
On the day of in the year before me, the undersigned, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
Signature and Office of individual
taking acknowledgement
State of New York )
County of )
ss.:
On the day of in the year before me, the undersigned, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
Signature and Office of individual
taking acknowledgement
State of New York )
County of )
ss.:
On the day of in the year before me, the undersigned, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
Signature and Office of individual
taking acknowledgement
TITLE CONFIRMATION LETTER
Chicago Title Insurance Company |
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Commercial Service Unit, 711 Third Avenue, 5 th Floor, New York, N.Y. 10017-4014 |
March , 2009
620 EIGHTH NYT (NY) LIMITED PARTNERSHIP
c/o W. P. Carey & Co. LLC
50 Rockefeller Plaza, 2nd Floor
New York, New York 10020
620 EIGHTH NYT LENDER (NY) LIMITED PARTNERSHIP
c/o W. P. Carey & Co. LLC
50 Rockefeller Plaza, 2nd Floor
New York, New York 10020
NYT REAL ESTATE COMPANY LLC
c/o The New York Times Company
620 Eighth Avenue
New York, New York 10018
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Title No.: |
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3108-00805 |
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Premises: |
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New York Times, 620-28 8th Avenue, New York, NY |
Gentlemen:
We have reviewed the following documents: (1) Wrap-Around Mortgage dated on or about the date hereof (the Wrap Mortgage) made by NYT REAL ESTATE COMPANY LLC, as mortgagor, in favor of 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, as mortgagee, and NEW YORK STATE URBAN DEVELOPMENT CORPORATION, D/B/A/ EMPIRE STATE DEVELOPMENT CORPORATION, as co-mortgagee, and (2) First Mortgage dated on or about the date hereof made by NYT REAL ESTATE COMPANY LLC, as mortgagor, in favor of 620 EIGHTH NYT LENDER (NY) LIMITED PARTNERSHIP, as mortgagee, and NEW YORK STATE URBAN DEVELOPMENT CORPORATION, D/B/A/ EMPIRE STATE DEVELOPMENT CORPORATION, as co-mortgagee, (the First Mortgage); both of which are being recorded in connection with the transaction being closed today in connection with which we are, as coinsurers, issuing lenders title insurance policies to 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP and 620 EIGHTH NYT LENDER (NY) LIMITED PARTNERSHIP, respectively.
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This will confirm that upon an assignment of the underlying First Mortgage or the Wrap Mortgage to a third-party lender in connection with which an appropriate Real Property Law Section 275 Affidavit is filed we will insure the assignment of the First Mortgage, the Wrap Mortgage and/or its respective amendment, modification, consolidation and/or restatement by the new holder, without payment of new mortgage recording tax on the outstanding principal amount of the First Mortgage or the Wrap Mortgage so assigned.
The foregoing assurance is subject to: ( a ) no re-advances of principal having been made which are secured by the underlying the First Mortgage or the Wrap Mortgage; ( b ) if the new holder of the First Mortgage or the Wrap Mortgage, as applicable, shall by its respective amendment, modification, consolidation and/or restatement increase the outstanding principal indebtedness at such time, the applicable mortgage recording tax payable on such increase in the outstanding principal indebtedness shall be paid; ( c ) any unresolved exceptions to title revealed by a title continuation as of such date provided such exception to title shall have created a lien subsequent to the date of the First Mortgage or the Wrap Mortgage, as applicable; ( d ) the occurrence of the closing of such third party mortgage transaction; ( e ) payment of the then applicable title insurance premium or other related charges; ( f) payment of any recording charges; and ( g ) any changes in applicable law.
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Very truly yours, |
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CHICAGO TITLE INSURANCE COMPANY |
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By: |
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ACKNOWLEDGED AND AGREED BY
THE FOLLOWING OTHER CO-INSURERS
ON THIS DAY OF MARCH, 2009
FIRST AMERICAN TITLE INSURANCE COMPANY OF NEW YORK |
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STEWART TITLE INSURANCE COMPANY, through its division, |
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TITLE ASSOCIATES, INC. |
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EXHIBIT K
IDA CONSENT, SUBORDINATION AND ASSUMPTION AGREEMENT
CONSENT, SUBORDINATION AND ASSUMPTION AGREEMENT
THIS CONSENT, SUBORDINATION AND ASSUMPTION AGREEMENT (this Agreement ) is made as of the day of February, 2009 by and among NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY, a corporate governmental agency constituting a body corporate and politic and a public benefit corporation of the State of New York, duly organized and existing under the laws of the State of New York, having its principal office at 110 William Street, New York, New York 10038 ( IDA ), NYT BUILDING LEASING COMPANY LLC, a New York limited liability company ( NYT Building ), having an office c/o The New York Times Company, 620 Eighth Avenue, New York, New York 10018, and THE NEW YORK TIMES COMPANY, a New York corporation, having an office at 620 Eighth Avenue, New York, New York 10018 ( NYT Company ).
RECITALS:
WHEREAS ,
A. 42ND ST. DEVELOPMENT PROJECT, INC. ( 42DP ), a subsidiary of New York State Urban Development Corporation d/b/a Empire State Development Corporation, a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, as landlord (in such capacity, Master Landlord ), and The New York Times Building LLC ( NYTB ) entered into that certain Agreement of Lease dated as of December 12, 2001, as amended by letter dated April 8, 2004 (the Initial Ground Lease ), with respect to certain land and improvements more particularly described in the Initial Ground Lease, a memorandum of which was recorded October 24, 2003 in the Office of the City Register of the City of New York (the Office of the City Register ) as CRFN 2003000433122;
B. NYTB submitted the Initial Ground Lease to a leasehold condominium structure pursuant to Article 9-B of the Real Property Law of the State of New York;
C. Pursuant to that certain Assignment and Assumption Agreement dated as of August 15, 2006 (being the Lease Assignment Date under the Initial Ground Lease) between NYTB and 42DP (the Assignment ), NYTB assigned to 42DP all of NYTBs right, title and interest in and to the Initial Ground Lease (42DP, in such capacity, Master Tenant ) (among other documents and interests), and pursuant to the provisions of the Initial Ground Lease and the Assignment, the Assignment did not cause a merger of the interests of Master Landlord and Master Tenant under the Initial Ground Lease, which interests are and remain separate and distinct;
D. The Initial Ground Lease was amended and restated pursuant to Amended and Restated Agreement of Lease dated as of August 15, 2006 and recorded in the Office of the City Register on November 20, 2006 as CRFN 2006000644736 (the Initial Ground Lease, as so amended and restated, and as may have been further amended and may hereafter be amended, assigned or otherwise modified, the Ground Lease );
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E. NYTB, as landlord, entered into (among other agreements) that certain Agreement of Sublease (NYT) dated as of December 12, 2001 with NYT Real Estate Company LLC, a New York limited liability company ( NYT Real Estate ), as tenant (as may have been amended, including by the Third Amendment to the NYTC Sublease (as hereinafter defined), and as may hereafter be amended, assigned or otherwise modified, the NYTC Sublease ), a memorandum of which was recorded October 24, 2003 as CRFN 2003000433125 in the Office of the City Register, which NYTC Sublease leased the real estate and interests described therein (collectively, the NYTC Sublease Premises ) to NYT Real Estate;
F. Pursuant to the Assignment, NYTB assigned to 42DP all of NYTBs right, title and interest in and to the NYTC Sublease (42DP, in such capacity, Master Sublandlord ) (among other documents and interests);
G. Master Sublandlord and NYT Real Estate have on the date hereof amended the NYTC Sublease pursuant to that certain Third Amendment to Agreement of Sublease (NYT) (the Third Amendment to the NYTC Sublease ), which Third Amendment to the NYTC Sublease (i) is intended to be duly recorded in the Office of the City Register prior hereto and (ii) inter alia , removed from the NYTC Sublease Premises a portion of the NYTC Collective Unit consisting of Units 21-A, 22-A, 23-A, 24-A, 25-A, 26-A and 27-A, together with their undivided percentage interest in the Common Elements, as more particularly described in Exhibit A annexed to such Third Amendment to the NYTC Sublease (such removed portion, collectively, the New NYTC Sublease Premises , and such remaining portion of the NYTC Sublease Premises covered by the NYTC Sublease, the Remainder NYTC Sublease Premises );
H. NYT Real Estate has on the date hereof (but effective after the Third Amendment to the NYTC Sublease) assigned its interest as tenant under the NYTC Sublease to 620 Eighth NYT (NY) Limited Partnership, a Delaware limited partnership ( WPCarey ) pursuant to that certain Assignment and Assumption of Sublease (the WPCarey Assignment );
I. Master Sublandlord, as landlord, has on the date hereof entered into that certain Agreement of Sublease (NYT-2) with NYT Real Estate, as tenant (as assigned by the Assignment of the New NYTC Sublease (as hereinafter defined), and as may hereafter be amended, assigned or otherwise modified, the New NYTC Sublease ), a memorandum of which is intended to be duly recorded in the Office of the City Register prior hereto, whereby Master Sublandlord leased the New NYTC Sublease Premises to NYT Real Estate;
J. NYT Real Estate has on the date hereof assigned its interest as tenant under the New NYTC Sublease to NYT Building pursuant to that certain Assignment and Assumption of Sublease, which is intended to be duly recorded in the Office of the City Register prior hereto (the Assignment of the New NYTC Sublease );
K. WPCarey, as landlord, has on the date hereof entered into that certain Lease Agreement with NYT Real Estate, as tenant (the WPCarey Leaseback ), a memorandum of which is intended to be duly recorded in the Office of the City Register prior hereto, whereby WPCarey leased back to NYT Real Estate the Remainder NYTC Sublease Premises;
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L. NYT Real Estate, as landlord, entered into that certain Company Lease Agreement dated as of December 1, 2001 with IDA, as tenant (as may have been amended and as may hereafter be amended, assigned or otherwise modified, the Company Lease ), whereby NYT Real Estate leased the NYTC Sublease Premises to IDA;
M. IDA, as landlord, entered into that certain Lease Agreement dated as of December 1, 2001 with NYT Company, as tenant (as may have been amended and as may hereafter be amended, assigned or otherwise modified, the IDA Space Sublease );
N. None of the rights, interests and obligations of NYT Real Estate as landlord under the Company Lease, the IDA Subleases and/or the Project Agreement (as defined in the IDA Subleases) are being assigned to or assumed by WPCarey in connection with the WPCarey Assignment or otherwise;
O. NYT Real Estate and NYT Building now wish to, by entering into this Agreement, acknowledge and agree that (i) the New NYTC Sublease Premises remains part of the premises demised and leased to IDA pursuant to the Company Lease, (ii) NYT Building is the new successor landlord under the Company Lease with respect to the New NYTC Sublease Premises, and will agree to abide by the terms thereof, and (iii) NYT Real Estate remains the landlord under the Company Lease with respect to the Remainder NYTC Sublease Premises; and
P. NYT Real Estate, NYT Building and WP Carey have requested that IDA (i) consent to the execution of the Third Amendment to the NYTC Sublease, the New NYTC Sublease, the Assignment of the New NYTC Sublease, the WPCarey Assignment and the WPCarey Leaseback (collectively, the Superior Lease Modification Documents ) by the parties thereto and (ii) subordinate its interest in the Company Lease to the WPCarey Leaseback, and IDA has agreed to so consent and subordinate pursuant to the terms and provisions of this Agreement.
NOW, THEREFORE , in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions . All capitalized terms used herein without definition shall have the meanings ascribed to them in the NYTC Sublease as in effect on the date hereof.
2. Consent of IDA .
IDA hereby consents to the execution of the Superior Lease Modification Documents by the parties thereto.
3. Assumption by NYT Building .
Effective as of the date hereof, NYT Real Estate hereby assigns to NYT Building all right, title and interest of NYT Real Estate as landlord under the Company Lease (with respect only to the New NYTC Sublease Premises), and NYT Building hereby assumes all rights, privileges and obligations of NYT Real Estate under the Company Lease (with respect only to
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the New NYTC Sublease Premises), with the same effect as if NYT Building had been an original signatory to the Company Lease as a co-landlord with NYT Real Estate as to their respective premises. In consideration of such assignment to and assumption by NYT Building, IDA hereby releases NYT Real Estate from all obligations and liabilities under the Company Lease (with respect only to the New NYTC Sublease Premises but retaining all obligations and liabilities under the Company Lease with respect to the Remainder NYTC Sublease Premises) from and after the date hereof.
4. Subordination . IDA, NYT Real Estate and NYT Company hereby agree that the Company Lease and the IDA Space Sublease (in each case, with respect to the Remainder NYTC Sublease Premises only) are and shall be subject and subordinate in lien (but not subject and subordinate in respect of contractual rights and remedies) to the WPCarey Leaseback. In the event the WP Carey Leaseback shall expire or terminate for any reason whatsoever (other than in connection with the reacquisition by NYT Real Estate of the lessees interest under the NYTC Sublease), the Company Lease and the IDA Space Sublease (in each case, with respect to the Remainder NYTC Sublease Premises only) shall automatically terminate, subject, however, to the survival of those obligations of NYT Company stated in the IDA Space Lease to survive termination; provided, further, that no such termination shall result in a release of NYT Real Estate or NYT Company of any amounts which are due and payable to IDA or the performance of any accrued obligation owing by NYT Real Estate or NYT Company.
5. Ratification and Estoppel .
(a) NYT Real Estate and IDA hereby ratify and confirm their respective rights, privileges and obligations under the Company Lease with respect to the Remainder NYTC Sublease Premises. To each such partys knowledge, the Company Lease remains in full force and effect.
(b) NYT Building and IDA hereby ratify and confirm their respective rights, privileges and obligations under the Company Lease with respect to the New NYTC Sublease Premises. To each such partys knowledge, the Company Lease remains in full force and effect.
(c) IDA and NYT Company hereby ratify and confirm their respective rights, privileges and obligations under the IDA Space Sublease. To each such partys knowledge, the IDA Space Sublease remains in full force and effect.
6. Recording . The parties hereto agree that NYT Company shall cause this Agreement to be recorded and that NYT Company shall pay any transfer or similar taxes that may be payable as a result of this Agreement.
7. No Recourse against IDA; Special Obligation .
(a) The obligations and agreements of the IDA contained herein shall be deemed the special obligations and agreements of the IDA, and not of any member, director, officer, agent or employee of the IDA, and no member, director, officer, agent or employee of the IDA shall be liable personally hereon or be subject to any personal liability by reason of any transaction contemplated hereby.
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(b) The obligations and agreements of the IDA contained herein shall not constitute or give rise to an obligation of the State of New York or The City of New York or any political subdivision of the State of New York and neither the State of New York nor The City of New York or any political subdivision of the State of New York shall be liable hereon, and, further, such obligations and agreements shall not constitute or give rise to a general obligation of the IDA, but rather shall constitute limited obligations of the IDA payable solely from the amounts payable by NYT Company under the IDA Space Sublease.
8. Miscellaneous .
(a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
(b) Each party hereto warrants and represents to the other parties hereto that the execution and delivery of this Agreement has been duly authorized by all necessary action on the part of the representing party and that the person who signs this Agreement on behalf of such party is duly authorized to do so.
(c) All of the terms, covenants and conditions hereof shall run with the land and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and/or assigns.
(d) This Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof and cannot be changed, modified, waived or cancelled except by an agreement in writing executed by the party against whom enforcement of such modification, change, waiver or cancellation is sought. This Agreement may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument.
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IN WITNESS WHEREOF , the parties hereto have executed this Agreement as of the day and year first written above.
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NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY, a New York public benefit corporation |
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NYT BUILDING LEASING COMPANY LLC, |
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a New York limited liability company |
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THE NEW YORK TIMES COMPANY, |
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a New York corporation |
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ACKNOWLEDGMENTS
STATE OF NEW YORK |
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On the day of 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 of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in h capacity, and that by h signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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STATE OF NEW YORK |
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On the day of 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 of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in h capacity, and that by h signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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STATE OF NEW YORK |
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On the day of 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 of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in h capacity, and that by h signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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CONSENT, SUBORDINATION AND ASSUMPTION AGREEMENT
By and Among
NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY
and
NYT BUILDING LEASING COMPANY LLC
and
THE NEW YORK TIMES COMPANY
Premises :
Block: 1012
Lots: 1001, 1003, and 1009 through 1035 (formerly part of Lot 1)
Address
620-628 8 th Avenue
263-267 and 241-261 West 40 th Street
242-244 West 41 st Street
231-235 West 40 th Street
248-256, 260-262 and 268 West 41 st Street
634 and 630-632 8 th Avenue
Borough of Manhattan
County, City and State of New York
RECORD AND RETURN TO :
DLA Piper LLP (US)
1251 Avenue of the Americas
New York, New York
10020
Attention: Marc Hurel, Esq.
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EXHIBIT L
RECORDED AT THE
REQUEST OF
AND WHEN RECORDED MAIL TO:
Joseph M. Marger, Esq.
Reed Smith LLP
599 Lexington Avenue, 29 th Floor
New York, NY 10022
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE, made as of the day of March, 2009, between 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership ( Landlord ), having an address at c/o W. P. Carey & Co. LLC, 50 Rockefeller Plaza, 2 nd Floor, New York, New York 10020, and NYT REAL ESTATE COMPANY LLC, a New York limited liability company ( Tenant ), having an address at 620 Eighth Avenue, New York, New York 10018.
1. Lease . Landlord has demised and let to Tenant pursuant to the terms and conditions of a Lease Agreement dated as of the date hereof (the Lease ), the terms and conditions of which are incorporated herein as though set forth in full, all of Landlords 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 Landlords 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 Landlords undivided interest in the Condominium common elements appurtenant to the Condominium Units (the Common Elements ). 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 . Such Landlords right, title and interest in the Land, the Building, the Condominium Units and the Common Elements granted to the Landlord pursuant to the Severance Lease and then subsequently leased by the Landlord to the Tenant pursuant to the Lease shall be defined as the Leased Premises .
2. Original Term . Under the terms of the Lease, Tenant may have and hold the Leased Premises, at the rental and upon the terms and conditions therein stated, for an original term (the Term ) commencing as of the date hereof and ending at 11:59 p.m. (EST) on March 31, 2024 (the Expiration Date ).
3. Renewal Term(s) . Under the terms of the Lease, the Tenant shall have the option to extend the Term of the Lease on the Expiration Date and on the tenth (10 th ) and fifteenth (15 th ) anniversaries of the Expiration Date (the Expiration Date and each such anniversary being a referred to herein as a Renewal Date ), for an additional period of ten (10) years, with respect to the first renewal option, and five (5) years each with respect to the second and third renewal options (each such extension, a Renewal Term ). Each applicable Renewal Term shall be exercisable by Tenant only by delivering written notice to Landlord in the form required by the Lease at least twelve (12) months prior to the next Renewal Date that Tenant is electing to extend the Term of this Lease (in whole or in part and, if in part, identifying all floors to be renewed) as of the next Renewal Date for the applicable Renewal Term; time being of the
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essence with respect to the giving of such written notice . Any such extension of the Term shall be subject to all of the provisions of this Lease, as the same may be amended, supplemented or modified (except that Tenant shall not have the right to any additional Renewal Terms other than as aforesaid). Tenant also shall have the option to extend the Term of the Lease with respect to only a portion of the Leased Premises, subject to the terms and conditions more particularly set forth in the Lease.
4. Right of First Offer to Purchase . If Landlord decides to offer the Leased Premises for sale to any third party, Landlord shall offer Tenant such right first, subject to the terms and conditions more particularly set forth in the Lease.
5. Option to Purchase . Tenant has the right to purchase the Leased Premises from the Landlord, subject to the terms and conditions more particularly set forth in the Lease.
6. No Responsibility for Liens . NOTICE IS HEREBY GIVEN THAT LANDLORD SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO TENANT, OR TO ANYONE HOLDING ANY OF THE LEASED PREMISES THROUGH OR UNDER TENANT, AND THAT NO MECHANICS OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF LANDLORD IN AND TO ANY OF THE LEASED PREMISES.
7. Purpose and Intention . This Memorandum of Lease is executed for the purpose of recordation in the Office of the City Register of New York County, New York, in order to give notice of all of the terms, provisions and conditions of the Lease and is not intended, and shall not be construed, to define, limit or modify the Lease. The leasehold estate created and conveyed hereby with respect to the Leased Premises is intended to be one and the same estate as was created with respect to the Leased Premises by the Lease and further is intended to be governed in all respects solely by the Lease and all of the provisions thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of Lease as of the day and year first above written.
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LANDLORD: |
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620 EIGHTH NYT (NY) LIMITED PARTNERSHIP , |
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a Delaware limited partnership |
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By: 620 EIGHTH GP NYT (NY) LLC, a |
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Delaware limited liability company, its general partner |
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By: CPA:17 LIMITED PARTNERSHIP, a |
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Delaware limited partnership, its sole member |
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By: CORPORATE PROPERTY ASSOCIATES |
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17 GLOBAL INCORPORATED, a Maryland |
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corporation, its general partner |
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By: |
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Jason E. Fox |
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Executive Director |
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TENANT: |
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NYT REAL ESTATE COMPANY LLC , |
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a New York limited liability company |
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Kenneth A. Richieri |
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Manager |
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STATE OF NEW YORK |
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On the day of March, in the year 2009, before me, the undersigned, personally appeared Jason E. Fox, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me he/she/they executed the same in his/her/their/ capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
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Notary Public |
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My Commission Expires: |
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STATE OF NEW YORK |
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On the day of March, in the year 2009, before me, the undersigned, personally appeared Kenneth A. Richieri, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me he/she/they executed the same in his/her/their/ capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
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Notary Page to Memorandum of Lease
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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 NYTBs 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 ).
Memorandum of Lease
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EXHIBIT A-2
LEGAL DESCRIPTION
The Condominium Units (hereinafter called the Units ) in the building (hereinafter called the Building ) known as The New York Times Building Condominium and by the street address 620 Eighth Avenue, Borough of Manhattan, City, County and State of New York, said Units being designated and described as set forth on Schedule 1 herein and in that certain declaration, dated as of August 4, 2006, made by The New York Times Building LLC under the Condominium Act of the State of New York (Article 9-B of the Real Property Law of the State of New York) establishing condominium ownership of the Building and the land (hereinafter called the Land ) upon which the Building is situate (which Land is more particularly described below and by this reference made a part hereof), which declaration was recorded in the New York County Office of the Register of The City of New York (the City Registers Office ) on August 15, 2006, as CRFN 2006000460293, as amended by CRFN 2006000460293 and CRFN 2008000008734 (which Declaration, and any amendments thereto, are hereinafter collectively called the Declaration ). The Units are also designated as Tax Lot Nos. as set forth on Schedule 1 herein, in Block 1012 of Section 4 of the Borough of Manhattan on the Tax Map of the Real Property Assessment Bureau of The City of New York and on the floor plans of the Building certified by Daniel Kaplan, approved by the Real Property Assessment Bureau of The City of New York on August 13, 2006 and filed as Condominium Plan No. 1595 on August 15, 2006 in the City Registers Office as Map No. CRFN 2006000460294 and on Map No. CRFN 2007000124167 on March 7, 2007, TOGETHER with an undivided percentage interest as set forth in Schedule 1 herein in the Common Elements (as such term is defined in the Declaration) of The New York Times Building Condominium;
The Land upon which the Building containing the Units is erected is more particularly described 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.
Memorandum of Lease
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Schedule 1
SCHEDULE OF UNITS
UNIT DESIGNATION |
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TAX LOT |
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PERCENTAGE INTEREST
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0-A |
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1001 |
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0.6627 |
% |
1- A |
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1003 |
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2.0132 |
% |
1-E |
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1007 |
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0.0691 |
% |
2-A |
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1009 |
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4.7805 |
% |
3-A |
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1010 |
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4.7579 |
% |
4-A |
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1011 |
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4.5636 |
% |
5-A |
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1012 |
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1.6352 |
% |
6-A |
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1013 |
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1.7325 |
% |
7-A |
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1014 |
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1.7325 |
% |
8-A |
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1015 |
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1.7325 |
% |
9-A |
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1016 |
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1.7325 |
% |
10-A |
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1017 |
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1.7325 |
% |
11-A |
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1018 |
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1.7325 |
% |
12-A |
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1019 |
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1.7325 |
% |
13-A |
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1020 |
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1.7325 |
% |
14-A |
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1021 |
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1.7440 |
% |
15-A |
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1022 |
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1.3998 |
% |
16-A |
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1023 |
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1.7484 |
% |
17-A |
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1024 |
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1.7207 |
% |
18-A |
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1025 |
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1.7711 |
% |
19-A |
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1026 |
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1.7711 |
% |
20-A |
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1027 |
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1.7711 |
% |
28-A |
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1035 |
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0.4446 |
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Memorandum of Lease
7
EXHIBIT M
NYT SUBLEASE AGREEMENT
OPERATING LEASE
This OPERATING LEASE (the Lease), made as of March , 2009, by and between NYT REAL ESTATE COMPANY LLC, a New York limited liability company, having an address at 620 Eighth Avenue, New York, New York 10018 ( Landlord ), and THE NEW YORK TIMES COMPANY, a New York corporation, having an office at Eighth Avenue, New York, New York 10018 ( Tenant ).
W I T N E S S E T H :
WHEREAS, pursuant to that certain Lease Agreement, dated as of even date herewith, (the Overlease ) a copy of which is attached hereto as Exhibit A , 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP ( Overlandlord ) has leased to Landlord: (a) the leasehold condominium unit consisting of (i) Floors 2 through 20 containing approximately 712,000 rentable square feet, (ii) NYTC Unit Owners (as defined in the Declaration) portions of the cellar and Floors 28 and 51, containing approximately 53,000 square feet, and (iii) the NYTC Unit Owners fractional undivided interest in approximately 100,000 square feet of common elements or limited common elements of the Condominium (as defined in the Overlease) appurtenant thereto (collectively, the Unit ), all located in the building known as The New York Times Building and having a street address of 620 Eighth Avenue, New York, New York 10018 (the Building ), (b) all other appurtenances and any structures and other improvements now or hereafter constructed within the Unit or which are located on or about the Building and which serve only the Unit or which otherwise constitute a part thereof under the terms of the Condominium Documents (as defined in the Overlease) (collectively, the Improvements ), and (c) the fixtures, machinery, equipment and other property located within the Unit or on or about the Building and which serve only the Unit or which otherwise constitute a part thereof under the terms of the Condominium Documents, but specifically excluding Tenants Personal Property, as such term is defined in the Overlease (collectively, the Equipment , and together with the Building and the Improvements, the Premises ), which Prime Premises is more particularly depicted on Exhibit B attached hereto and made a part hereof; and
WHEREAS, Tenant desires to lease from Landlord, and Landlord is willing to lease to Tenant, the entire Premises (the Leased Premises ) effective upon the Commencement Date (as hereinafter defined), on the terms and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:
1. Lease of the Premises . For the rent and upon the terms and conditions set forth herein, Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord,
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the Leased Premises, upon and subject to all of the terms, covenants and conditions hereinafter set forth.
2. Term . The term (the Term ) of this Lease shall commence, and Landlord shall deliver possession of the Leased Premises to Tenant, on the date hereof (the Commencement Date ) and shall expire automatically upon the earlier of (i) March 30, 2024 or (ii) the expiration or earlier termination of the Overlease, as the same may be extended pursuant thereto (the date of such expiration or earlier termination, Expiration Date ), unless sooner canceled or terminated pursuant to any of the conditions or covenants of this Lease or pursuant to law.
3. Condition of the Premises . Tenant shall accept the Leased Premises in its as-is condition as of the Commencement Date. Tenant expressly acknowledges and agrees that Landlord has made no representations with respect to the Leased Premises and is not obligated to make repairs or to perform any work at the Leased Premises.
4. Fixed Rent .
(a) Tenant shall pay to Landlord as rent hereunder the Rent, as such term is defined in the Overlease, on the same terms and amounts as set forth in Paragraph 6 of the Overlease (the Rent ).
(b) If the Term of this Lease shall expire on a day other than the last day of a calendar month, the Rent for such calendar month shall be pro-rated as provided in the Overlease.
5. Additional Rent .
(a) In addition to Rent provided for above, Tenant agrees to pay any and all third party expenses that Landlord has agreed to pay in the Overlease ( Additional Rent ).
(b) In addition to the Rent and Additional Rent provided for above, Tenant agrees to pay all Tenant PILOT payments, Condominium Expenses, Escrow Charges and any other Impositions (all as defined in the Overlease) (collectively, Impositions) that Landlord has agreed to pay in the Overlease.
(c) All amounts payable by Tenant to Landlord pursuant to this Lease, including, without limitation, Rent, Additional Rent and any Impositions, shall be deemed to be and shall constitute rent for all purposes hereunder and, in the event of any
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non-payment thereof, Landlord shall have all of the rights and remedies provided herein, at law or in equity for non-payment of rent.
6. Use of Leased Premises . The Leased Premises shall be used and occupied only for those uses permitted pursuant to Paragraph 4 of the Overlease. Tenant shall not use the Leased Premises for any other use or purpose whatsoever.
7. Improvements and Alterations .
(a) Tenant shall not make, or cause to be made, any repairs, replacements, alterations, improvements or additions in or to the Leased Premises except as provided in Paragraph 13 of the Overlease. Such consent, such repairs, replacements, alterations, improvements or additions shall be performed in a good workmanlike manner, and must be made in accordance with all applicable provisions of the Overlease and all applicable legal and insurance requirements, including but not limited to, Tenant obtaining all required governmental approvals, permits and licenses required to perform such work, and Tenant paying to Overlandlord all costs due and owing to Overlandlord pursuant to Paragraphs 12 and 13 of the Overlease. Tenant shall not make any repairs, alterations, additions or improvements or perform any work to or on the Leased Premises unless, prior to the commencement of such work, Tenant shall obtain or cause to be obtained (and during the performance of such work keep in force or cause to be kept in force) all insurance required by the Prime Lease during the time of such work, the amount and terms of which shall be in accordance with the Overlease. The terms of the Overlease shall govern the extent to which repairs, replacements, alterations, additions and improvements made by Tenant to the Leased Premises (or any portion thereof), whether temporary or permanent in character, become Overlandlords property and are to remain upon the Leased Premises at the termination of this Lease.
(b) Tenant hereby covenants to maintain the Leased Premises in accordance with the terms of Paragraph 12 of the Overlease.
(c) Notwithstanding any provision to the contrary contained in this Lease or the Overlease, Tenant hereby specifically acknowledges and agrees that it will make, at its sole cost and expense, all alterations, additions, repairs and improvements to the Leased Premises as are necessary to comply with applicable law to the extent Landlord is so obligated under the Overlease.
8. Surrender and Restoration of the Leased Premises . The terms of the Overlease shall govern the obligations of Tenant with respect to the required condition of the Leased Premises upon the Expiration Date.
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9. Subordination to the Overlease; Non-attornment .
(a) This Lease and all of Tenants rights hereunder are and shall remain in all respects (i) subject and subordinate to all of the terms, provisions, covenants, stipulations, conditions and agreements of the Overlease, (ii) any and all amendments to the Overlease or supplemental agreements relating thereto hereafter made between Overlandlord and Landlord and (ii) any and all matters to which the tenancy of Landlord, as tenant under the Overlease, is or may be subordinate. In furtherance of the foregoing, Tenant shall not take any action or do or permit to be done anything which (i) is or may be prohibited by Landlord, as tenant under the Overlease, (ii) might result in a violation of or default under any of the terms, covenants, conditions or provisions of the Overlease or any other instrument to which this Lease is subordinate, or (iii) would result in any additional cost or other liability to Landlord. This clause shall be self-operative and no further instrument of subordination shall be required, but Tenant shall execute promptly any certificate confirming such subordination that Landlord or Overlandlord may request. In the event of any inconsistency between this Lease and the Overlease, such inconsistency shall be resolved in favor of that obligation which is more onerous to Tenant or that restriction which is more restrictive of Tenant, as the case may be. In the event the Overlease is cancelled or terminated, this Lease shall automatically terminate and Tenant shall have no obligation to and shall not attorn to or recognize Prime Landlord as the landlord hereunder.
10. Tenants Obligations . Except as specifically set forth herein to the contrary, all acts to be performed by, and all of the terms, provisions, covenants, stipulations, conditions, obligations and agreements to be observed by Landlord, as tenant under the Overlease, shall, to the extent that the same relate to the Leased Premises, be performed and observed by Tenant.
11. Landlords Obligations . Landlord shall provide such services as reasonably requested by Tenant, and Tenant shall reimburse Landlord for the cost of such services.
12. Covenants with respect to the Overlease . In the event that Tenant shall be in default of any term, provision, covenant, stipulation, condition, obligation or agreement of, or shall fail to honor any obligation under, this Lease, Landlord, on giving the notice required by the Overlease and subject to the right, if any, of Tenant to cure any such default within any applicable grace period provided in the Overlease, shall have available to it all of the remedies Landlord at law or in equity. In no event shall Tenant be entitled to an abatement of Rent hereunder unless Landlord receives a corresponding abatement under the Overlease.
13. Broker . Landlord and Tenant each represent and warrant to each other that neither it nor its officers or agents nor anyone acting on its behalf has dealt with any real estate broker in connection with the consummation of this Lease.
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14. Termination of the Overlease . If the term of the Overlease is terminated by Overlandlord prior to the expiration date set forth therein, then this Lease shall immediately terminate and Landlord shall not be liable to Tenant by reason thereof.
15. Approvals or Consents . In all provisions of the Overlease requiring the approval or consent of Overlandlord, Tenant shall be required to obtain the express written approval or consent of Landlord, which consent shall be subject to the approval or consent of Overlandlord, pursuant to the Overlease. If Landlord shall give its consent to any request made by Tenant then Landlord hereby agrees to promptly furnish to Overlandlord copies of such request for consent or approval received from Tenant. If Overlandlord shall refuse to give its consent or approval to any request made by Tenant then Landlords refusal to give its consent or approval to such request shall be deemed to be reasonable.
16. Assignment and Subletting . Notwithstanding anything to the contrary contained herein, Tenant, for itself, its successors and assigns, expressly covenants that it shall not assign (whether by operation of law or otherwise), pledge or otherwise encumber this Lease, or sublet all or any portion of the Leased Premises except an assignment in conjunction with an assignment of the Overlease or as otherwise consented to by Landlord. Landlord reserves the right to transfer and assign its interest in and to this Lease to any entity or person as permitted in the Overlease.
17. End of Term . Tenant acknowledges that possession of the Leased Premises must be surrendered to Landlord on the Expiration Date or earlier termination of this Lease, in the same condition as set forth in Paragraph 8 hereof. Tenant agrees to indemnify Landlord against and hold Landlord harmless from, any and all liabilities, losses, obligations, damages, penalties, claims, costs and expenses (including, without limitation, attorneys fees and other charges) which are paid, suffered or incurred by Landlord as a result of the failure of, or the delay by, Tenant in so surrendering the Leased Premises, including, without limitation, any claims made by Overlandlord or any succeeding tenant founded on such failure or delay. The provisions of this Paragraph 19 shall survive the Expiration Date or earlier termination of the Overlease.
18. Insurance, Destruction, Fire and other Casualty; Condemnation .
(a) Tenant will provide on or before the Commencement Date and to keep in force during the Term for the benefit of Landlord and Overlandlord the same insurance required by the provisions of Paragraph 16 of the Overlease.
(b) In the event of fire, other casualty, or condemnation, he provisions of the Overlease shall govern.
19. Notices . Any notice, request or demands ( Notice ) permitted or required to be given by the terms and provisions of this Lease, or by any law or governmental
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regulation, either by Landlord or Tenant, shall be in writing and deemed to have been given and received when delivered in person or by Federal Express or other reliable nationally recognized 24-hour delivery service by the United States mail, by registered or certified mail, return receipt requested, postage prepaid, addressed to the other party as follows:
(a) To Landlord:
c/o The New York Times Company
620 Eighth Avenue
New York, New York 10018
Attention: General Counsel and CEO (in separate envelopes)
with a copy to
DLA Piper LLP (US)
1251 Avenue of the Americas
New York, New York 10020
Attention: Martin D. Polevoy, Esq.
(b) To Tenant:
The New York Times Company
620 Eighth Avenue
New York, New York 10018
Attention: General Counsel and CEO (in separate envelopes)
with a copy to:
DLA Piper LLP (US)
1251 Avenue of the Americas
New York, New York 10020
Attention: Martin D. Polevoy, Esq.
or to such other address as designed by notice from Overlandlord, Landlord or Tenant to Overlandlord, Landlord and/or Tenant as applicable.
20. Miscellaneous .
(a) The provisions of this Lease shall be governed and interpreted in accordance with the laws of the State of New York without regard to the conflicts of law principles thereof.
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(b) The paragraph headings in this Lease are inserted only as a matter of convenience for reference and are not to be given any effect in construing this Lease.
(c) If any of the provisions of this Lease or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such provision or provisions to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby, and every provision of this Lease shall be valid and enforceable to the fullest extent permitted by law.
(d) All of the terms and provisions of this Lease shall be binding upon and inure to the benefit of the parties hereto and, subject to the provisions of Paragraph 19 hereof, their respective successors and assigns.
(e) Landlord has made no representations, warranties or covenants to or with Tenant with respect to the subject matter of this Lease except as expressly provided herein and all prior negotiations and agreements, written or oral, relating thereto are merged into this Lease. This Lease may be not be amended or terminated, in whole or in part, nor may any of the provisions be waived, except by a written instrument executed by the party against whom enforcement of such amendment, termination or waiver is sought.
(f) Landlord and Tenant each shall and hereby does waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matter whatsoever arising out of or in any way connection with this Lease, the relationship of Landlord and Tenant and/or Tenants use or occupancy of the Leased Premises.
(g) Landlord and Tenant agree that neither this Lease nor any memorandum thereof shall be recorded.
(h) This Lease does not create, and shall not be construed as intending to create, any relationship, in privity or otherwise, between Overlandlord and Tenant and Overlandlord is not intended to be a third party beneficiary of this Lease.
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IN WITNESS WHEREOF, this Lease has been duly executed as of the day and year first above written.
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TENANT: |
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NEW
YORK TIMES COMPANY, a New
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LANDLORD: |
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NYT REAL ESTATE COMPANY, LLC, a New York limited liability company |
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8
Exhibit B
PRIME PREMISES
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 Surveyors 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 Registers 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,
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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.
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SCHEDULE OF UNITS
UNIT DESIGNATION |
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TAX LOT |
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PERCENTAGE INTEREST
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0-A |
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1001 |
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0.6627 |
% |
1- A |
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1003 |
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2.0132 |
% |
1-E |
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1007 |
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0.0691 |
% |
2-A |
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1009 |
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4.7805 |
% |
3-A |
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1010 |
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4.7579 |
% |
4-A |
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1011 |
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4.5636 |
% |
5-A |
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1012 |
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1.6352 |
% |
6-A |
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1013 |
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1.7325 |
% |
7-A |
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1014 |
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1.7325 |
% |
8-A |
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1015 |
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1.7325 |
% |
9-A |
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1016 |
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1.7325 |
% |
10-A |
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1017 |
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1.7325 |
% |
11-A |
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1018 |
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1.7325 |
% |
12-A |
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1019 |
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1.7325 |
% |
13-A |
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1020 |
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1.7325 |
% |
14-A |
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1021 |
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1.7440 |
% |
15-A |
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1022 |
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1.3998 |
% |
16-A |
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1023 |
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1.7484 |
% |
17-A |
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1024 |
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1.7207 |
% |
18-A |
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1025 |
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1.7711 |
% |
19-A |
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1026 |
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1.7711 |
% |
20-A |
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1027 |
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1.7711 |
% |
28-A |
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1035 |
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0.4446 |
% |
11
EXHIBIT N
WRAP MORTGAGE
WRAP-AROUND MORTGAGE, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
Dated: March , 2009
among
NYT REAL ESTATE COMPANY LLC,
a New York limited liability company
with an address at:
c/o The New York Times Company
620 Eighth Avenue
New York, New York 10018
(the Borrower )
AND
NEW YORK STATE URBAN DEVELOPMENT CORPORATION, D/B/A/ EMPIRE STATE DEVELOPMENT CORPORATION,
a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation
with an address at:
633 Third Avenue
New York, New York 10017
( ESDC ), as co- mortgagee,
AND
620 EIGHTH NYT (NY) LIMITED PARTNERSHIP,
a Delaware limited partnership
with an address at:
c/o W.P. Carey & Co. LLC
50 Rockefeller Plaza
New York, New York 10020
Attn.: Director, Asset Management
(the Lender ) , as co- mortgagee,
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The land affected by the within instrument lies in:
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Block: |
1012 |
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Lots: |
1001, 1003, 1009 through 1027, and 1035 (formerly part of Lot 1) |
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Addresses: |
620-628 8th Avenue, |
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263-267 and 241-261 West 40th Street, |
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242-244 West 41st Street, |
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231-235 West 40th Street, |
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248-256, 260-262 and 268 West 41st Street |
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634 and 630-632 8th Avenue, |
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New York, New York |
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County: |
New York |
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RECORD AND RETURN TO:
Reed Smith LLP
599 Lexington Avenue, 29 th Floor
New York, New York 10022
Attn: Joseph M. Marger, Esq.
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WRAP-AROUND MORTGAGE, ASSIGNMENT
OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS WRAP-AROUND MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING (herein Instrument ) is made this day of March, 2009 (the Effective Date ), among NYT REAL ESTATE COMPANY LLC, a New York limited liability company, whose address is c/o The New York Times Company, 620 Eighth Avenue, New York, New York 10018 (herein Borrower ), NEW YORK STATE URBAN DEVELOPMENT CORPORATION, D/B/A/ EMPIRE STATE DEVELOPMENT CORPORATION, a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, having an office at 633 Third Avenue, New York, New York 10017 ( ESDC ) as co- mortgagee, and 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership, whose address is c/o W.P. Carey & Co. LLC, 50 Rockefeller Plaza, New York, New York 10020, as co-mortgagee (herein Lender ).
This Instrument is made in connection with the loan (the Loan ) evidenced by the Lease Agreement (as defined in paragraph 1 below).
ESDC (i) is acting under this Instrument as co-mortgagee solely for the purpose of making available to Borrower an exemption from mortgage recording tax in recognition of the fact that this is necessary to make the Lease Agreement financially feasible, (ii) has no beneficial interest in or discretionary authority whatsoever as co-mortgagee hereunder or under any Loan Documents (as hereinafter defined) and pursuant to the provisions of paragraph 40.14 of this Instrument, effective immediately after the recording of this Instrument, is resigning as co-mortgagee and assigning to Lender, all of its right, title and interest in and to this Instrument and (iii) has no obligations, responsibilities or liabilities whatsoever under this Instrument and/or any other Loan Documents other than to (x) record this Instrument in the City Registers Office and (y) perform its obligations under paragraph 40.14 of this Instrument.
Capitalized terms used herein but not otherwise defined shall have the respective meanings assigned to such terms in the Lease Agreement.
Borrower, in consideration of good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, and in order to secure the obligations described in paragraph 1 below, irrevocably mortgages, warrants, grants, conveys and assigns to Lender and its successors and assigns, forever, all of Borrowers estate, right, title, interest, claim and demand in and to the property in the County of New York, State of New York, known as consisting of certain leasehold condominium units in the property known as 620-628 8th Avenue, 263-267 and 241-261 West 40th Street, 242-244 West 41st Street, 231-235 West 40th Street, 248-256, 260-262 and 268 West 41st Street, 634 and 630-632 8th Avenue, New York, New York (which address is provided for reference only and shall in no way limit the description of the real and personal property otherwise described below), described as follows, whether now existing or hereafter acquired (all of the property described in all parts below is called the Property ):
(A) Condominium Units . The leasehold condominium units and undivided interest in the Condominium common elements appurtenant thereto all as more particularly described in Exhibit A attached hereto (collectively, the Unit ), all located in the building
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known as The New York Times Building having a street address of 620 Eighth Avenue, New York, New York (the Building ). The land upon which the Building is constructed and which constitutes a part of the Condominium is herein referred to as the Land ; and
(B) Leasehold . The leasehold estate created by the Severance Lease (the Severance Lease ) described on Exhibit B attached hereto; any and all options to purchase, rights of first refusal and renewal options with respect to the Severance Lease or any real or personal property covered thereby, or any portion thereof or any interest therein; any and all greater estate in such real or personal property (including but not limited to the fee estate) as may subsequently be acquired by or released to Borrower, whether under the Severance Lease or otherwise; any and all interest, estate and other claims, both in law and equity, that Borrower now has or may hereafter acquire in and to any such real or personal property; and any and all other rights and interests of Borrower arising under or as a result of the Severance Lease; and
(C) Improvements, Appurtenances and Fixtures . All Appurtenances (hereinafter defined) and any structures and other improvements now or hereafter constructed within the Unit or which are located on or about the Building and which serve only the Unit or which otherwise constitute a part thereof under the terms of the Condominium Documents (as defined below) (collectively, the Improvements ). All the fixtures, machinery, equipment and other property described in Exhibit B hereto located within the Unit or on or about the Building and which serve only the Unit or which otherwise constitute a part thereof under the terms of the Condominium Documents, but specifically excluding Borrowers Personal Property (hereinafter defined); and
(D) Enforcement and Collection . Any and all rights of Borrower without limitation to make claim for, collect, receive and receipt for any and all rents, income, revenues, issues, earnest money, deposits, refunds (including but not limited to refunds from property taxing authorities, utilities and insurers), royalties, and profits, including mineral, oil and gas rights and profits, insurance proceeds of any kind (whether or not Lender requires such insurance and whether or not Lender is named as an additional insured or loss payee of such insurance), condemnation awards and other moneys, payable or receivable from or on account of any of the Property, including interest thereon, or to enforce all other provisions of any other agreement (including those described in (B) above) affecting or relating to any of the Property, to bring any suit in equity, action at law or other proceeding for the collection of such moneys or for the specific or other enforcement of any such agreement, award or judgment, in the name of Borrower or otherwise, and to do any and all things that Borrower is or may be or become entitled to do with respect thereto, provided, however, that no obligation of Borrower under the provisions of any such agreements, awards or judgments shall be impaired or diminished by virtue hereof, nor shall any such obligation be imposed upon Lender; and
(E) Accounts and Income . Any and all rights of Borrower in any and all accounts, rights to payment, contract rights, chattel paper, documents, instruments, licenses, contracts, agreements and general intangibles relating to any of the Property; and
(F) Leases . All of Borrowers rights as landlord in and to all existing and future leases and tenancies, whether written or oral and whether for a definite term or month to month or otherwise, now or hereafter demising all or any portion of the Property, including all renewals and extensions thereof and all rents, deposits and other amounts received or receivable thereunder, and including all guaranties, supporting obligations, letters of credit (whether tangible or electronic)
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and letter of credit rights guaranteeing or supporting any such lease or tenancy (in accepting this Instrument Lender assumes no liability for the performance of any such lease); and
(G) Books and Records . All tradenames, trademarks, servicemarks, logos, copyrights, goodwill, books and records and all other general intangibles relating to or used in connection with the operation of the Property, but specifically excluding Borrowers Personal Property; and
(H) Proceeds . All proceeds resulting or arising from the foregoing.
PROVIDED, HOWEVER, that the term Property shall exclude the following which shall not be subject to the lien of this Instrument:
(i) Any existing cause of action, or damage claim, of or against Borrower;
(ii) All rights and interests of Borrower with respect to any amounts due Borrower with respect to the Property and arising prior to the Effective Date (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 the Effective Date;
(iii) All rights and interests of Borrower with respect to and appurtenant 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) 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; and
(v) All right, title and interest of Borrower in and to that certain (i) NYTC Facility Maintenance and Management Agreement relating to the Condominium Units and the Excluded Units between Borrower 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 Borrower and First New York Partners Management, LLC dated as of April , 2008.
Borrower covenants that Borrower is lawfully seized of the estate hereby conveyed and has the right to mortgage, grant, convey and assign the Property (and that the Severance Lease is in full force and effect without modification and without default on the part of either lessor or lessee thereunder), that the Property is unencumbered, and that Borrower will warrant and defend generally the title to the Property against all claims and demands, subject to any Permitted Encumbrances (hereinafter defined).
As used herein, the following terms shall have the following meanings:
Appurtenances shall mean all tenements, hereditaments, easements, rights-of-way, rights, privileges in and to the Building or the Land, including (a) easements over other lands granted by any conditions, covenants, restrictions, easements, declarations, licenses and other
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agreements as may now or hereafter affect the Property, (b) any streets, ways, alleys, vaults, gores or strips of land adjoining the Land and (c) any and all rights to the use or enjoyment of, or access to, any other portion of the Condominium under the terms or provisions of the Condominium Documents, the Severance Lease and/or the Ground Lease (hereinafter defined).
Borrowers Personal Property shall mean all furniture, furnishings equipment and other personal property of Borrower, 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 Improvements and any other personal property owned by Borrower or a sublessee of Borrower or other occupant of the Property; provided that in no case shall Borrowers Personal Property include fixtures or built-in heating, ventilating, air-conditioning, and electrical equipment (including power panels) to be utilized in connection with the operation of the Property.
Condominium Documents shall mean collectively, (i) the Declaration (hereinafter defined), and all the terms and provisions thereof, and (ii) the Bylaws (hereinafter defined) and (iii) any rules or regulations adopted under the Declaration or the Bylaws, in each case, now or hereafter in effect and as same may be amended, restated, modified or supplemented from time to time.
Ground Lease shall mean that certain Agreement of Lease, dated as of December 12, 2001, between 42nd Street Development Project, Inc., as landlord, and The New York Times Building LLC, as tenant with respect to certain land more particularly described in Exhibit A attached hereto as the land area of the Condominium and all improvements then or thereafter located thereon, as evidenced by Memorandum of Agreement of Lease, including an Option to Purchase, between 42nd Street Development Project, Inc. and The New York Times Building LLC, dated December 12, 2001, recorded in the Office of the City Register, New York County on October 24, 2003 as CRFN 2003000433122, as amended by Letter Agreement dated April 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), as further amended by 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 August 15, 2006 and recorded in the Office of the City Register, New York County on November 20, 2006 as CRFN 2006000644732, and as further amended by 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 August 15, 2006 and recorded in the Office of the City Register, New York County on November 20, 2006 as CRFN 2006000644736 and further amended by First Amendment to Amended and Restated Agreement of Lease dated January 29, 2007 and recorded in the Office of the City Register, New York County as CRFN 2007000100154, as the same may be amended from time to time.
Permitted Encumbrances shall mean the Permitted Encumbrances as defined in the Lease Agreement together with the Underlying Note (hereinafter defined) and the Underlying Mortgage (hereinafter defined).
Borrower covenants with and represents and warrants to Lender as follows:
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1 . SECURED OBLIGATIONS. This Instrument is given for the purpose of securing the following (the Secured Obligations ):
(A) Performance and Payment. The performance of the obligations contained herein and the payment and performance of all obligations pursuant to the terms of a lease agreement of even date herewith made by Borrower in favor of Lender and any and all extensions, renewals, modifications or replacements thereof, whether the same be in greater or lesser amounts (the Lease Agreement ). Borrower shall pay and perform all obligations contained in the Lease Agreement at the time and in the manner provided in the Lease Agreement and in this Instrument. Borrower will duly and punctually perform all of the covenants, conditions and agreements contained in the Lease Agreement, this Instrument and the other Loan Documents (as defined below) all of which covenants, conditions and agreements are hereby made a part of this Instrument to the same extent and with the same force as if fully set forth herein.
(B) Future Advances. The repayment of any and all sums advanced or expenditures made by Lender subsequent to the execution of this Instrument and after an Event of Default for the maintenance or preservation of the Property or advanced or expended by Lender pursuant to any provision of this Instrument or the other Loan Documents, together with interest thereon.
(C) Other Amounts. All other obligations and amounts now or hereafter owing by Borrower to Lender under this Instrument, the Lease Agreement, that certain Assignment and Assumption of Severance Agreement of even date between Borrower and Lender or any other document, instrument or agreement evidencing, securing or otherwise relating to the Loan and any and all extensions, renewals, modifications or replacements of any thereof (collectively, the Loan Documents ); provided, however, that this Instrument does not and shall not in any event be deemed to, secure the obligations owing to Lender any guaranty of the Loan.
2 . FUNDS FOR TAXES, INSURANCE AND OTHER CHARGES. Borrower shall cause to be paid all Impositions and insurance premiums now or hereafter levied or assessed or imposed against the Property or any part thereof as provided in the Lease Agreement, and subject to Borrowers right to contest set forth in Paragraph 14 of the Lease Agreement. Following the occurrence of an Event of Default with respect to the timely payment of any Impositions or insurance premiums, as the case may be, in accordance with the terms of the Lease Agreement or the Condominium Documents, upon the written request of Landlord, Borrower shall pay into an escrow account controlled by Landlord (or Lender, as the case may be), funds necessary to pay Escrow Charges in accordance with the terms of Paragraph 9(b) of the Lease Agreement.
3 . WAIVER OF NOTICE. Borrower shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which this Instrument or the Lease Agreement specifically and expressly provides for the giving of notice by Lender to Borrower and except with respect to matters for which Lender is required by applicable law to give notice, and Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Instrument or the Lease Agreement do not specifically and expressly provide for the giving of notice by Lender to Borrower.
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4 . CHARGES; LIENS. Borrower shall pay all rents, taxes, assessments, premiums, and Impositions attributable to the Property as provided in and subject to the Lease Agreement. Borrower shall promptly discharge any lien which has, or may have, priority over or equality with, the lien of this Instrument, and Borrower shall pay, when due, the claims of all persons supplying labor or materials to or in connection with the Property, all to the extent provided in the Lease Agreement. Without Lenders prior written permission, Borrower shall not allow any lien inferior to this Instrument to be perfected against the Property.
5 . HAZARD INSURANCE. Borrower, at its sole cost and expense, shall maintain or cause to be maintained insurance with respect to the Property for the mutual benefit of Borrower and Lender (and any other person) as required by Paragraph 16 of the Lease Agreement. If the Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (an Insured Casualty ), Borrower shall, to the extent required under Paragraphs 17, 18 and 19 of the Lease Agreement, promptly repair, replace or rebuild the Property in accordance with, and all amounts paid with respect to such Insured Casualty under all insurance policies maintained by Borrower shall be governed by, the terms and conditions of Paragraphs 17, 18 and 19 of the Lease Agreement. The expenses incurred by Lender in the adjustment and collection of insurance proceeds shall become part of the Secured Obligations and shall be secured hereby and shall be reimbursed by Borrower to Lender in accordance with the terms of the Lease Agreement. Any adjustment, settlement or compromise of any claims associated with an Insured Casualty is subject to the terms of Paragraph 17 of the Lease Agreement. Notwithstanding any casualty occurring at all or any portion of the Property, subject to the terms of Paragraphs 17, 18 and 19 of the Lease Agreement, Borrower shall continue to pay the Secured Obligations at the time and in the manner provided for its payment in the Lease Agreement. The application of any claims associated with an Insured Casualty shall be governed by Paragraphs 17, 18 and 19 of the Lease Agreement.
6 . PRESERVATION AND MAINTENANCE OF PROPERTY; LEASEHOLDS. Borrower shall comply with its maintenance and repair obligations with respect to the Property under the Lease Agreement. Borrower shall not be permitted to make any alterations to the Property except as provided in the Lease Agreement.
Borrower (i) shall comply with the provisions of the Severance Lease, (ii) shall give immediate written notice to Lender of any default by lessor under the Severance Lease or of any notice received by Borrower from such lessor of any default under the Severance Lease by Borrower, and (iii) shall give immediate written notice to Lender of the commencement of any proceedings for the exercise of remedies under the Severance Lease by any party thereto and, if required by Lender, shall permit Lender as Borrowers attorney-in-fact to control and act for Borrower in any such proceedings.
Borrower hereby expressly transfers and assigns to Lender the benefit of all covenants contained in the Severance Lease, whether or not such covenants run with the land; provided, however, pursuant to and in accordance with the terms of Paragraph 4(c) of the Lease Agreement, the Borrower shall be entitled to exercise, and shall continue to be bound by, certain rights and obligations with respect to the Severance Lease.
Except to the extent provided in Paragraph 4(c) of the Lease, Borrower shall not surrender its right, title or interest in the Severance Lease and interests herein conveyed (the Severance Leasehold Estate ) nor terminate, or cancel the Severance Lease creating said estate and interests, and, except to the extent provided in Paragraph 4(c) of the Lease, Borrower shall not,
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without the express written consent of Lender, alter or amend the Severance Lease. Borrower covenants and agrees that there shall not be a merger of the Severance Lease, or of the leasehold estate created thereby, with the leasehold estate covered by the Severance Lease by reason of said leasehold estate or a merger of the Severance Lease between the lessor under the Severance Lease, or the leasehold estate created by it, with the fee estate covered by such Severance Lease by reason of said leasehold estate or fee estate, or any part of either, coming into common ownership, unless Lender shall consent in writing to such merger; if Borrower shall acquire such fee estate or leasehold estate, then this Instrument shall simultaneously and without further action be spread so as to become a lien on such fee estate and/or leasehold estate, as the case may be. In the event of such acquisition by Borrower, Borrower shall execute and deliver to Lender such further instruments, conveyances and assurances as Lender may reasonably request in order to further confirm and assure that the fee title or other interest so acquired by Borrower is subject to the terms, provisions and lien of this Instrument.
7 . USE OF PROPERTY. Unless required by applicable law or unless Lender has otherwise agreed in writing, except as otherwise provided in Paragraph 4 of the Lease Agreement, Borrower shall not allow changes in the use for which all or any part of the Property was intended at the time this Instrument was executed. Borrower shall not subdivide the Property or initiate or acquiesce in a change in the zoning classification of the Property without Lenders prior written consent.
8 . PROTECTION OF LENDERS SECURITY. Upon the occurrence and during the continuance of any Event of Default beyond applicable notice and cure periods set forth in the Lease Agreement, Lender at Lenders option may make such appearances, disburse such sums and take such action as Lender deems necessary, in its sole discretion, to protect Lenders interest, including, but not limited to, (i) disbursement of attorneys fees, (ii) entry upon the Property to make repairs, (iii) procurement of satisfactory insurance as provided in paragraph 5 hereof, (iv) exercise of any option to renew or extend the Severance Lease on behalf of Borrower and the curing of any default of Borrower in the terms and conditions of the Severance Lease, and, (v) the payment of any Impositions or insurance premiums then due and payable.
Any amounts disbursed by Lender pursuant to this paragraph 8 , with interest thereon, shall become additional indebtedness of Borrower secured by this Instrument. Unless Borrower and Lender agree to other terms of payment, such amounts shall be immediately due and payable and shall bear interest from the date of disbursement at the Default Rate stated in the Lease Agreement unless collection from Borrower of interest at such rate would be contrary to applicable law, in which event such amounts shall bear interest at the highest rate which may be collected from Borrower under applicable law. Borrower hereby covenants and agrees that Lender shall be subrogated to the lien of any mortgage or other lien discharged, in whole or in part, by the indebtedness secured hereby. Nothing contained in this paragraph 8 shall require Lender to incur any expense or take any action hereunder.
9 . INSPECTION. Lender may make or cause to be made such reasonable entries upon and inspections of the Property as are permitted under (and in accordance with) the Lease Agreement.
10 . BOOKS AND RECORDS. Borrower shall furnish to Lender its books and records as and to the extent required by Paragraph 28 of the Lease Agreement.
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11 . CONDEMNATION. In the case of any actual or threatened commencement of any condemnation or eminent domain proceeding affecting the Property or any portion thereof, Borrower shall comply with the terms and conditions set forth in Paragraph 17, 18 and 19 of the Lease Agreement. Subject to the terms of Paragraph 17 of the Lease Agreement, Lender is hereby irrevocably appointed as Borrowers attorney in fact, coupled with an interest, with exclusive power to collect, receive and retain any award or payment for said condemnation or eminent domain and to make any compromise or settlement in connection with such proceeding. Notwithstanding any taking by any public or quasi public authority through eminent domain or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), subject to the terms of Paragraphs 17 and 18 of the Lease Agreement, Borrower shall continue to pay the Secured Obligations at the time and in the manner provided for its payment in the Lease Agreement. The application of any award or payment made in any condemnation or eminent domain proceeding shall be governed by Paragraphs 17, 18 and 19 of the Lease Agreement.
12 . BORROWER AND LIEN NOT RELEASED. From time to time, Lender may, at Lenders option, without giving notice to or obtaining the consent of Borrower, Borrowers successors or assigns or of any junior lienholder or guarantors, without liability on Lenders part and notwithstanding Borrowers breach of any covenant or agreement of Borrower in this Instrument, extend the time for payment of said indebtedness or any part thereof, reduce the payments thereon, release anyone liable on any of said indebtedness, accept a renewal note or notes therefor, modify the terms and time of payment of said indebtedness, release from the lien of this Instrument any part of the Property, take or release other or additional security, reconvey any part of the Property, consent to any map or plan of the Property, consent to the granting of any easement, join in any extension or subordination agreement, and agree in writing with Borrower to modify the rate of interest or period of amortization of the Lease Agreement or change the amount of the monthly installments payable thereunder. Any actions taken by Lender pursuant to the terms of this paragraph 12 shall not affect the obligation of Borrower or Borrowers successors or assigns to pay the sums secured by this Instrument and to observe the covenants of Borrower contained herein, shall not affect the guaranty of any person, corporation, partnership or other entity for payment of the indebtedness secured hereby, and shall not affect the lien or priority of lien hereof on the Property. Borrower shall pay Lender a reasonable service charge, together with such title insurance premiums and attorneys fees as may be incurred at Lenders option, for any such action if taken at Borrowers request.
13 . FORBEARANCE BY LENDER NOT A WAIVER. Any forbearance by Lender in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any right or remedy. The acceptance by Lender of payment of any sum secured by this Instrument after the due date of such payment shall not be a waiver of Lenders right to either require prompt payment when due of all other sums so secured or to declare a default for failure to make prompt payment. The procurement of insurance or the payment of taxes or other liens or charges by Lender shall not be a waiver of Lenders right to accelerate the maturity of the indebtedness secured by this Instrument, nor shall Lenders receipt of any awards, proceeds or damages under paragraphs 5 and 11 hereof operate to cure or waive Borrowers default in payment of sums secured by this Instrument.
14 . ESTOPPEL CERTIFICATE. Borrower shall furnish to Lender estoppel certificates as required by Paragraph 25 of the Lease Agreement.
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15 . UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. To the extent any of the property described in this Instrument is personal property, Borrower, as debtor, grants to Lender, as secured party, a security interest therein together with a security interest in all other personal property of whatsoever nature that is located on or used or to be used in connection with any of the property described in this Instrument, and any products or proceeds of any thereof, pursuant to the Uniform Commercial Code of the State of New York (the UCC ), on the terms and conditions contained herein. Borrower hereby authorizes Lender to file any financing statement, fixture filing or similar filing to perfect the security interests granted in this Security Instrument without Borrowers signature. Borrower shall: (a) execute and deliver such documents as Lender deems reasonably necessary to create, perfect and continue the security interests contemplated by this Instrument; (b) not change its name, or, as applicable, its chief executive office, its principal residence (or, if Borrower is a trust or one or more trustees acting with respect to property held in trust, the identity or principal residence of any trustee), the jurisdiction in which it is organized, or otherwise change its location (as that term is used in Article 9 of the UCC), without giving Lender at least thirty (30) days prior written notice thereof; and (c) cooperate with Lender in perfecting all security interests granted in this Security Instrument and in obtaining such agreements from third parties as Lender deems necessary, proper or desirable in connection with the preservation, perfection or enforcement of any of Lenders rights under this Instrument.
16 . LEASES. Except as otherwise provided in Paragraph 21 of the Lease Agreement, Borrower shall not, without Lenders written consent, execute, modify, surrender or terminate, either orally or in writing, any lease or other agreement for the occupancy or use of all or any part of the Property, permit an assignment or sublease of any lease or other agreement for the occupancy or use of all or any part of the Property, or request or consent to the subordination of any lease or other agreement for the occupancy or use of all or any part of the Property of all or any part of the Property to any lien subordinate to this Instrument.
17 . REMEDIES CUMULATIVE. Each remedy provided in this Instrument is distinct and cumulative to all other rights or remedies under this Instrument or afforded by law or equity, and may be exercised concurrently, independently, or successively, in any order whatsoever.
18 . ACCELERATION IN CASE OF BORROWERS INSOLVENCY. If Borrower shall voluntarily file a petition under Title 11 of the U.S. Code (the Act ), as such Act may from time to time be amended, or under any similar or successor Federal statute relating to bankruptcy, insolvency, arrangements or reorganizations, or under any state bankruptcy or insolvency act, or file any answer in an involuntary proceeding admitting insolvency or inability to pay debts, or if Borrower shall fail to obtain a vacation or stay of involuntary proceedings brought for the reorganization, dissolution or liquidation of Borrower within ninety (90) days of the filing of such involuntary proceeding, or if Borrower shall be adjudged a bankrupt, or if a trustee or receiver shall be appointed for Borrower or Borrowers property, or if the Property shall become subject to the jurisdiction of a Federal bankruptcy court or similar state court, or if Borrower shall make an assignment for the benefit of Borrowers creditors, or if there is an attachment, execution or other judicial seizure of any portion of Borrowers assets and such seizure is not discharged within fifteen (15) days, then Lender may, at Lenders option, declare all of the sums secured by this Instrument to be immediately due and payable without prior notice to Borrower, and Lender may invoke any remedies permitted by paragraph 27 of this Instrument. Any attorneys fees and other expenses incurred by Lender in connection with Borrowers bankruptcy or any of the other
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aforesaid events shall be additional indebtedness of Borrower secured by this Instrument pursuant to paragraph 8 hereof.
19 . TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN BORROWER. Borrower acknowledges that Lender has examined and relied on the creditworthiness and experience of Borrower in owning and operating properties such as the Property in agreeing to make the Loan, and that Lender will continue to rely on Borrowers ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Secured Obligations. Except as expressly permitted under the Lease Agreement, Borrower shall not cause or suffer to occur or exist, directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, any sale, transfer, mortgage, pledge, lien or encumbrance (collectively, Transfers ) of (i) all or any part of the Property or any interest therein, including, but not limited to, the Lease Agreement, or (ii) any direct or indirect beneficial ownership interest (in whole or in part) in Borrower, irrespective of the number of tiers of ownership, without the prior written consent of Lender. The occurrence of any Transfer in violation of this paragraph 19 shall constitute an Event of Default hereunder, whereupon Lender at its option, without being required to demonstrate any actual impairment of its security or any increased risk of default hereunder, may declare the Secured Obligations immediately due and payable, and Lender may invoke any remedies permitted by paragraph 27 of this Instrument. Lenders consent to any Transfer of the Property or any interest in Borrower shall not be deemed to be a waiver of Lenders right to require such consent to any future occurrence of same. Any attempted or purported Transfer of the Property or of any direct or indirect interest in Borrower, if made in contravention of this paragraph 19 , shall be null and void and of no force and effect.
20 . NOTICE. Any notice, demand, statement, request or consent made hereunder shall be in writing, addressed to the intended recipient at its address set forth in Paragraph 24 of the Lease Agreement, and shall be made and deemed given in accordance with the terms of the Lease Agreement.
21 . SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY; AGENTS; CAPTIONS. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of Lender and Borrower, subject to the provisions of paragraph 19 hereof. Lender may at any time sell, assign, participate or securitize all or any portion of Lenders rights and obligations under the Loan Documents but only in connection with a transfer of Lenders rights under the Lease Agreement in accordance with and subject to the terms of the Lease Agreement or, subject to the terms of the Lease Agreement, by way of collateral security, to any Person (and its respective successors and assigns) which may, on or after the date hereof, make a Loan (as defined in the Lease Agreement) to Lender or be the holder of a Note. All covenants and agreements of Borrower shall be joint and several. In exercising any rights hereunder or taking any actions provided for herein, Lender may act through its employees, agents or independent contractors as authorized by Lender. The captions and headings of the paragraphs of this Instrument are for convenience only and are not to be used to interpret or define the provisions hereof.
22 . GOVERNING LAW; SEVERABILITY. This Instrument was negotiated in New York, and made by Borrower and accepted by Lender in the State of New York, and the proceeds were disbursed from New York, which State the parties agree has a substantial relationship to the parties and to the underlying transaction embodied hereby, and in all respect, including, without limiting the generality of the foregoing, matters of construction, validity and
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performance. This Instrument 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, Borrower hereby unconditionally and irrevocably waives any claim to assert that the law of any other jurisdiction governs this Instrument, and this Instrument 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. In the event that any provision of this Instrument or the Lease Agreement conflicts with applicable law, such conflict shall not affect other provisions of this Instrument or the Lease Agreement which can be given effect without the conflicting provisions, and to this end the provisions of this Instrument and the Lease Agreement are declared to be severable.
23 . FIXTURE FILING. This Instrument constitutes a financing statement, filed as a fixture filing in the real estate records of the county of the state in which the real property described in Exhibit A is located, with respect to any and all fixtures included within the list of improvements and fixtures described in Section (C) of the preambles of this Instrument and to any goods or other personal property that are now or hereafter will become a part of the Property as fixtures.
24 . WAIVER OF MARSHALLING; WAIVER OF SETOFF AND COUNTERCLAIM; TIME OF ESSENCE. Notwithstanding the existence of any other security interests in the Property held by Lender or by any other party, Lender shall have the right to determine the order in which any or all of the Property shall be subjected to the remedies provided herein. Lender shall have the right to determine the order in which any or all portions of the indebtedness secured hereby are satisfied from the proceeds realized upon the exercise of the remedies provided herein. Borrower, any party who consents to this Instrument and any party who now or hereafter acquires a security interest in the Property and who has actual or constructive notice hereof hereby waives any and all right to require the marshalling of assets in connection with the exercise of any of the remedies permitted by applicable law or provided herein. All amounts due under this Instrument, the Lease Agreement and the other Loan Documents shall be payable without setoff, counterclaim or any deduction whatsoever, except as otherwise expressly provided in the Lease Agreement. Borrower hereby waives the right to assert a setoff, counterclaim or deduction in any action or proceeding in which Lender is a participant, or arising out of or in any way connected with this Instrument, the Lease Agreement, any of the other Loan Documents, or the Secured Obligations. Time is of the essence as to all of the terms, covenants and condition of this Instrument and the other Loan Documents.
25 . INDEMNIFICATION . Borrower shall comply with its indemnification obligations pursuant to and in accordance with Paragraph 15 of the Lease Agreement.
26 . ASSIGNMENT OF RENTS; APPOINTMENT OF RECEIVER; LENDER IN POSSESSION. As part of the consideration for the indebtedness evidenced by the Lease Agreement, Borrower hereby absolutely and unconditionally assigns and transfers to Lender all the rents and revenues of the Property, including those now due, past due, or to become due by virtue of any lease or other agreement for the occupancy or use of all or any part of the Property, regardless of to whom the rents and revenues of the Property are payable. Borrower hereby authorizes Lender or Lenders agents to collect the aforesaid rents and revenues and hereby directs each tenant of the Property to pay such rents to Lender or Lenders agents; provided, however, that prior to the occurrence of any Event of Default beyond any applicable cure or grace periods set
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forth in the Lease Agreement, Borrower shall collect and receive all rents and revenues of the Property as trustee for the benefit of Lender and Borrower, to apply the rents and revenues so collected to the sums secured by this Instrument in the order provided in the Lease Agreement with the balance, so long as no such Event of Default has occurred and is continuing, to the account of Borrower, it being intended by Borrower and Lender that this assignment of rents constitutes an absolute assignment and not an assignment for additional security only. Upon delivery of written notice by Lender to Borrower containing a statement that Lender exercises its rights to such rents (the Assignment Notice ), which Assignment Notice may be delivered at any time during the continuance of any Event of Default beyond any applicable cure or grace periods set forth in the Lease Agreement, and without the necessity of Lender entering upon and taking and maintaining full control of the Property in person, by agent or by a court-appointed receiver, Lender shall immediately be entitled to possession of all rents and revenues of the Property as specified in this paragraph 26 as the same become due and payable, including but not limited to rents then due and unpaid, and all such rents shall immediately, upon the occurrence of any Event of Default beyond any applicable cure or grace periods set forth in the Lease Agreement, be held by Borrower as trustee for the benefit of Lender only. Borrower agrees that commencing upon delivery of such Assignment Notice, each tenant of the Property shall make such rents payable to and pay such rents to Lender or Lenders agents on Lenders written demand to each tenant therefor, delivered to each tenant personally, by mail or by delivering such demand to each rental unit, without any liability on the part of said tenant to inquire further as to the existence of a default by Borrower.
Borrower hereby covenants that Borrower has not executed any prior assignment of said rents, that Borrower has not performed, and will not perform, any acts or has not executed, and will not execute, any instrument which would prevent Lender from exercising its rights under this paragraph 26 , and that at the time of execution of this Instrument there has been no anticipation or prepayment of any of the rents of the Property for more than one month prior to the due dates of such rents. Borrower covenants that Borrower will not hereafter collect or accept payment of any rents of the Property more than one month prior to the due dates of such rents. Borrower further covenants that Borrower will execute and deliver to Lender such further assignments of rents and revenues of the Property as Lender may from time to time request.
During the continuance of any Event of Default beyond any applicable cure or grace periods set forth in the Lease Agreement, Lender shall be entitled to the appointment of a receiver for the Property, without notice to Borrower or any other person or entity and Lender may in person, by agent or by a court appointed receiver, regardless of the adequacy of Lenders security, enter upon and take and maintain full control of the Property in order to perform all acts necessary and appropriate for the operation and maintenance thereof including, but not limited to, the execution, cancellation or modification of leases, the collection of all rents and revenues of the Property, the making of repairs to the Property and the execution or termination of contracts providing for the management or maintenance of the Property, all on such terms as are deemed best to protect the security of this Instrument. In the event Lender elects to seek the appointment of a receiver for the Property during the continuance of any Event of Default beyond any applicable cure or grace periods set forth in the Lease Agreement, Borrower hereby expressly consents to the appointment of such receiver. Lender or the receiver shall be entitled to receive a reasonable fee for so managing the Property.
All rents and revenues collected subsequent to delivery of the Assignment Notice shall be applied first to the costs, if any, of taking control of and managing the Property and collecting the rents, including, but not limited to, attorneys fees, receivers fees, premiums on
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receivers bonds, costs of repairs to the Property, premiums on insurance policies, taxes, assessments and other charges on the Property, and the costs of discharging any obligation or liability of Borrower as lessor or landlord of the Property and then to the sums secured by this Instrument. Lender or the receiver shall have access to the books and records used in the operation and maintenance of the Property in the manner provided in Paragraph 28 of the Lease Agreement and shall be liable to account only for those rents actually received. Lender shall not be liable to Borrower, anyone claiming under or through Borrower or anyone having an interest in the Property by reason of anything done or left undone by Lender under this paragraph 26 .
If the rents of the Property are not sufficient to meet the costs, if any, of taking control of and managing the Property and collecting the rents, any funds expended by Lender for such purposes shall become indebtedness of Borrower to Lender secured by this Instrument pursuant to paragraph 8 hereof. Unless Lender and Borrower agree in writing to other terms of payment, such amounts shall be payable upon notice from Lender to Borrower requesting payment thereof and shall bear interest from the date of disbursement at the rate stated in the Lease Agreement unless payment of interest at such rate would be contrary to applicable law, in which event such amounts shall bear interest at the highest rate which may be collected from Borrower under applicable law.
Any entering upon and taking and maintaining of control of the Property by Lender or the receiver and any application of rents as provided herein shall not cure or waive any default hereunder or invalidate any other right or remedy of Lender under applicable law or provided herein. This assignment of rents of the Property shall terminate at such time as this Instrument ceases to secure indebtedness held by Lender.
27 . ACCELERATION; REMEDIES. Upon the occurrence and during the continuance of any Event of Default, all the Secured Obligations shall become immediately due and payable, without notice or demand, at the option of Lender and Lender may:
(a) Have a receiver appointed as a matter of right on an ex parte basis without notice to Borrower and without regard to the sufficiency of the Property or any other security for the Secured Obligations and without the necessity of posting any bond or other security. Such receiver shall take possession and control of the Property and shall collect and receive the rents and revenues of the Property. If Lender elects to seek the appointment of a receiver for the Property, Borrower, by its execution of this Instrument, expressly consents to the appointment of such receiver, including the appointment of a receiver ex parte if permitted by applicable law. The receiver shall be entitled to receive a reasonable fee for managing the Property, which fee may be deducted from the rents and revenues of the Property or may be paid by Lender and added to the Secured Obligations. Immediately upon appointment of a receiver, Borrower shall surrender possession of the Property to the receiver and shall deliver to the receiver all documents, records (including records on electronic or magnetic media), accounts, surveys, plans, and specifications relating to the Property and all security deposits. If the rents and revenues of the Property are not sufficient to pay the costs of taking control of and managing the Property and collecting the rents and revenues of the Property, any funds expended by Lender, or advanced by Lender to the receiver, for such purposes shall become an additional part of the Secured Obligations. The receiver may exclude Borrower and its representatives from the Property. Borrower acknowledges and agrees that the exercise by Lender of any of the rights conferred under this paragraph 27 shall not be construed to make Lender a mortgagee in possession of the Property.
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(b) Foreclose this Instrument as provided in paragraph 39 or otherwise realize upon the Property as permitted under applicable law.
(c) Exercise any of the remedies set forth in Paragraphs 23(a)(i) and 23(b)(i) of the Lease Agreement which are incorporated herein by reference.
(d) Avail itself of any other right or remedy available to it under the terms of this Instrument, the other Loan Documents or applicable law.
Notwithstanding anything under this paragraph 27 or paragraph 39 to the contrary, the extent and the amount of any payments payable hereunder by the Borrower to the Lender upon the occurrence and during the continuance of any Event of Default, including, without limitation, the amount of the Secured Obligations which may be accelerated and any damages which may be payable, shall be governed by, and limited to the amounts recoverable under, Paragraphs 23(a)(i) and 23(b)(i) of the Lease Agreement.
28 . RELEASE. Upon satisfaction of the Secured Obligations, which shall include, without limitation, upon conveyance of the Property to Borrower pursuant to Paragraphs 18, 34 or 35 of the Lease Agreement and payment of all sums due by Borrower to Lender upon such conveyance, Lender shall release or, at Borrowers request, assign this Instrument, without recourse, warranty or representation whatsoever to the refinancing lender. Borrower shall pay Lenders reasonable costs incurred in discharging or assigning this Instrument and deliver to Lender an affidavit pursuant to Section 275 of the New York Real Property Law and such other documents and instruments as Lender may reasonably request.
29 . RELATIONSHIP OF PARTIES. The relationship of Lender and Borrower is solely that of debtor and creditor, and Lender has no fiduciary or other special relationship with the Borrower, and no term or condition of any of the Loan Documents shall be construed to be other than that of debtor and creditor. Borrower represents and acknowledges that neither the Loan Documents nor any course of dealing between the parties creates any partnership or joint venture between Borrower and Lender or any other person, nor does it provide for any shared appreciation rights or other equity participation interest.
30 . INCORPORATION OF TERMS OF LEASE AGREEMENT. All terms and conditions of the Lease Agreement are incorporated herein as if set forth in full in this Instrument.
31 . DEFINITION OF DEFAULT. Borrower is in default upon the occurrence and continuance of any Event of Default as defined in the Lease Agreement.
32 . RECORDING OF MORTGAGE, ETC. Upon the execution and delivery of this Instrument and thereafter, from time to time, Borrower will cause this Instrument, and any security instrument creating a lien or security interest or evidencing the lien hereof upon the Property and each instrument of further assurance to be filed, registered or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect the lien or security interest hereof upon, and the interest of Lender in, the Property. Borrower will pay all filing, registration or recording fees, and all expenses incident to the preparation, execution and acknowledgment of this Instrument, any mortgage supplemental hereto, any security instrument with respect to the Property and any instrument of further
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assurance, and all federal, state, county and municipal, taxes, duties, imposts, assessments and charges arising out of or in connection with the execution and delivery of this Instrument, any deed of trust supplemental hereto, any security instrument with respect to the Property or any instrument of further assurance, except where prohibited by law so to do.
33 . BORROWERS ADDITIONAL COVENANTS. Borrower hereby covenants, agrees and undertakes to:
(a) from time to time, at the request of Lender, (i) promptly correct any defect, error or omission which may be discovered in the contents of this Instrument, the Lease Agreement or in any other Loan Document or in the execution or acknowledgement thereof; (ii) execute, acknowledge, deliver and record and/or file such further documents or instruments (including, without limitation, further mortgages, security agreements, financing statements, continuation statements, assignments of rents or leases and environmental indemnity agreements) and perform such further acts and provide such further assurances as may be necessary, desirable or proper, in Lenders reasonable opinion, to carry out more effectively the purposes of this Instrument and such other instruments and to subject to the liens and security interests hereof and thereof any property intended by the terms hereof or thereof to be covered hereby or thereby, including specifically, but without limitation, any renewals, additions, substitutions, replacements, or appurtenances to the Property; provided that such documents or instruments do not increase Borrowers liability or decrease Borrowers rights under the Loan Documents (other than to a deminimus extent); and (iii) execute, acknowledge, deliver, procure, and file and/or record any document or instrument (including specifically, but without limitation, any financing statement) reasonably deemed advisable by Lender to protect the liens and the security interests herein granted against the rights or interests of third persons; provided that such documents or instruments do not increase Borrowers liability or decrease Borrowers rights under the Loan Documents (other than to a deminimus extent). Borrower will pay all reasonable costs connected with any of the foregoing in this subparagraph (a) ;
(b) continuously maintain Borrowers existence and right to do business in the State of New York;
(c) not execute or deliver any mortgage or pledge of any type covering all or any portion of the Property; and
(d) continuously comply with its single purpose, bankruptcy remote status in accordance with the requirements of the Eighth Article of the Borrowers Articles of Organization as of the date of this Instrument.
34 . TAXES ON SECURITY; DOCUMENTARY STAMPS; INTANGIBLES TAX . Borrower shall pay all taxes, charges, filing, registration and recording fees, excises and levies payable under and/or with respect to the Lease Agreement, this Instrument or the liens created or secured by the Loan Documents, other than income, franchise and doing business taxes imposed on Lender. If at any time the United States of America, any State thereof or any subdivision of any such State shall require revenue or other stamps to be affixed to the Lease Agreement or this Instrument, or impose any other tax or charge on the same, Borrower will pay for the same, with interest and penalties thereon, if any. Borrower hereby agrees that, in the event that it is determined that additional documentary stamp tax or intangible tax is due hereon or any mortgage, deed of trust or promissory note executed in connection herewith (including,
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without limitation, the Lease Agreement), Borrower shall indemnify and hold harmless Lender for all such documentary stamp tax and/or intangible tax, including all penalties and interest assessed or charged in connection therewith. Borrower shall pay same within ten (10) days after demand of payment from Lender and the payment of such sums shall be secured by this Instrument and such sums shall bear interest at the Default Rate (as defined in the Lease Agreement) from and after the eleventh (11th) day after demand until paid in full. Borrower shall hold harmless and indemnify Lender, its successors and assigns, against any liability incurred by reason of the imposition of any tax on the making and recording of this Instrument.
35 . MAXIMUM INTEREST . In the event that any applicable law limiting the amount of interest or other charges permitted to be collected from Borrower is interpreted so that any charge provided for in this Instrument or in the Lease Agreement, whether considered separately or together with other charges levied in connection with this Instrument and the Lease Agreement, violates such law, and Borrower is entitled to the benefit of such law, such charge is hereby reduced to the extent necessary to eliminate such violation. The amounts, if any, previously paid to Lender in excess of the amounts payable to Lender pursuant to such charges as reduced shall be applied by Lender to reduce the principal of the indebtedness evidenced by the Lease Agreement. For the purpose of determining whether any applicable law limiting the amount of interest or other charges permitted to be collected from Borrower has been violated, all indebtedness which is secured by this Instrument or evidenced by the Lease Agreement and which constitutes interest, as well as all other charges levied in connection with such indebtedness which constitute interest, shall be deemed to be allocated and spread over the stated term of the Lease Agreement. Unless otherwise required by applicable law, such allocation and spreading shall be effected in such a manner that the rate of interest computed thereby is uniform throughout the stated term of the Lease Agreement.
36 . ATTORNEYS FEES AND LEGAL EXPENSES . In the event of any Event of Default under this Instrument, or in the event that any dispute arises relating to the interpretation, enforcement or performance of any Secured Obligation, Lender shall be entitled to collect from Borrower on demand all fees and expenses incurred in connection therewith, including but not limited to reasonable fees of attorneys and fees of accountants, appraisers, environmental inspectors, consultants, expert witnesses, arbitrators, mediators and court reporters. Without limiting the generality of the foregoing, Borrower shall pay all such costs and expenses incurred in connection with: (a) arbitration or other alternative dispute resolution proceedings, trial court actions and appeals; (b) bankruptcy or other insolvency proceedings of Borrower, any guarantor or other party liable for any of the Secured Obligations or any party having any interest in any security for any of those obligations; (c) judicial or nonjudicial foreclosure on, or appointment of a receiver for, any of the Property; (d) post-judgment collection proceedings; (e) all claims, counterclaims, cross-claims and defenses asserted in any of the foregoing whether or not they arise out of or are related to this Instrument; (f) all preparation for any of the foregoing; and (g) all settlement negotiations with respect to any of the foregoing.
37 . WAIVER OF JURY TRIAL. BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THE BORROWER MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONJUNCTION WITH THE LEASE AGREEMENT, THIS INSTRUMENT, ANY OTHER LOAN DOCUMENT, ANY OTHER AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE
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OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY.
38 . TRANSFER OF LOAN. Subject to the terms of the Lease Agreement, Lender may, at any time, and at Lenders sole cost and expense, sell, transfer or assign the Lease Agreement, this Instrument and the Loan Documents, or any part thereof, and any or all servicing rights with respect thereto, or grant participations therein. Lender may forward to each purchaser, transferee, assignee, servicer or participant (singularly, an Investor , and collectively, the Investors ) and each prospective Investor, all documents and information which Lender now has or may hereafter acquire relating to the Loan and to Borrower, any guarantor, any indemnitors and/or the Property, whether furnished by Borrower, any guarantor, any indemnitors or otherwise, as Lender determines necessary or desirable. Borrower shall furnish and Borrower consents to Lender furnishing to such Investors or such prospective Investors any and all information concerning the Property, the leases, the financial condition of Borrower, any guarantor and any indemnitor as may be reasonably requested by Lender, any Investor or any prospective Investor in connection with any sale, transfer or participation interest.
39 . RIGHTS AND REMEDIES. Upon the occurrence of any Event of Default beyond applicable notice and cure periods set forth in the Lease Agreement, Lender shall have the option, without notice or demand, to declare all Secured Obligations immediately due and payable and to proceed to foreclose on this Instrument as now or then provided by law (in which event Lender shall be entitled to the appointment of a receiver) pursuant to a judicial proceeding in accordance with Article 13 of the New York Real Property Actions and Proceedings Law ( RPAPL ) or by advertisement in accordance with Article 14 of RPAPL. Any foreclosure shall forever bar Borrower and all persons claiming under Borrower from all right and interest in the Property. In any such proceeding Lender shall be entitled to recover all costs and expenses (regardless of the particular nature thereof and whether incurred prior to or during such proceeding) incident to the realization of its rights hereunder, including court costs and reasonable attorneys fees. Lender shall be entitled to possession of the Property during any period of redemption. Borrower hereby waives any right it or its successors in interest may have in the event of acceleration or foreclosure to obtain a partial release of the Property from the lien of this Instrument by paying less than the entire amount then secured hereby, or to partially redeem the Property by paying less than the amount necessary to effect full redemption. If a deficiency remains after proper application of the proceeds of sale of the Property, Borrower shall pay the same immediately after determination of the amount thereof.
40 . SPECIAL NEW YORK LOCAL LAW PROVISIONS.
40 .1 INCONSISTENCIES. In the event of any inconsistencies between the terms and conditions of this paragraph 40 and the other provisions of this Instrument, the terms and conditions of this paragraph 40 shall control and be binding.
40 .2 TRUST FUND. Pursuant to Section 13 of the New York Lien Law, Borrower shall receive the advances secured hereby and shall hold the right to receive the advances as a trust fund to be applied first for the purpose of paying the cost of any improvement and shall apply the advances first to the payment of the cost of any such improvement on the Property before using any part of the total of the same for any other purpose.
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40 .3 COMMERCIAL PROPERTY. Borrower represents that this Instrument does not encumber real property principally improved or to be improved by one or more structures containing in the aggregate not more than six residential dwelling units, each having its own separate cooking facilities.
40 .4 INSURANCE. The provisions of Subsection 4 of Section 254 of the New York Real Property Law covering the insurance of buildings against loss by fire shall not apply to this Instrument. In the event of any conflict, inconsistency or ambiguity between the provisions of paragraph 5 above and the provisions of Subsection 4 of Section 254 of the New York Real Property Law covering the insurance of buildings against loss by fire, the provisions of paragraph 5 shall control.
40 .5 LEASES. Lender shall have all of the rights against lessees of the Property set forth in Section 291-f of the Real Property Law of New York.
40 .6 STATUTORY CONSTRUCTION. The clauses and covenants contained in this Instrument that are construed by Section 254 of the New York Real Property Law shall be construed as provided in those paragraphs (except as provided in paragraph 40.4 ). The additional clauses and covenants contained in this Instrument shall afford rights supplemental to and not exclusive of the rights conferred by the clauses and covenants construed by Section 254 and shall not impair, modify, alter or defeat such rights (except as provided in paragraph 40.4 ), notwithstanding that such additional clauses and covenants may relate to the same subject matter or provide for different or additional rights in the same or similar contingencies as the clauses and covenants construed by Section 254. The rights of Lender arising under the clauses and covenants contained in this Instrument shall be separate, distinct and cumulative and none of them shall be in exclusion of the others. No act of Lender shall be construed as an election to proceed under any one provision herein to the exclusion of any other provision, anything herein or otherwise to the contrary notwithstanding. In the event of any inconsistencies between the provisions of Section 254 and the provisions of this Instrument, the provisions of this Instrument shall prevail.
40 .7 MAXIMUM PRINCIPAL AMOUNT SECURED. Notwithstanding anything to the contrary contained in this Instrument, the maximum amount of principal indebtedness secured by this Instrument or which under any contingency may be secured by this Instrument is TWO HUNDRED FIFTY MILLION and 00/100 Dollars ($250,000,000.00), which amount represents the sum of (A) the outstanding principal indebtedness under the Underlying Mortgage (hereinafter defined) and (B) the new principal indebtedness created by the Lease Agreement in the amount of SEVENTY FIVE MILLION AND 00/100 DOLLARS ($75,000,000.00), plus any amounts expended by the Lender after an Event of Default on account of (a) taxes, charges or assessments which may be imposed by law upon the Property; (b) premiums on insurance policies covering the Property; (c) expenses incurred in upholding the lien of this Instrument, including, but not limited to (i) the expenses of any litigation to prosecute or defend the rights and lien created by this Instrument; (ii) any amount, cost or charges to which Lender becomes subrogated, upon payment, whether under recognized principles of law or equity, or under express statutory authority and (iii) interest, default interest and other charges at the rate and in the amounts set forth in the Loan Documents. In no event shall any owner of the Property be obligated for an indebtedness of more than the indebtedness created hereby and by the Lease Agreement and the pre-existing indebtedness secured by the Underlying Mortgage as provided in this paragraph 40.7 .
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40 .8 LIEN LAW. Borrower will, in compliance with Section 13 of the New York Lien Law, receive the advances secured hereby and will hold the right to receive such advances in a trust fund to be applied first for the purpose of paying the cost of any improvement and will apply the same first to the payment of the cost of any such improvement before using any part of the total of the advance for any other purpose.
40 .9 CONDOMINIUM REGIME .
(a) The Property is subject to a condominium regime pursuant to the Declaration of Condominium (as amended to date, collectively the Declaration ) of The New York Times Building LLC (the Condominium ) specified in Exhibit A attached hereto, dated as of August 4, 2006 made by The New York Times Building LLC and recorded in the Office of the City Register, New York County 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 Office of the City Register, New York County 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 Office of the City Register, New York County 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 Office of the City Register, New York County. A Board of Managers (the Board of Managers ) governs the Condominium pursuant to the by-laws of the Condominium (the Bylaws ) which were recorded in the like office together with the Declaration. Borrower represents and covenants that Borrower is in compliance with, and at all times hereafter shall maintain compliance with, the terms of the Lease Agreement with respect to any Condominium Documents.
(b) Borrower will fully and faithfully perform and comply with the terms, conditions, and provisions of the Condominium Documents.
(c) Borrower will use its commercially reasonable efforts, within fifteen (15) days after written demand by Lender, to obtain from the Board of Managers under the Condominium Documents and furnish to Lender the estoppel certificate in recordable form of such Board of Managers either required to be issued by such Board of Managers pursuant to the provisions of the Condominium Documents or in form reasonably requested by Lender.
40 .10 GROUND SUBLEASEHOLD MORTGAGE PROVISIONS.
(a) Borrower hereby represents, covenants and warrants that as to its interest in the Property:
(i) The Severance Lease is in full force and effect and unmodified, no default has occurred under the Severance Lease which would affect Borrowers sublease and there is no existing condition which, but for the passage of time or the giving of notice, would result in a default under the terms of the Severance Lease by the Borrower.
(ii) All rents, additional rents, taxes, assessments, water rates, sewer rents, impositions and other charges due or payable under the Severance Lease have been paid to the extent they were payable prior to the date hereof.
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(iii) Borrower shall maintain the quiet and peaceful possession of Lender of the Property and shall defend the Severance Leasehold Estate created under the Severance Lease for the entire remainder of the term set forth therein including all renewal options thereunder, against all and every person or persons lawfully claiming, or who may claim the same or any part thereof, and to the performance and observance of all of the terms, covenants, provisions and conditions thereof.
(iv) There is no existing default by Borrower under the provisions of the Severance Lease or in the performance of any of the terms, covenants, provisions or conditions thereof on the part of the lessee to be observed and performed.
(v) Borrower has not further encumbered the Property (other than by the Permitted Encumbrances) or assigned the Severance Lease.
(vi) The Severance Lease has been duly recorded as set forth herein and permits the interest of the Borrower thereunder to be encumbered by this Instrument, and there has not been a material change in the terms of the Severance Lease since its recordation.
(vii) Except for the Permitted Encumbrances, Borrowers interest in the Severance Lease is not subject to any liens or encumbrances superior to, or of equal priority with, this Instrument, other than the lessor under the Severance Lease related fee interest.
(viii) Borrowers interest in the Severance Lease is assignable upon notice to, but without the consent of, the lessor under the Severance Lease (or, if any such consent is required, it has been obtained prior to the date of this Instrument) or, in the event that it is so assigned, it is further assignable and its successors and assigns upon notice to, but without a need to obtain the consent of, such lessor under the Severance Lease.
(b) Except as otherwise provided in Paragraph 9 of the Lease Agreement, Borrower hereby represents, covenants and warrants that as to its Severance Leasehold Estate Borrower shall pay or cause to be paid all rents, additional rents, taxes, assessments, water rates, sewer rents, impositions, and other charges mentioned in and made payable by the Severance Lease, for which provision has not been made hereinbefore, when and as the same shall become due and payable, and shall use its best efforts to cause the lessor under the Severance Lease, to the extent required by the Severance Lease, to pay any portion of said taxes, assessments, rates, charges and impositions to be borne by the lessor under the Severance Lease that might become liens on the Property or Borrowers estate therein prior to or on the date when they become due, and Borrower shall in every case take, or cause to be taken, a proper receipt for any such item so paid by Borrower and shall deliver, or cause to be delivered to Lender upon its request after any such payment, the original receipts or cancelled checks for any such payments by Borrower.
(c) Borrower hereby represents, covenants and warrants that as to its Severance Leasehold Estate Borrower shall at all times promptly and fully observe, keep and perform, or cause to be observed, kept and performed, all terms, covenants, provisions and conditions contained in the Severance Lease to be kept and performed in all respects. Borrower further covenants that it will not do or permit anything to be done, the doing of which, or refrain from doing anything, the omission of which, will impair or tend to impair the security of this Instrument or will be a default under the Severance Lease. If Borrower shall fail at all times to fully observe, perform and comply with all tenants, covenants, provisions and conditions under
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the Severance Lease beyond applicable notice and cure periods set forth in the Severance Lease, or do or permit anything to be done, the doing of which or refrain from doing, the omission of which will impair the security of this Instrument or will be a default under the Severance Lease beyond applicable notice and cure periods set forth in the Severance Lease (severally, a Severance Lease Default ), then, upon the happening of any such event, an Event of Default shall be deemed to have occurred pursuant to Paragraph 22(a)(vii) of the Lease Agreement and Lender, at its option, may either:
(i) accelerate the maturity of the indebtedness secured hereby and declare the same to be immediately due and payable and may invoke any remedies permitted by paragraph 27 and/or paragraph 39 of this Instrument; or
(ii) without limiting the generality of any other provision of this Instrument or any remedy of Lender hereunder and without waiving or releasing Borrower from any of its obligations hereunder, Lender may (but shall not be obligated to) take any action Lender deems necessary or desirable to prevent or to cure any default by Borrower in the performance of or compliance with any of Borrowers covenants or obligations under the Severance Lease. Upon receipt by Lender from the lessor under the Severance Lease of any written notice of default by lessee thereunder, Lender may rely thereon and take any action, as aforesaid, to cure such default even though the existence of such default or the nature thereof be questioned or denied by Borrower or by any party on behalf of Borrower.
(d) Borrower hereby expressly grants to Lender, and agrees that Lender shall have the absolute and immediate right to enter in and upon the Property or any part thereof to such extent and as often as Lender, in its sole discretion, deems necessary or desirable, in order to cure a Severance Lease Default by Borrower. Lender may pay and expend such sums of money as Lender, in its sole discretion, deems necessary for the purpose of remedying a Severance Lease Default, and Borrower hereby agrees to pay to Lender, upon demand, all such sums so paid and expended by Lender, together with default interest thereon and other charges at the Default Rate set forth in the Lease Agreement, computed from the date of payment thereof by Lender. Any such sum paid by Lender and the interest thereon shall be a lien on the Property prior to any claim, lien, right, title or interest in, to or on the Property attaching or accruing subsequent to the lien of this Instrument, and shall be deemed to be secured by this Instrument and evidenced by the Lease Agreement.
(e) Except to the extent expressly provided in the Lease Agreement, Borrower shall not modify, extend or in any way alter the terms of the Severance Lease or cancel or surrender the Severance Lease, or waive, excuse, condone or in any way release or discharge the lessor thereunder of or from the terms, covenants, provisions and conditions by said lessor to be done and performed; and, except to the extent expressly provided in the Lease Agreement, Borrower does by these presents expressly release, relinquish and surrender unto Lender all its right, power and authority to cancel, surrender, amend, modify or alter in any way the terms and provisions of the Severance Lease and any attempt on the part of Borrower to exercise any such right without the prior written consent of Lender shall constitute a default under the terms hereof and the indebtedness secured hereby shall, at the option of Lender, become due and payable forthwith and without notice.
(f) Borrower will promptly notify Lender in writing in the event of the initiation of any arbitration proceeding under and pursuant to the provisions of the Severance
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Lease, it being expressly agreed that if, at the time any such arbitration proceeding shall be initiated, a Severance Lease Default shall exist, Lender shall have, and is hereby granted, the sole and exclusive right to designate and appoint the arbitrator to be appointed by Borrower in such arbitration proceeding. In addition, Borrower shall promptly deliver to Lender a copy of the determination of the arbitrators in each such arbitration proceeding. Lender shall have the right to participate in such arbitration proceedings in association with Borrower or on its own behalf as an interested party;
(h) Borrower will use its commercially reasonable efforts, within fifteen (15) days after written demand by Lender, obtain from the lessor under the Severance Lease and furnish to Lender the estoppel certificate in recordable form of such lessor either required to be issued by such lessor pursuant to the provisions of the Severance Lease or in form reasonably requested by Lender;
(i) Borrower will, within fifteen (15) days after written demand by Lender, furnish Lender proof reasonably satisfactory to Lender of payment of all items which are required to be paid by Borrower pursuant to the Severance Lease.
(j) In the event Borrower and the lessor under the Severance Lease amend or modify the Severance Lease (but nothing herein shall be deemed or construed as permitting Borrower to amend or modify the Severance Lease without the express prior written consent of Lender), Borrower shall, upon the request of Lender, (i) cause the lessor under the Severance Lease to execute a memorandum of any such amendment or modification, provided, however, that Borrower shall not be in default under this subparagraph (j) so long as Borrower is using its best efforts to obtain such executed memorandum, (ii) execute said memorandum, (iii) cause such memorandum to be recorded (at Borrowers sole cost and expense), and (iv) reimburse Lender for all reasonable costs and expenses, including reasonable attorneys fees, incurred in connection with Lenders review of any such amendment, modification or memorandum thereof;
(k) Borrower will (i) upon request by Lender promptly deposit with Lender an original executed or certified copy of the Severance Lease and any and all documentary evidence received by it showing compliance by Borrower with the provisions of the Severance Lease, (ii) provide Lender an exact copy of any notice, communication, plan, specification or other instrument or document received or given by it in any way relating to or affecting the Severance Lease which may concern or affect the estate of the lessor or the lessee in or under the Severance Lease or in the real estate thereby demised, (iii) give Lender immediate notice of any receipt by it of any notice of default from the lessor thereunder, (iv) furnish to Lender within fifteen (15) days any and all information which it may request concerning the performance by Borrower of the agreements, terms, conditions and covenants of the Severance Lease or of this Instrument, and (v) permit Lender or its agents or representatives at all reasonable times to investigate or examine Borrower concerning such performance, and upon Borrowers failure so to do, Lender may, at its option, declare the Indebtedness secured hereby due and payable at once.
(l) So long as any of the Secured Obligations shall remain unpaid, unless Lender shall otherwise in writing consent, the fee title and the leasehold estate in the Property hereinbefore described, shall not merge but shall always be kept separate and distinct, notwithstanding the union of said estates either in the lessor or in the lessee, or in a third party, by purchase or otherwise; and Borrower further covenants and agrees that, in case it shall acquire the fee title, or any other estate, title or interest in the Property covered by the Severance Lease,
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including, without limitation, pursuant to the purchase option or right of first refusal, if any, set forth in the Severance Lease, this Instrument shall attach to or cover and be a lien upon such other estate so acquired, and such other estate so acquired by Borrower shall be considered as mortgaged, assigned or conveyed to Lender and the lien hereof spread to cover such estate with the same force and effect as though specifically herein mortgaged, assigned or conveyed, and spread. Upon such acquisition, Borrower, if required by Lender, at Borrowers sole cost and expense, shall deliver to Lender, an ALTA Lenders Title Insurance Policy issued by a title insurance company reasonably satisfactory to Lender, insuring that this Instrument, as so spread to cover Borrowers interest in such fee property, is valid lien on Borrowers interest therein. It is the intention of Borrower and Lender that no documents, instruments or agreements shall be necessary to confirm the foregoing spread of this Instrument to cover Borrowers interest in such fee property, as aforesaid, and that such spreader shall occur automatically upon the consummation of Borrowers acquisition of such estate, title or interest in such leased property. Notwithstanding the foregoing, Borrower shall make, execute, acknowledge and deliver to Lender or so cause to be made, executed, acknowledged and delivered to Lender in form reasonably satisfactory to Lender, all such further or other documents, instruments, agreements or assurances as may be reasonably required by Lender to confirm the foregoing spread of this Instrument to cover Borrowers interest in a fee property. Borrower shall pay all reasonable expenses incurred by Lender in connection with the preparation, execution, acknowledgment, delivery and/or recording of any such documents, including but without limiting the generality of the foregoing, all filing, registration and recording fees and charges, documentary stamps, mortgage taxes, intangible taxes, and reasonable attorneys fees, costs and disbursements. The provisions of this subparagraph (l) shall not apply in the event Lender acquires the Property, except if Lender shall so elect;
(m) Within five (5) days after Borrowers receipt of any notice of any motion, application or effort to reject the Severance Lease by the lessor under the Severance Lease or any trustee arising from or in connection with any case, proceeding or other action commenced or pending by or against any lessor under the Federal Bankruptcy Code (the Code ) or comparable provisions contained in any present or future federal, state, local, foreign or other statute, law, rule or regulation, Borrower shall give notice thereof to Lender. Borrower hereby (i) assigns to Lender any and all of Borrowers rights as lessee under Section 365(h) of the Code or any comparable provision contained in any present or future federal, state, local, foreign or other statute, law, rule or regulation ( Comparable Provision ), (ii) covenants that it shall not elect to treat the Severance Lease as terminated pursuant to Section 365(h) of the Code or any Comparable Provision without the prior written consent of Lender and (iii) agrees that any such election by Borrower without such consent shall be null and void;
(n) Without limiting the generality of the foregoing, Borrower hereby unconditionally assigns, transfers and sets over to Lender all of Borrowers claims and rights to the payment of damages arising from any rejection by the lessor under the Severance Lease of the Severance Lease under the Code or any Comparable Provision. Lender shall have the right to proceed in its own name or in the name of Borrower in respect of any claim, suit, action or proceeding relating to the right to file and prosecute, in cooperation with Borrower, any proofs of claim, complaints, motions, applications, notices under the Code or any Comparable Provision. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all of the indebtedness and obligations secured by this Instrument shall have been satisfied and discharged in full. Any amounts received by Lender in damages arising out of the rejection of any Severance Lease as
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aforesaid shall be applied first to all reasonable costs and expenses of Lender (including, without limitation, reasonable attorneys fees) incurred in connection with the exercise of any of its rights or remedies under this paragraph and thereafter as otherwise provided in this Instrument;
(o) If there shall be filed by or against Borrower a petition under the Code or any Comparable Provision and Borrower, as sublessee under the Severance Lease, shall determine to reject the Severance Lease, Borrower shall give Lender not less than ten (10) days prior notice of the date on which Borrower shall apply to the Bankruptcy Court or other judicial body with appropriate jurisdiction for authority to reject the Severance Lease. Lender shall have the right, but not the obligation to serve upon Borrower within such ten (10) day period a notice stating that (i) Lender demands that Borrower assume and assign its interests in the Severance Lease to Lender pursuant to Section 365 of the Code or any Comparable Provision and (ii) Lender covenants to cure or provide adequate assurance of prompt cure of all defaults and provide adequate assurance of future performance under the Severance Lease. If Lender serves upon Borrower the notice described in the preceding sentence, Borrower shall not seek to reject the Severance Lease and shall comply with the demand provided for in clause (i) of the preceding sentence within thirty (30) days after the notice shall have been given subject to the performance by Lender of the covenant provided for in clause (h) of the preceding sentence. Effective upon the entry of an order for relief in respect of Borrower under Chapter 7 of the Code or any Comparable Provision, Borrower hereby assigns and transfers to Lender a non-exclusive right to apply to the Bankruptcy Court or other judicial body with appropriate jurisdiction for an order extending the period during which the Severance Lease may be rejected or assumed;
(p) Borrower hereby assigns and sets over to Lender, as security for the obligations secured by this Instrument, all right, title and interest in and to Borrowers interest in the Severance Lease, and Lender shall have the right and power to exercise such options on behalf of Borrower at any time that Borrower could do so if, in the sole judgment of Lender, it is appropriate to do so in order to protect Lenders interests. Borrower hereby grants to Lender a power of attorney to execute and deliver such extension notices on behalf of Borrower, it being stipulated that such power of attorney is coupled with an interest and irrevocable for so long as this Security Instrument remains in effect. Upon the request of Lender, Borrower shall execute any documents or instruments reasonably requested by Lender in order to confirm the existence of the power of attorney set forth in this subsection, including, without limitation, a separate power of attorney in recordable form with respect to the matters covered by this subsection. Lender shall further have a power of attorney, it being stipulated that such power of attorney is coupled with an interest and is irrevocable for so long as this Security Instrument remains in effect, to execute any and all other documents required by this Security Instrument with respect to the Severance Lease, and to perform any and all acts required of Borrower under this Instrument with respect to the Severance Lease, if Borrower fails to do so promptly after demand by Lender. Notwithstanding anything herein to the contrary, prior to the occurrence of any Event of Default beyond any applicable cure or grace periods set forth in the Lease Agreement, Borrower shall have such rights, privileges and benefits with respect to the Severance Lease as set forth in paragraph 4(c) of the Lease Agreement.
(q) If the Severance Lease shall be terminated prior to the natural expiration of its term due to a default or event of default thereunder, and if, pursuant to any provision of the Severance Lease or otherwise, Lender or its designee shall acquire from the lessor under the Severance Lease a new lease of the Property, Borrower shall have no right title or interest in or to such new lease or the leasehold estate created thereby, or renewal privileges therein contained;
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(r) Borrower has not consented and shall not consent to the subordination of the Severance Lease to any mortgage of the fee interest in the Property; and
(s) The execution and delivery of this Instrument is permitted under the Severance Lease and Borrower has complied with any appropriate and/or required consents or notices in order to encumber its Severance Leasehold Estate.
(t) The Borrower shall maintain the insurance as required by the Severance Sublease covering the Property as required by paragraph 5 hereof for the benefit of Borrower and Lender (and such other persons required by the Lease Agreement). Borrower will give prompt notice to Lender of termination of or interruption in such coverage and, in that event, will provide replacement insurance as required by the Severance Sublease and paragraph 5 hereof for the benefit of Borrower and Lender (and such other persons required by the Lease Agreement).
40 .11 COUNTERPARTS. This Instrument may be executed in any number of duplicate originals and each duplicate original shall be deemed to be an original.
40 .12 WRAP-AROUND MORTGAGE.
(a) The Secured Obligations wrap-around and include the indebtedness secured by that certain Mortgage, Assignment of Rents, Security Agreement and Fixture Filing made by Borrower in favor of 620 EIGHTH LENDER NYT (NY) LIMITED PARTNERSHIP and intended to be recorded with the Office of the City Register, New York County prior to the recording of this Instrument, which mortgage is a lien upon the Property (the Underlying Mortgage ) securing a note of even date (the Underlying Note ) in the original principal amount of ONE HUNDRED SEVENTY FIVE MILLION AND 00/100 DOLLARS ($175,000,000.00). The lien of this Instrument is junior and subordinate to the lien of the Underlying Mortgage, as the same may be amended, extended, supplemented or modified from time to time. Paragraph 31(d) of the Lease Agreement shall apply with respect to any rights or obligations of Borrower with respect to payments made by Borrower to the holder of the Underlying Note and the Underlying Mortgage.
(b) The Mortgagee, by its execution of this Instrument hereby agrees to apply the applicable portion of the payments received from the Borrower pursuant to the terms of the Lease Agreement towards payment of any applicable sums payable and due in accordance with the terms of the Underlying Note, as same may be amended, restated, modified or supplemented from time to time.
(c) Upon Lenders request, Borrower agrees to separate the indebtedness secured by this Instrument (including, but not limited to, severing and/or splitting this Instrument into one or more liens) so that the Secured Obligations no longer include the indebtedness secured by the Underlying Mortgage (i.e, de-wrapping the lien of this Instrument from the lien of the Underlying Mortgage) and, in connection therewith, Borrower shall deliver to Lender an affidavit (pursuant to Section 255 of the New York Real Property Law or any other applicable law of the State of New York) and such other documents and instruments as Lender may reasonably request, provided, however, that (i) the maximum principal indebtedness secured by this Instrument following such event shall not in the aggregate exceed the difference between (x) the original maximum principal indebtedness secured by this Instrument as of the date
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hereof and (y) the original maximum principal indebtedness secured by the Underlying Mortgage as of the date hereof (which such difference equals $75,000,000.00), (ii) such agreements do not increase the liabilities and obligations of Borrower under any of the Loan Document nor diminish the Borrowers rights under any of the Loan Document, other than to a deminimus extent, and (iii) Borrower shall pay all of Lenders costs incurred as a result of this subparagraph (b) to the extent provided in Section 31(a)(ii) of the Lease.
40 .13 RECOGNIZED MORTGAGE. Notwithstanding anything herein to the contrary, (A) insurance proceeds/condemnation awards with respect to the Property shall not be disposed or applied in a manner inconsistent with the terms of the Severance Lease; (B) Lender shall provide written notice to 42DP of any defaults under this Instrument in accordance with Paragraph 31(c) of the Severance Lease and shall permit 42DP the right to cure any such default and upon such cure 42DP shall be subrogated to the rights of the Lender to the extent of such cure; (C) this Instrument shall not be modified, amended, extended or consolidated without delivering a copy thereof to 42DP; (D) this Instrument shall not extend to, affect, or be a lien or encumbrance upon, the estate and interest of 42DP in the Demised Premises or the Common Elements (as such terms are defined in the Severance Lease), in the Severance Lease or any part thereof; and (E) this Instrument shall at all times be subject and subordinate to (i) the Severance Lease, and (ii) the Condominium Documents and to the Board of Managers Liens, the NYTC Board of Managers Liens and the FC Board of Managers Liens (as such terms are defined in the Condominium Documents); and (F) the Lender (and its successors and assigns) will take title to the Property subject to the Condominium Documents.
40 .14 ASSIGNMENT.
(a) In consideration of the making of the Loan by Lender to the Borrower and for other good and valuable consideration, receipt and sufficiency of which hereby are acknowledged, effective immediately after the recording of this Instrument, automatically and without further action by ESDC, ESDC shall and does hereby resign as co-mortgagee hereunder and assign unto Lender, all of ESDCs right, title and interest under this Instrument as co-mortgagee, such assignment being made without recourse, representation or warranty by ESDC, in any case or event or for any purpose whatsoever.
(b) By executing this Instrument, effective immediately after the recording of this Instrument, automatically and without further action by Lender, (i) Lender consents to and accepts ESDCs resignation pursuant to this paragraph 40.14 , (ii) Lender accepts the assignment by ESDC of all of ESDCs right, title and interest under this Instrument as co-mortgagee hereunder and (iii) Lender, as successor mortgagee, does assume and agree to be bound by all of the terms and conditions of this Instrument, and all of the obligations under this Instrument applicable to it in such capacity as mortgagee hereunder.
(c) The foregoing assignment and assumption shall be and is self-executing, effective immediately after the recording of this Instrument, automatically and without more, and no further act shall be or is required by any of the parties to this Instrument to effectuate the foregoing assignment and assumption. In confirmation of the foregoing, the parties shall execute a separate assignment of this Instrument, which is intended to be recorded in the City Registers Office, after the recording of this Instrument.
(d) The Borrower acknowledges that ESDC is entering into this Instrument as co-mortgagee solely as an accommodation to the Borrower and Lender and that ESDC shall have
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absolutely no obligations, responsibilities or liabilities hereunder whatsoever to the Borrower, the Lender and/or any third parties other than to record this Instrument in the City Registers Office.
(e) Borrower indemnifies, defends and holds ESDC and Mortgagee harmless from and against any and all claims, losses, damages, costs, expenses, suits and demands, including without limitation, reasonable attorneys fees, court costs and disbursements, arising from or relating to ESDCs acting as co-mortgagee hereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, Borrower, Lender and ESDC have executed this Instrument or has caused the same to be executed by its representatives thereunto duly authorized.
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On the day of March, in the year 2009, before me, the undersigned, personally appeared Kenneth A. Richieri, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me he/she/they executed the same in his/her/their/ capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
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On the day of March, in the year 2009, before me, the undersigned, personally appeared Jason E. Fox, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me he/she/they executed the same in his/her/their/ capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
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NEW
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On the day of March, in the year 2009, before me, the undersigned, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me he/she/they executed the same in his/her/their/ capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
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Exhibit A
Property 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 Registers 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.
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SCHEDULE OF UNITS
UNIT DESIGNATION |
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TAX LOT |
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PERCENTAGE INTEREST
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0-A |
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1001 |
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0.6627 |
% |
1- A |
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1003 |
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2.0132 |
% |
1-E |
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1007 |
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0.0691 |
% |
2-A |
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1009 |
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4.7805 |
% |
3-A |
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1010 |
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4.7579 |
% |
4-A |
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1011 |
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4.5636 |
% |
5-A |
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1012 |
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1.6352 |
% |
6-A |
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1013 |
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1.7325 |
% |
7-A |
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1014 |
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1.7325 |
% |
8-A |
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1015 |
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1.7325 |
% |
9-A |
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1016 |
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1.7325 |
% |
10-A |
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1017 |
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1.7325 |
% |
11-A |
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1018 |
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1.7325 |
% |
12-A |
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1019 |
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1.7325 |
% |
13-A |
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1020 |
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1.7325 |
% |
14-A |
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1021 |
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1.7440 |
% |
15-A |
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1022 |
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1.3998 |
% |
16-A |
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1023 |
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1.7484 |
% |
17-A |
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1024 |
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1.7207 |
% |
18-A |
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1025 |
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1.7711 |
% |
19-A |
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1026 |
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1.7711 |
% |
20-A |
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1027 |
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1.7711 |
% |
28-A |
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1035 |
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0.4446 |
% |
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Exhibit B
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 NYTBs 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 Borrower 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 Borrower 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 Borrower 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 ).
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EXHIBIT O
WRAP MORTGAGE AFFIDAVITS
AFFIDAVIT PURSUANT TO SECTION 255
OF THE TAX LAW OF THE STATE OF NEW YORK
STATE OF NEW YORK |
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I, Kenneth A. Richieri, being duly sworn, depose and say under oath pursuant to Section 255 of the Tax Law of the State of New York that:
1. I have a business address of an office at c/o The New York Times Company, 620 Eighth Avenue, New York, New York 10018, and that I am a citizen of the United States of America and that I am over 21 years of age.
2. I am a Manager of NYT REAL ESTATE COMPANY LLC, a New York limited liability company, having an address at c/o The New York Times Company, 620 Eighth Avenue, New York, New York 10018 (the Company ), and that I am familiar with the facts set forth herein.
3. 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership (the Lender ), is the holder of and mortgagee under the mortgages more particularly described in Schedule 1 attached hereto (collectively, the Mortgage ) covering certain premises located at 620-628 8th Avenue, 263-267 and 241-261 West 40th Street, 242-244 West 41st Street, 231-235 West 40th Street, 248-256, 260-262 and 268 West 41st Street, 634 and 630-632 8th Avenue, New York, New York.
4. The Company and Lender executed that certain Amendment to Wrap-Around Mortgage, Security Agreement and Fixture Filing dated as of March , 2009 and to be recorded simultaneously herewith (the Modification Agreement ).
5. No re-loans of re-advances have become secured under the Mortgage to the date hereof and the Modification Agreement does not create nor secure any new or further indebtedness or obligation.
WHEREOF, I respectfully request that the Modification Agreement tendered herewith for recording be declared exempt from taxation pursuant to Section 255 of Article 11 of the Tax Law of the State of New York.
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IN WITNESS WHEREOF, the undersigned has executed this Affidavit as of the day of March, 2009.
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SCHEDULE 1
Description of Mortgage(s)
Wrap-Around Mortgage, Security Agreement and Fixture Filing made on March , 2009 by the Company to New York State Urban Development Corporation, D/B/A/ Empire State Development Corporation, a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, as co- mortgagee (ESDC) and Lender, as co-mortgagee, and intended to be recorded in the Office of the Register The City of New York, as assigned by Assignment of Wrap-Around Mortgage, Security Agreement and Fixture Filing made on March , 2009 by ESDC to Lender and intended to be recorded in the Office of the Register The City of New York.
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EXHIBIT P
NYC TRANSIT AUTHORITY ESTOPPEL
February , 2009
The New York Times Building LLC
620 Eighth Avenue
New York, New York 10018
NYT REAL ESTATE COMPANY LLC
620 Eighth Avenue
New York, New York 10018
620 EIGHTH NYT (NY) LIMITED PARTNERSHIP
do W. P. Carey & Co. LLC, 50 Rockefeller Plaza
New York, New York 10020
Re: Estoppel Certificate
To Whom It May Concern:
Reference is made to the Agreement dated as of December 12, 2001 (the Agreement) by and among The New York Times Building LLC (Owner or Borrower), The New York City Transit Authority (Authority), 42 nd St. Development Project, Inc. and the New York City Economic Development Corporation. All initially capitalized terms that are defined in the Agreement and used but not defined herein shall have the meanings set forth for such terms in the Agreement.
The Authority certifies pursuant to Article Twenty-Sixth of the Agreement that as of this date:
1. The Agreement is unmodified and is in full force and effect.
2. No notice of default or notice of termination of the Agreement has been served on Owner by the Authority.
3. To the Authoritys knowledge, no default upon the part of Owner exists under the Agreement.
Very truly yours,
NEW YORK CITY TRANSIT AUTHORITY
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EXHIBIT Q
SUBORDINATION OF MANAGEMENT AGREEMENT
ASSIGNMENT OF MANAGEMENT AGREEMENT
AND CONSENT AND SUBORDINATION OF MANAGER
THIS ASSIGNMENT OF MANAGEMENT AGREEMENT AND CONSENT AND SUBORDINATION OF MANAGER (as the same may from time to time hereafter be modified, supplemented or amended, the Assignment ) is made as of March , 2009, by and among NYT REAL ESTATE COMPANY LLC, a New York limited liability company, having an address at c/o The New York Times Company, 620 Eighth Avenue, New York, New York, 10018 ( Tenant ), and FIRST NEW YORK PARTNERS MANAGEMENT, LLC, a New York limited liability company, having an address at One MetroTech Center North, Brooklyn, New York, 11201 (together with its permitted successors and assigns, Manager ), for the benefit of 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership, having an office address at c/o W.P. Carey & Co. LLC, 50 Rockefeller Plaza, 2 nd Floor, New York, New York, 10020 ( Landlord ).
RECITALS
A. Landlord has agreed to enter into a sale-leaseback financing transaction with Tenant (the Transaction ), with Landlords collateral being evidenced by, among other things, all of which are dated as of the date hereof, that certain Lease Agreement (the Lease ), that certain Assignment and Assumption of Sublease (the Assumption ), and that certain Wrap-Around Mortgage, Assignment of Rents, Security Agreement and Fixture Filing (as modified, amended, supplemented, extended or consolidated, and any documents(s) issued in exchange therefor or in replacement thereof, the Security Instrument ), which Security Instrument grants a lien on the real property described in Exhibit A attached to this Assignment and the improvements located thereon (collectively, the Property ). The Security Instrument and the other documents executed in connection with the Transaction, including this Assignment, collectively are referred to as the Transaction Documents . Notwithstanding the foregoing, the term Transaction Documents will not include any certificate and indemnity agreement regarding hazardous substances entered into by Tenant in connection with the Transaction.
B. Pursuant to that certain NYTC Facility Maintenance and Management Agreement dated January 4, 2007, by and between Tenant and Manager, as amended by (i) that certain Amendment to an Agreement dated as of May 1, 2008, and (ii) that certain side letter agreement dated as of May 15, 2008 (collectively, and as the same may be amended or modified further with Landlords consent as provided herein, the Existing Management Agreement ), Tenant has employed Manager to manage, supervise and maintain the Property and Manager is entitled to certain management fees (the Management Fees ) thereunder.
C. Landlord requires as a condition to entering into the Transaction that Tenant assign Tenants interest in the Management Agreement to Landlord and Manager subordinate
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the Management Agreement and its interest in the Management Fees, in lien and payment, to the Security Instrument as set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto, intending to be bound legally, agree as follows:
1. Assignment of Management Agreement . Tenant hereby absolutely and unconditionally assigns to Landlord all of Tenants right, title and interest in, to and under the Existing Management Agreement and all present and future agreements relating to the management or operation of the Property (collectively, the Management Agreement ). This Assignment constitutes a present and absolute assignment and not an assignment for security purposes only. Notwithstanding the foregoing, Landlord hereby grants Tenant a license to exercise all rights of Tenant under the Management Agreement until the occurrence of an Event of Default under the Lease and/or the Security Instrument. Upon the occurrence and during the continuance of any Event of Default, the foregoing license shall be deemed revoked immediately.
2. Tenants Covenants . Tenant represents, warrants and covenants to and with Landlord that: (a) Tenant has not assigned and will not assign any of its right, title or interest in, to or under the Management Agreement to anyone other than Landlord; (b) Tenants right, title and interest in, to and under the Management Agreement is not subject to any claim, setoff, lien, deduction or encumbrance of any nature (other than the encumbrances created by the Transaction Documents); (c) except for the Existing Management Agreement, Tenant shall not enter into any Management Agreement without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed; (d) Tenant shall deliver to Landlord a complete copy of each Management Agreement, promptly following its execution; (e) Tenant shall promptly obtain and deliver to Landlord such consents, subordinations and agreements of Manager, in form and content reasonably satisfactory to Landlord, as Landlord may request from time to time; (f) Tenant shall give prompt notice to Landlord of any notice or information that Tenant receives that indicates that Manager is terminating or assigning its Management Agreement or that Manager otherwise is discontinuing its management of the Property; (g) Tenant shall not make any changes in or amendments to any Management Agreement without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed; (h) Tenant shall not tender or accept a surrender or cancellation of the Management Agreement without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed; (i) Tenant has full power and authority to make this Assignment; (j) Tenant shall make all required payments and otherwise perform its obligations under the Management Agreement; (k) Tenant shall give immediate notice to Landlord of any notice of default served by or upon Tenant with respect to the obligations under the Management Agreement; and (l) at its sole cost and expense, Tenant shall use commercially reasonable efforts to
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enforce or secure the performance of each and every material obligation of Manager to be kept or performed under the Management Agreement.
3. Landlords Right to Replace Manage r .
(a) Right to Replace After Event of Default .
(i) At any time after the occurrence and during the continuance of an Event of Default, in addition to all the rights and remedies to which Landlord is entitled under the Security Instrument and the other Transaction Documents, Landlord, at the option of Landlord exercised by written notice to Tenant and the then-current Manager, may: (A) require that all rents, security deposits, issues, revenues, income, penalties, proceeds and profits of the Property collected by Manager pursuant to the Management Agreement be applied in accordance with Landlords written directions to Manager or payable to Landlord upon demand, and Manager shall be entitled to rely conclusively on any such notice that Manager believes, in good faith, to be from Landlord, without any further inquiry and without any liability to Tenant; (B) terminate the Management Agreement in accordance with Section 10 of the Existing Management Agreement, and require Manager (at no material cost to Manager) to transfer its responsibility for the management of the Property to any other person or entity selected by Landlord in Landlords sole and absolute discretion; or (C) require Manager to continue performance under its Management Agreement. This Assignment shall constitute a direction to and full authority to the Manager under the Management Agreement to act at Landlords written direction and otherwise perform on Landlords behalf under the Management Agreement, without proof of the Event of Default or otherwise and without liability therefor to Tenant. All such notices shall be effective immediately upon delivery unless otherwise specified.
(ii) If Landlord shall exercise its right to require Manager to continue performance under the Management Agreement, such Manager will perform the obligations specified to be performed by it under the Management Agreement for the benefit and at the written direction of Landlord, notwithstanding any counterclaim, right of set-off, claim for additional payment, defense or like right of Manager against Tenant or Tenants default (including non-payment) under, or breach of, the Management Agreement; provided, however, that Manager receives the compensation provided for in the Management Agreement, as applicable, for services performed for Landlord after notice from Landlord that it is exercising its rights (and Landlord shall not be liable for any amounts due or arising from activities occurring prior to the date that Landlord delivers said notice).
(iii) If Landlord shall exercise its right to require Manager to continue performance under the Management Agreement, Landlord shall have the right, at any time thereafter, to terminate the Management Agreement in accordance with Section 10 of the Existing Management Agreement.
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(iv) Landlord shall not be liable for any action or omission of any owner of the Property (other than Landlord, if it is the owner), bound by any amendment or modification of the Management Agreement made without Landlords prior written consent or subject to any counterclaim or claims which Manager might or is entitled to assert against Tenant.
(v) If Landlord succeeds to the interests of Tenant, and in the event Landlord exercises its option to terminate the Management Agreement, except as provided for in Section 10 of the Existing Management Agreement, no fee, charge, penalty or other compensation shall be due and payable by Landlord to Manager as a result thereof.
(vi) In the event and during the continuance of an Event of Default, Landlord may, but shall not be obligated to, assume any or all of the obligations of Tenant under the Management Agreement (first arising from and after the date of Landlords election) and/or exercise the rights, benefits and privileges of Tenant under the Management Agreement. Manager shall be entitled to rely conclusively upon any written notice that Manager believes, in good faith, to be from Landlord that Landlord has assumed all of the rights and obligations of Tenant (first arising from and after the date of Landlords election) under the Management Agreement without any inquiry into whether an Event of Default exists and without any liability to Tenant. Under no circumstances shall Landlord be deemed by any party to have assumed Tenants rights and obligations under the Management Agreement unless and until such written notice is delivered to Manager in accordance with the foregoing provision.
(vii) Landlord shall have the right at any time, but shall have no obligation, to take in its name or in the name of Tenant, or otherwise, such action as Landlord may at any time or from time to time determine to be reasonably necessary to cure any default under the Management Agreement or to protect the rights of Tenant or Landlord thereunder. Landlord shall incur no liability to Tenant if any action taken by Landlord or on Landlords behalf in good faith pursuant to this Assignment shall prove to be in whole or in part inadequate or invalid. Tenant hereby agrees to protect, defend, indemnify and hold Landlord and its affiliated entities free and harmless for, from and against any and all loss, cost, liability or expense (including, but not limited to, attorneys, paralegals and accountants fees) to which Landlord may be exposed, or that Landlord may incur, in exercising any of its rights under this Assignment, unless caused by the intentional misconduct or negligence of Landlord.
(viii) Tenant hereby irrevocably constitutes and appoints Landlord its true and lawful attorney-in-fact in Tenants name or in Landlords name, or otherwise, to, from and after the occurrence and during the continuance of an Event of Default by Tenant, to enforce all of the rights of Tenant under the Management Agreement. It hereby is recognized that the power of attorney herein granted is coupled with an interest and shall not be revocable so long as any sums are outstanding under the Security Instrument.
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(ix) Notwithstanding anything to the contrary contained herein, Landlord shall have no right under this Assignment to assume the Management Agreement or to exercise any rights, benefits or privileges of Tenant under the Management Agreement until an Event of Default occurs under the Transaction Documents and only for so long as an Event of Default shall be continuing.
4. Consent, Covenants and Agreements of Manager . Manager hereby acknowledges and consents to this Assignment and agrees that Manager will act in conformity with the provisions of this Assignment and Landlords rights hereunder or otherwise related to the Management Agreement. In the event that the responsibility for the management of the Property is transferred from Manager in accordance with the provisions hereof, Manager shall, and hereby agrees to, cooperate fully (at no material cost to Manager) in transferring its responsibility to a new management company and effectuate such transfer no later than 30 days after the effective date of any termination of the Management Agreement in accordance with this Assignment and/or Section 10 of the Existing Management Agreement. Further, Manager hereby agrees: (a) not to contest or impede the exercise by Landlord of any right it has under or in connection with this Assignment or the other Transaction Documents; (b) that Manager shall, in the manner provided for in this Assignment, give at least 30 days prior written notice to Landlord of its intention to terminate the Management Agreement or otherwise discontinue its management of the Property; and (c) Manager shall give immediate notice to Landlord of any notice of default served by or upon Manager with respect to the obligations under the Existing Management Agreement. Manager further agrees that no modifications or amendments to the Existing Management Agreement shall be binding upon Landlord without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. If Manager is an affiliate of Tenant, Manager agrees that it will not terminate the Existing Management Agreement and will not cease to perform its services thereunder for any reason, including, but not limited to, Tenants failure to make any payments to Manager or other breach or default, without first obtaining the prior written consent of Landlord.
5. Subordination of Management Fees . Manager agrees that the liens of the Security Instrument and the other Transaction Documents, and Landlords right to payment under same, shall be superior to and have priority over the Existing Management Agreement, as well as any claim, security interest or right to payment of Manager arising out of or in any way connected with its services performed under the Existing Management Agreement or the Management Fees. In furtherance of the foregoing, Manager hereby fully and completely subordinates to the liens of the Security Instrument and the other Transaction Documents, and to Landlords right to payment under the Security Instrument and the other Transaction Documents, the following: (a) the Existing Management Agreement; (b) any such claim or security interest Manager may now or hereafter have against the Property and/or the rents, issues, profits and income therefrom; and (c) any right to payment of the Management Fees
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arising out of or in any way connected with its services performed under the Existing Management Agreement.
6. Obligations of Landlord . Manager expressly acknowledges that, except as otherwise provided herein, by accepting this Assignment or by exercising any of its rights under this Assignment, Landlord assumes no obligations or liabilities of Tenant under the Existing Management Agreement and that Landlord shall have no obligation to Manager to exercise its rights under this Assignment or to declare a default under this Assignment, the Security Instrument or any of the other Transaction Documents, but that the right and option to exercise such rights or to declare a default rests in the sole and absolute discretion of Landlord.
7. Tenants Obligations under the Management Agreement; Indemnification . Neither this Assignment nor any action or actions on the part of Landlord (including, without limitation, any assumption by Landlord of the rights and obligations under the Management Agreement pursuant to the provisions of this Assignment) shall relieve Tenant of any obligation under the Management Agreement and Tenant shall continue to be primarily liable for all obligations thereunder. Tenant hereby agrees to perform each and all of its obligations under the Management Agreement. Tenant hereby agrees to protect, defend, indemnify and hold Landlord free and harmless for, from and against any and all loss, cost, liability or expense (including, but not limited to, reasonable attorneys fees, paralegals fees and accountants fees) resulting from any failure of Tenant to so perform under the Management Agreement.
8. New Manager . If (a) Manager is replaced with a new manager (the New Manager ) in accordance with the terms and provisions of this Assignment, and (b) Tenant shall have entered into a new management agreement with New Manager (the New Management Agreement ) upon terms reasonably acceptable to Landlord in all respects, then Tenant shall execute, and shall cause New Manager to execute, an agreement assigning the New Management Agreement to Landlord, subordinating the New Management Agreement and the terms thereof, including but not limited to New Managers right to payment of management fees, and containing certain other agreements of Tenant and New Manager, such agreement to be substantially in the form of this Assignment.
9. Estoppel . Tenant and Manager represent and warrant that: (a) the Existing Management Agreement attached hereto as Exhibit B is in full force and effect and has not been modified, amended or assigned; (b) to the knowledge of the representing party, neither Manager nor Tenant is in default under any of the terms, covenants or provisions of the Existing Management Agreement and neither Manager nor Tenant knows of any event which, but for the passage of time or the giving of notice or both, would constitute an event of default under the Existing Management Agreement; (c) neither Manager nor Tenant has commenced any action or given or received any notice for the purpose of terminating the Existing Management Agreement; (d) the Existing Management Agreement has been executed by the
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duly authorized officers of Tenant and Manager, respectively; and (e) the Existing Management Agreement is a valid, binding and enforceable obligation of Manager and Tenant, respectively, subject to bankruptcy, insolvency, reorganization and similar laws affecting creditors rights generally and to general principles of equity.
10. Miscellaneous .
(a) Successors and Assigns . This Assignment shall be binding upon and inure to the benefit of Landlord, Tenant and Manager and their respective successors and assigns. The foregoing sentence shall not be construed to permit Tenant to assign the Transaction except as otherwise permitted under the Security Instrument.
(b) Further Assurances . Each of Tenant and Manager covenants and agrees to make, execute and deliver all such further or additional instruments as may be necessary to satisfy the intents and purposes hereof and to perfect this Assignment.
(c) Waivers; Amendments . Any term, covenant, agreement or condition of this Assignment may be amended or waived if such amendment or waiver is in writing and is signed by Tenant, Manager and Landlord. No failure or delay by Landlord in exercising any right hereunder shall operate as a waiver thereof or of any other right nor shall any single or partial exercise of any such right preclude any other further exercise thereof or of any other right. Unless otherwise specified in any such waiver or consent, a waiver or consent given hereunder shall be effective only in the specific instance and for the specific purpose for which given.
(d) Notices . Any and all notices given in connection with this Assignment shall be deemed adequately given only if in writing and addressed to the party for whom such notices are intended at the addresses set forth below. All notices shall be sent by personal delivery, Federal Express or other nationally-recognized overnight messenger service, or first class registered or certified mail, postage prepaid, return receipt requested. A written notice shall be deemed to have been given to the recipient party on the earlier of: (a) the date it is delivered to the address required by this Assignment; (b) the date delivery was refused at the address required by this Assignment; or (c) with respect to notices sent by mail, upon the first to occur of receipt or the expiration of three days after deposit in the United States Postal Service mail. Any and all notices referred to in this Assignment, or which either party desires to give to the other, in the case of notices given to Tenant or Manager, shall be addressed as set forth in the Management Agreement. Any notice sent to Landlord hereunder also should be sent simultaneously and in like fashion to: Joseph M. Marger, Esq., Reed Smith LLP, 599 Lexington Avenue, 29 th Floor, New York, New York, 10022.
Any party hereto may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent.
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(e) Severability . If any provision or obligation under this Assignment shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall be deemed severed from this Assignment and the validity, legality and enforceability of the remaining provisions or obligations shall remain in full force as though the invalid, illegal or unenforceable provision had never been a part of this Assignment.
(f) Cumulative Rights . The rights, powers and remedies of Landlord under this Assignment shall be in addition to all rights, powers and remedies given to Landlord under any of the Transaction Documents, all of which rights, powers and remedies shall be cumulative and may be exercised successively or concurrently without impairing Landlords rights hereunder.
(g) Governing Law . This Assignment shall be governed, construed, applied and enforced in accordance with the laws of the State of New York, without regard to its conflicts of law principles.
(h) Counterparts . This Assignment may be executed in counterparts, each of which shall be deemed an original instrument and all of which when taken together shall constitute but one agreement.
(i) Consent to Jurisdiction . Each of Tenant, Landlord (by accepting this Assignment) and Manager irrevocably submits to the jurisdiction of any state or federal court sitting in the state where the Property is located over any suit, action, or proceeding brought by Landlord to exercise any of its rights under this Assignment. Each of Tenant, Landlord (by accepting this Assignment) and Manager irrevocably waives, to the fullest extent permitted by law, any objection that Manager, Landlord (by accepting this Assignment) or Tenant may now or hereafter have to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
11. WAIVER OF JURY TRIAL . LANDLORD, MANAGER AND TENANT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THE TRANSACTION, THIS ASSIGNMENT OR ANY OTHER TRANSACTION DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF LANDLORD, MANAGER OR TENANT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LANDLORD TO MAKE THE TRANSACTION TO TENANT.
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12. Existing Manager . The parties to this Agreement understand and agree that the Manager is entering into this Assignment only in connection with the Existing Management Agreement. Accordingly, and notwithstanding anything to the contrary set forth in this Assignment or otherwise, the Manager shall have absolutely no obligations or liabilities whatsoever under this Assignment or otherwise to Landlord and/or Tenant with respect to any Management Agreement other than the Existing Management Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Assignment as of the date and year first written above.
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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 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 Surveyors 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 Registers 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;
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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.
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SCHEDULE OF UNITS
UNIT DESIGNATION |
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TAX LOT |
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PERCENTAGE INTEREST
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0-A |
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1001 |
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0.6627 |
% |
1- A |
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1003 |
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2.0132 |
% |
1-E |
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1007 |
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0.0691 |
% |
2-A |
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1009 |
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4.7805 |
% |
3-A |
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1010 |
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4.7579 |
% |
4-A |
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1011 |
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4.5636 |
% |
5-A |
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1012 |
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1.6352 |
% |
6-A |
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1013 |
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1.7325 |
% |
7-A |
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1014 |
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1.7325 |
% |
8-A |
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1015 |
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1.7325 |
% |
9-A |
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1016 |
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1.7325 |
% |
10-A |
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1017 |
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1.7325 |
% |
11-A |
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1018 |
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1.7325 |
% |
12-A |
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1019 |
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1.7325 |
% |
13-A |
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1020 |
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1.7325 |
% |
14-A |
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1021 |
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1.7440 |
% |
15-A |
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1022 |
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1.3998 |
% |
16-A |
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1023 |
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1.7484 |
% |
17-A |
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1024 |
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1.7207 |
% |
18-A |
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1025 |
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1.7711 |
% |
19-A |
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1026 |
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1.7711 |
% |
20-A |
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1027 |
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1.7711 |
% |
28-A |
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1035 |
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0.4446 |
% |
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EXHIBIT R
ASSIGNMENT AND ASSUMPTION OF MANAGEMENT AGREEMENT
This ASSIGNMENT AND ASSUMPTION OF MANAGEMENT AGREEMENT (the Assignment ) dated as of March , 2009 (the Effective Date ) by and between NYT REAL ESTATE COMPANY LLC ( Assignor ), a New York limited liability company, having an office c/o The New York Times Company, 620 Eighth Avenue, New York, New York 10018, and NYT BUILDING LEASING COMPANY LLC ( Assignee ), a New York limited liability company, having an office c/o The New York Times Company, 620 Eighth Avenue, New York, New York 10018.
W I T N E S S E T H :
WHEREAS, Assignor and First New York Partners Management, LLC, a New York limited liability company ( First NY ), have entered into that certain Management Agreement, between Assignor, as owner, and First NY, as agent, dated as of April 4, 2008 (the Management Agreement ) with respect to the management, supervision and maintenance of approximately 185,502 square feet of office space located on Floors 22 through 27 of the building located at 620 Eighth Avenue, New York, New York;
WHEREAS, Assignor wishes to assign all of its right, title and interest in and to the Management Agreement to Assignee, and Assignee wishes to assume all such right, title and interest.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby covenant and agree as follows:
1. Capitalized terms used herein without definition shall have the respective meanings ascribed thereto in the Management Agreement. References herein to any document or instrument shall refer to the same as it may be amended, modified, supplemented, extended, renewed or assigned.
2. Assignor hereby assigns, grants, bargains, sells and transfers all of its right, title and interest in and to the Management Agreement, together with any and all amendments, extensions and renewals thereof, and together with all rights and obligations accrued or to accrue under said Management Agreement to Assignee and its successors and assigns, TO HAVE AND TO HOLD the same unto Assignee, its permitted successors and assigns for all the rest of the term of the Management Agreement.
3. Assignee hereby assumes the duties and obligations and agrees to perform and comply with all of the covenants and conditions of the Management Agreement to be performed or complied with by the Owner thereunder, as if Assignee had originally executed the Management Agreement as the Owner thereunder.
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4. Assignee indemnifies Assignor from any and all loss, cost, damage, liability or expense (including, without limitation, reasonable attorneys fees, court costs and disbursements) which may be imposed on the Assignor by reason of any failure by Assignee to perform any of the obligations under the Management Agreement arising from and after the Effective Date.
5. 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.
6. By affixing its signature to this Assignment, FIRST NY hereby: (i) consents to this Assignment; (ii) agrees to forever release Assignor from any and all liability accruing under the Management Agreement from and after the date hereof; and (iii) represents that all monies owing to First NY under the Management Agreement up to the date hereof have been paid in full and that to First NYs knowledge there exists no default under the Management Agreement on the part of Assignor, or event which with the giving of notice or the passage of time would constitute a default thereunder.
7. Assignor (i) agrees (for itself and its successors and assigns) to forever release First NY from any and all liability accruing under the Management Agreement prior to the date hereof and (ii) represents that all monies owing by Assignor to First NY under the Management Agreement up to the date hereof have been paid in full and that to Assignors knowledge there exists no default under the Management Agreement on the part of Assignor or First NY, or event which with the giving of notice or the passage of time would constitute a default thereunder.
8. This Assignment shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns.
9. 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 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.
10. This Assignment shall be governed by, and construed in accordance with the laws of the State of New York.
11. This Assignment may be executed in counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have signed and delivered this Assignment as of the date first set above.
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ASSIGNOR: |
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NYT REAL ESTATE COMPANY LLC, |
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a New York limited liability company |
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By: |
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ASSIGNEE: |
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NYT BUILDING LEASING COMPANY |
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LLC , a New York limited liability company |
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FIRST NY sets forth its signature below only to acknowledge its agreement to the terms of paragraph 6 of this Assignment.
FIRST NEW YORK PARTNERS MANAGEMENT, LLC,
a New York limited liability company
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3
EXECUTION COPY
EXHIBIT S
SELLER CERTIFICATE
SELLERS/LESSEES CERTIFICATE
This Sellers/Lessees Certificate of NYT REAL ESTATE COMPANY LLC, a New York limited liability company ( Seller ), is being delivered on this day of March, 2009, to 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership ( Purchaser ), in connection with the sale by Seller to Purchaser and the leasing by Purchaser to Seller of Sellers interest in that certain leasehold condominium situate in New York, New York, as more particularly described on Schedule 1 attached hereto and made a part hereof (the Property ).
Seller hereby makes the following representations and warranties to Purchaser with the understanding that each such representation and warranty is material and is being relied upon by Purchaser:
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Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the PSA.
The representations and warranties made by Seller in Section A hereof shall be deemed to have been made again at and as of the Closing and, as of the Closing, shall be true and correct in all respects.
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Seller shall pay, protect, defend, indemnify and hold harmless Purchaser, its successors and assigns, from and against any and all liabilities, losses, damages, costs, expenses (including, without limitation, reasonable attorneys fees and expenses), causes of action, suits, claims, demands or judgments of any nature whatsoever howsoever caused should any representation or warranty set forth herein prove to have been untrue or inaccurate or arising from any breach by Seller of any representation or warranty set forth herein.
This Sellers/Lessees Certificate shall be for the benefit of Purchaser, its successors and assigns, and shall be binding upon Seller and each of its successors and assigns. The representations, warranties, covenants and indemnifications made by Seller in this Sellers/Lessees Certificate shall survive until repayment in full of the Monetary Obligations (as defined in the Lease) under the Lease.
F. Sellers Knowledge .
Purchaser expressly understands and agrees that the phrase to Sellers knowledge means a matter that David Thurm and/or Kenneth A. Richieri, each as officers of Seller, actually is aware of or received written notice of, provided that Seller represents that David Thurm is a Manager and Kenneth A. Richieri is a Manager, each of which are the officers of Seller most familiar with the Property and the condition and operation thereof.
The fact that the representations of Seller set forth in this Certificate may be limited to the best of Sellers knowledge shall not be deemed to modify or alter any provision of any Relevant Document requiring Seller to indemnify Purchaser.
Seller, within ten (10) days after written request, shall re-make, re-execute, re-deliver, and/or file or cause the same to be done, such corrected or replacement documents executed in connection with the transaction contemplated hereby ( Section 36(p) Documents ) as Purchaser may deem reasonably necessary in order to give effect to the rights expressly conferred on Purchaser pursuant to the Lease and other Relevant Documents, such that the documents for this transaction shall be an accurate reflection of the parties agreement thereunder provided. However, under no circumstances shall Sellers obligations and/or liabilities be increased by reason of the Section 36(p) Documents nor shall Sellers rights and/or benefits be decreased by reason of the Section 36(p) Documents.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
8
EXECUTION COPY
IN WITNESS WHEREOF, the Seller/Lessee duly executed this Sellers/Lessees Certificate on the date and year first above written.
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NYT REAL ESTATE COMPANY LLC , |
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a New York limited liability company |
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By: |
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Name: |
Kenneth A. Richieri |
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Title: |
Manager |
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9
SCHEDULE 1
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 Surveyors 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 Registers 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,
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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.
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SCHEDULE OF UNITS
UNIT DESIGNATION |
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TAX LOT |
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PERCENTAGE INTEREST
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0-A |
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1001 |
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0.6627 |
% |
1- A |
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1003 |
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2.0132 |
% |
1-E |
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1007 |
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0.0691 |
% |
2-A |
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1009 |
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4.7805 |
% |
3-A |
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1010 |
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4.7579 |
% |
4-A |
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1011 |
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4.5636 |
% |
5-A |
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1012 |
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1.6352 |
% |
6-A |
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1013 |
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1.7325 |
% |
7-A |
|
1014 |
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1.7325 |
% |
8-A |
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1015 |
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1.7325 |
% |
9-A |
|
1016 |
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1.7325 |
% |
10-A |
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1017 |
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1.7325 |
% |
11-A |
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1018 |
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1.7325 |
% |
12-A |
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1019 |
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1.7325 |
% |
13-A |
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1020 |
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1.7325 |
% |
14-A |
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1021 |
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1.7440 |
% |
15-A |
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1022 |
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1.3998 |
% |
16-A |
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1023 |
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1.7484 |
% |
17-A |
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1024 |
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1.7207 |
% |
18-A |
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1025 |
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1.7711 |
% |
19-A |
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1026 |
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1.7711 |
% |
20-A |
|
1027 |
|
1.7711 |
% |
28-A |
|
1035 |
|
0.4446 |
% |
12
EXECUTION COPY
EXHIBIT T
GUARANTOR CERTIFICATE
This Guarantors Certificate of THE NEW YORK TIMES COMPANY, a New York corporation ( NYTC ), and THE NEW YORK TIMES SALES COMPANY, a Massachusetts business trust ( NYT Sales ; collectively with NYTC, Guarantor ), is being delivered on this day of March, 2009, to 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership ( Landlord ), in connection with a certain Guaranty and Suretyship Agreement (the Guaranty ) of even date herewith given by Guarantor to Landlord in connection with the sale by NYC Real Estate Company LLC, a New York limited liability company ( Seller ), to Landlord and the leasing to Seller of Sellers interest in that certain leasehold condominium situate in New York, New York, as more particularly described on Schedule 1 attached hereto and made a part hereof (the Property ).
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(y) Financial Defaults . Neither Guarantor nor Seller currently is, or ever has been, in default under any credit agreement or in default with respect to any indebtedness having a principal balance of $5,000,000.00 or more.
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(z) Third-Party Rights . Except as disclosed in the Title Report, no entity or person holds any right of first offer, right of first refusal or any other right or option to purchase or occupy all or any portion of the Property.
(aa) Alterations . There currently are no on-going or planned alterations for any portion of the Property, except for a climbing deterrent system for a portion of the exterior of the Building, which work has not yet been commenced.
(bb) Subway Entrance . The diagram attached to Schedule 10 sets forth, in its entirety, that portion of the subway entrance that is connected to the Building for whose maintenance the Condominium is responsible. Furthermore, the work under that certain Site 8 Declaration of Design, Use and Operation by and between New York State Urban Development Corporation d/b/a Empire State Development Corporation and 42 nd St. Development Project, Inc. and dated December 21, 2001, is substantially completed.
(cc) Recognition . Guarantor hereby agrees that it shall recognize Landlord as a Recognized Mortgagee under the terms of Article 31 of the Severance Lease, with all of the rights and privileges thereof.
2. Guarantors Representations Pertaining to Seller . NYTC hereby represents and warrants to Landlord, its successors and assigns, with the understanding that each such representation and warranty is material and is being relied upon by Landlord, as follows:
(a) Seller is a limited liability company that is duly organized, validly existing and in good standing under the laws of New York. Sellers principal place of business is 620 Eighth Avenue, New York, New York, 10018. Seller is, and has been since its formation, in compliance with the terms of its articles of organization and its Operating Agreement.
(b) Neither the execution and delivery of the Relevant Documents nor performance of or compliance with the terms and conditions thereof will (i) violate any law, rule or regulation, (ii) conflict with or result in a breach of or a default under the articles of formation or Operating Agreement of Seller or any other agreement or instrument to which Seller is a party or by which it or any of its properties (now owned or hereafter acquired) may be subject or bound or (iii) result in the creation or imposition of any lien, charge, security interest or encumbrance upon any property (now owned or hereafter acquired) of Seller, except pursuant to the Relevant Documents.
(c) Seller has full power, authority and legal right (i) to sell its interest in the Property to Landlord, (ii) to execute and deliver that certain Landlord Mortgage (as defined in the Lease) as well as that certain Purchase and Sale Agreement ( PSA ) and that certain Lease Agreement ( Lease ) by and between Seller and Landlord of even date herewith for Sellers interest in the Property and (iii) to execute and deliver such other instruments, documents and agreements as may be necessary or appropriate to effect the foregoing transactions and to perform and observe the terms and conditions of each of the documents described above (such documents being collectively referred to as the Relevant Documents ).
(d) The Landlord Mortgage, the PSA, the Lease and all other documents executed by Seller that are to be delivered to Landlord at the Closing (i) are or at the time of the Closing will be duly authorized, executed and delivered by Seller, (ii) are or at the time of the Closing will be legal, valid and binding obligations of Seller enforceable against Seller in accordance with their terms, and (iii) do not and at the time of Closing will not conflict with or result in the breach of any judgment, decree, writ, injunction, order or award of any arbitrator, court or governmental authority binding upon Seller, or result in the breach of any
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term or provision of, or constitute a default, or result in the acceleration of any obligation under any loan agreement, indenture, financing agreement, or any other agreement or instrument of any kind to which Seller is a party or to which Seller or the Property is subject.
(e) Seller is not a foreign corporation, foreign partnership, foreign trust and/or foreign estate (as those terms are defined in the Internal Revenue Code of 1986, as amended and in the accompanying regulations), and Sellers U.S. employer identification number is 13-1102020.
(f) Neither Seller nor any member of Seller is a Specially Designated National or Blocked Person. As used herein, the term Specially Designated National or Blocked Person shall mean a person or entity (i) designated by the Department of Treasurys Office of Foreign Assets Control, or other governmental entity, from time to time as a specially designated national or blocked person or similar status, (ii) described in Section 1 of U.S. Executive Order 13224 issued on September 23, 2001, or (iii) otherwise identified by government or legal authority as a person or entity with whom Landlord or its affiliates are prohibited from transacting business.
(g) Seller has not commenced a voluntary case under Bankruptcy Law (hereinafter defined) nor has there been commenced against Seller an involuntary case under Bankruptcy Law, nor has Seller consented to the appointment of a Custodian (hereinafter defined) of it or for all or any substantial part of its property, nor has a court of competent jurisdiction entered an order or decree under any applicable Bankruptcy Law that is for relief against Seller or appoints a Custodian for Seller or for all or any substantial part of Sellers 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.
(h) Except for the approvals and consents listed on Schedule 3 (the Third Party Consents ), no authorizations, consents or approvals of or filings with any Governmental Authority or any other Person is required with respect to Seller for the execution and delivery of any Relevant Document and the performance of its obligations thereunder. Seller has obtained, or will have obtained prior to the Closing, all Third-Party Consents.
(i) Neither Guarantor nor Seller has received notice of any condemnation proceedings, other than New York State Urban Development Corp., Plaintiff, vs. 42 nd St. Development Project, Inc. et al., Defendants, Index No. 402727/02, which occurred in connection with the initial development and construction of the Building, either instituted or planned to be instituted, which would affect adversely either the use and operation of the Property for its present use or the value of the Property, nor has Guarantor or Seller received notice of any special assessment proceedings affecting the Property.
(j) Guarantor or Seller has delivered to Landlord true, correct and complete copies of each of the Severance Lease and the Condominium Declaration, including, in each case, all amendments and/or modifications thereto, in a velobound binder initialed by Seller and Landlord or their respective counsel simultaneously herewith. Each of the Severance Lease and the Condominium Declaration, as same have been amended or modified to date, is in full force and effect and neither Guarantor nor Seller has received notice from any party that Guarantor or Seller is in default under the Severance Lease or the Condominium Declaration, as the case may be.
(k) The list of warranties on Schedule 12 is a true, correct and complete list of all material warranties ( Warranties ) affecting the Property to which Guarantor,
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Seller or, to Guarantors knowledge, the Condominium Boards (or either of them) is a party. Guarantor or Seller has provided Landlord with a true and complete copy of each Warranty in a velobound binder initialed by Seller and Landlord or their respective counsel simultaneously herewith. Each Warranty is in full force and effect and is a legal, valid, binding and enforceable obligation of each of the parties thereto. None of the Warranties has been amended, modified or supplemented and no provision of any of the Warranties has been waived.
(l) The list of property management agreements on Schedule 13 is a true, correct and complete list of all property management agreements ( Property Management Agreements ) affecting the Property to which Guarantor, Seller or, to Guarantors knowledge, the Condominium Boards (or either of them) is a party. Guarantor or Seller has provided Landlord with a true and complete copy of each Property Management Agreement, as amended, if applicable, in a velobound binder initialed by Seller and Landlord or their respective counsel simultaneously herewith. Each Property Management Agreement is in full force and effect and is a legal, valid, binding and enforceable obligation of each of the parties thereto. No provision of any of the Property Management Agreements has been waived.
(m) Intentionally Omitted .
3. Bankruptcy Remoteness of Seller . Guarantor hereby acknowledges and agrees that Sellers assets shall not be consolidated with the assets of Guarantor or any other person or entity owning directly or indirectly an interest in Seller in the event of a bankruptcy or insolvency of Guarantor or any such person or entity.
4. Excess Site Acquisition Costs . Sellers proportionate share of the credit balance of the Excess Site Acquisition Costs (as defined in that certain Site 8 Land Acquisition and Development Agreement by and among New York State Urban Development Corporation d/b/a Empire State Development Corporation, 42 nd St. Development Project, Inc. and The New York Times Building LLC dated December 21, 2001) with respect to the Property, calculated on an accrual basis, is, as of March 1, 2009, $12,390,676.00, all of which Guarantor hereby covenants is assignable to Landlord.
5. Interpretation . All terms not otherwise defined herein shall have the meaning ascribed to them in the PSA.
6. Guarantors Knowledge . Landlord expressly understands and agrees that the phrase to Guarantors knowledge as used herein means a matter that (i) with respect to NYTC, David Thurm and/or Kenneth A. Richieri, each as officers of NYTC, actually is aware of or received written notice of, and (ii) with respect to NYT Sales, Kenneth A. Richieri, as President of NYT Sales, actually is aware of or received written notice of; provided that Guarantor, in each case, represents that David Thurm is the Senior Vice President, Operations of The New York Times Newspaper Division of NYTC and Kenneth A. Richieri is the General Counsel of NYTC and President of NYT Sales, each of which are the officers of Guarantor most familiar with the Property and the condition and operation thereof.
The fact that the representations of Guarantor set forth in this Certificate may be limited to the best of Guarantors knowledge shall not be deemed to modify or alter any provision of any of the Relevant Documents requiring Guarantor to indemnify Landlord.
7. Indemnity . Guarantor shall indemnify and hold harmless Landlord, its successors and assigns, from and against any and all liabilities, losses, damages, costs, expenses (including without limitation reasonable attorneys fees and expenses), causes of action, suits, claims, demands or judgments of any nature howsoever caused should any representation or
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warranty set forth herein prove to have been untrue or inaccurate when made or arising from any breach by Guarantor of any representation or warranty set forth herein.
8. Successors and Assigns; Survival . This Guarantors Certificate shall be for the benefit of Landlord, its successors and assigns, and shall be binding upon Guarantor and each of its successors and assigns. The representations, warranties, covenants and indemnifications made by Guarantor in this Guarantors Certificate shall survive until repayment in full of the Monetary Obligations (as defined in the Lease) under the Lease.
9. Further Assurances . Within ten (10) days after written request, Guarantor shall, or shall cause Seller to, re-make, re-execute, re-deliver, and/or file or cause the same to be done, such corrected or replacement documents executed in connection with the transaction contemplated hereby ( Section 36(p) Documents ) as Landlord may deem reasonably necessary in order to give effect to the rights expressly conferred on Landlord pursuant to the Lease and other Relevant Documents, such that the documents for this transaction shall be an accurate reflection of the parties agreement thereunder provided. However, under no circumstances shall Guarantors or Sellers obligations and/or liabilities be increased by reason of the Section 36(p) Documents nor shall Guarantors or Sellers rights and/or benefits be decreased by reason of the Section 36(p) Documents.
10. Broker Commissions . Neither Guarantor nor Seller has incurred any obligation or liability for any commission or fee that is or will be payable to any person by reason of the transactions contemplated hereby, including without limitation the consummation of the sale and the lease of Sellers interest in the Property, except for fees payable to Cushman & Wakefield, Inc. pursuant to a separate agreement between Seller and Cushman & Wakefield, Inc. Furthermore, there are no commissions or fees that are or will be payable to any person in connection with the leasing of any portion of the Building, including in connection with any expansions, extensions of renewals of any existing leases. Guarantor and Seller shall jointly and severally indemnify and hold Landlord harmless from and against any and all loss, damage, liability or expense, including costs and reasonable attorneys fees, which Landlord may incur or sustain by reason of or in connection with any misrepresentation by Guarantor or Seller with respect to the foregoing.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9
EXECUTION COPY
IN WITNESS WHEREOF, NYTC, for itself and on behalf of NYT Sales, duly executed this Guarantors Certificate on the date and year first above written.
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THE NEW YORK TIMES COMPANY , a |
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New York corporation |
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By: |
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Name: |
Kenneth A. Richieri |
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Title: |
Senior Vice President, General |
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Counsel and Secretary |
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SCHEDULE 1
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 Surveyors 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 Registers 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,
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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.
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SCHEDULE OF UNITS
UNIT DESIGNATION |
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TAX LOT |
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PERCENTAGE INTEREST
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0-A |
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1001 |
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0.6627 |
% |
1- A |
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1003 |
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2.0132 |
% |
1-E |
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1007 |
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0.0691 |
% |
2-A |
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1009 |
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4.7805 |
% |
3-A |
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1010 |
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4.7579 |
% |
4-A |
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1011 |
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4.5636 |
% |
5-A |
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1012 |
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1.6352 |
% |
6-A |
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1013 |
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1.7325 |
% |
7-A |
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1014 |
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1.7325 |
% |
8-A |
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1015 |
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1.7325 |
% |
9-A |
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1016 |
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1.7325 |
% |
10-A |
|
1017 |
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1.7325 |
% |
11-A |
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1018 |
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1.7325 |
% |
12-A |
|
1019 |
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1.7325 |
% |
13-A |
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1020 |
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1.7325 |
% |
14-A |
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1021 |
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1.7440 |
% |
15-A |
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1022 |
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1.3998 |
% |
16-A |
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1023 |
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1.7484 |
% |
17-A |
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1024 |
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1.7207 |
% |
18-A |
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1025 |
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1.7711 |
% |
19-A |
|
1026 |
|
1.7711 |
% |
20-A |
|
1027 |
|
1.7711 |
% |
28-A |
|
1035 |
|
0.4446 |
% |
13
Exhibit U
SIDE LETTER RE: PURCHASE OF LOAN
NYT REAL ESTATE COMPANY LLC
620 EIGHTH AVENUE
NEW YORK, NEW YORK 10018
March , 2009
620 EIGHTH NYT (NY) LIMITED PARTNERSHIP
c/o W.P. Carey & Co. LLC
50 Rockefeller Plaza, 2 nd Floor
New York, New York 10020
Re: |
Lease Agreement, dated as of March , 2009 ( Lease ), by and between NYT REAL ESTATE COMPANY LLC, a New York limited liability company ( Tenant ), and 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership (Landlord) |
Gentlemen:
In consideration of the execution and delivery of the above-referenced Lease by Landlord, Tenant hereby covenants and agrees with Landlord that, in connection with the closing of a Loan (as defined in the Lease), Tenant shall execute and deliver to Landlord a letter in substantially the form attached hereto as Exhibit A .
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Very truly yours, |
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NYT REAL ESTATE COMPANY LLC |
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By: |
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By: |
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Name: |
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Title: |
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1
EXHIBIT A
NYT REAL ESTATE COMPANY LLC
620 EIGHTH AVENUE
NEW YORK, NEW YORK 10018
, 20
620 EIGHTH NYT (NY) LIMITED PARTNERSHIP
c/o W.P. Carey & Co. LLC
50 Rockefeller Plaza, 2 nd Floor
New York, New York 10020
Re: |
Lease Agreement, dated as of March , 2009 ( Lease ), by and between NYT REAL ESTATE COMPANY LLC, a New York limited liability company ( Tenant ), and 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership (Landlord) |
Gentlemen:
Reference is made to that certain $ loan (the Loan) made by ( Lender ) to Landlord, which Loan is secured by, inter alia , a certain [ Deed of Trust/Mortgage ] of even date herewith (the Mortgage ) encumbering certain real property located in New York, New York (the Property ), which Property is leased to Tenant pursuant to the above-referenced Lease.
In consideration of the execution and delivery of the Lease by Landlord and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Tenant hereby covenants and agrees with Landlord that, in the event Tenant or any Affiliate (as hereinafter defined) of Tenant purchases the interest of Lender in the Loan, Tenant or such Affiliate will not exercise any of the remedies provided to Lender under the Mortgage or any of the other documents evidencing or securing the Loan if and so long as an Event of Default exists and is continuing under the Lease.
For the purposes hereof, the term Affiliate shall mean, with respect to a corporation, (i) any officer or director thereof and any person, trust, corporation, partnership, venture or other entity who or which is, directly or indirectly, the beneficial owner of more than 10% of any class of shares or other equity security of such corporation, or (ii) any person, trust, corporation, partnership, venture or other entity which, directly or indirectly controls or is controlled by or under common control with such corporation, or (iii) any general partner, general partner of a general partner, partnership with a common general partner, or co-venturer of or with any person or entity described in (i) or (ii) above, or (iv) if any general partner or co-venturer is a corporation, any person, trust, corporation, partnership, venture or other entity which is an Affiliate as defined above of such corporation, or (v) if any of the foregoing is a
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natural person, his or her parents, spouse, children, siblings and their children, and spouses parents, children, siblings and their children.
Controls, controlled by and under common control with each refers to the effective power, directly or indirectly, to direct or cause the direction of the management and policies of the person, trust, corporation, partnership, venture or other entity in question, whether by contract or otherwise.
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Very truly yours, |
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3
EXHIBIT V
LESSEE ESTOPPEL
SEVERANCE LEASE / TENANTS ESTOPPEL CERTIFICATE
To: |
42ND ST. DEVELOPMENT PROJECT, INC. |
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Re: |
Agreement of Sublease dated as of December 12, 2001, between The New York Times Building LLC ( NYTB ), as landlord, and NYT Real Estate Company LLC, a New York limited liability company ( Tenant ), NYTBs interest in which Agreement of Sublease as landlord was assigned by Assignment and Assumption Agreement dated as of August 15, 2006, to 42 nd St. Development Project, Inc., as landlord (in such capacity, Landlord ), which Agreement of Sublease was amended pursuant to First Amendment to Agreement of Sublease (NYT) dated as of 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 as of 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 , 2009, between Landlord and Tenant 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 ). |
Date: March , 2009
The undersigned hereby certifies to and agrees with Landlord as follows as of the date hereof:
1. All capitalized terms used herein and not otherwise defined herein shall have the same meaning ascribed to them in the Severance Lease.
2. The Severance Lease has not been further modified and is in full force and effect.
3. The Charges payable by Tenant under the Severance Lease to Landlord have been paid in full up to and including the following date(s):
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PILOT: |
June 30, 2009 |
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Theater Surcharge: |
December 31, 2009 |
4 Neither an Event of Default under the Severance Lease nor any event that, with the giving of notice or the passage of time, or both, would constitute an Event of Default under the Severance Lease, has occurred. No Default has occurred in Tenants performance of any covenant, agreement, obligation or condition contained in the Severance Lease. Notwithstanding the statements in the preceding two (2) sentences, Tenant acknowledges that Landlord has advised Tenant that (i) Tenant is not in compliance with its obligations to provide Landlord, for Landlords review and approval in accordance with the terms of the Severance Lease, with details relating to the design and programming of the flat screen televisions installed by Tenant in lieu of retail signage (the Signage Obligations ) and Landlord reserves all rights and powers to enforce the Signage Obligations and remedies with respect thereto, and (ii) with
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respect to the Prohibited Person status of Purchaser as a proposed transferee of the NYTC Sublease, Landlords knowledge is limited to a search of the NYC Vendex database indicating that no Caution or Warrant information was discovered.
5. To the best knowledge of Tenant, no event has occurred that, with the giving of notice or the passage of time, or both, would constitute a default by Landlord in the performance of any covenant, agreement, obligation or condition contained in the Severance Lease. To the best knowledge of Tenant, Landlord is not in default in performance of any covenant, agreement, obligation or condition contained in the Severance Lease.
6. From and after the date hereof, any notice that Tenant is entitled to receive under the Severance Lease shall be sent as follows:
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NYT Real Estate Company LLC |
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c/o The New York Times Company |
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620 Eighth Avenue |
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New York, New York 10018 |
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Attention: General Counsel |
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With copies to: |
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The New York Times Company |
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620 Eighth Avenue |
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New York, New York 10018 |
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Attention: Director of Real Estate |
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DLA Piper US LLP |
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1251 Avenue of the Americas |
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New York, New York 10020 |
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Attention: Martin D. Polevoy, Esq. |
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620 EIGHTH NYT (NY) LIMITED PARTNERSHIP |
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c/o W.P. Carey & Co. LLC |
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50 Rockefeller Plaza, 2 nd Floor |
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New York, NY 10020 |
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Attn: Asset Management, Director |
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Reed Smith LLP |
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599 Lexington Avenue, 29 th Floor |
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New York, NY 10029 |
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Attn: Real Estate Department, Chair |
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] |
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IN WITNESS WHEREOF, the undersigned duly executed this Estoppel on the date and year first above written.
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NYT REAL ESTATE COMPANY LLC |
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620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership |
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STATE OF NEW YORK |
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ss.: |
COUNTY OF NEW YORK |
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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 of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in h capacity, and that by h signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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Notary Public |
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Commission Expires |
STATE OF NEW YORK |
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COUNTY OF NEW YORK |
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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 of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in h capacity, and that by h signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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Notary Public |
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Commission Expires |
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EXHIBIT W
FIRST NOTE
(NOTE: THIS PROMISSORY NOTE MAY REQUIRE A BALLOON PAYMENT AT MATURITY)
PROMISSORY NOTE
$175,000,000.00(U.S.) March , 2009
FOR VALUE RECEIVED, the undersigned ( Borrower ), promises to pay to the order of 620 EIGHTH LENDER NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership, at its address c/o W.P. Carey & Co. LLC 50 Rockefeller Plaza, New York, New York 10020, or at such other place as the holder of this Note ( Lender ) may from time to time designate in writing, the sum of $175,000,000.00, in lawful money of the United States.
1. Interest and Payments .
All amounts payable under this Note shall become due at the option of the holder thereof on April 1, 2020 (the Maturity Date ). Interest shall be payable at the rate of five percent (5%) per annum. The amounts secured by this Note shall be deemed to include all applicable and accrued interest (through any demand by Lender) payable by Borrower to Lender under this Note. No payment of interest, principal or any other sum shall be due under this Note on or before the Maturity Date.
2. Application of Payments .
Lender may apply such payments to the obligations secured by the Security Instrument (hereinafter defined) in such manner as it may elect in its sole discretion.
3. Prepayment .
Except as provided in this Paragraph 3, Borrower may not prepay its obligation under this Note. At anytime on or after January 1, 2019, Borrower shall have the right to prepay all (but not in part) interest, principal and any other sum due and payable under this Note . Notwithstanding the foregoing, if Lender, in its sole discretion, agrees to permit a prepayment, then it may do so on such terms and conditions as it may require in its sole discretion. No partial prepayment of this Note shall change the date or amount of any subsequent monthly payment required under the terms of this Note prior to payment in full of all amounts owing under this Note unless otherwise agreed in writing by Lender in its sole discretion.
4. Late Charge .
If any amount payable under this Note is not paid within five (5) days after the due date thereof, Borrower shall pay a late charge of five percent (5%) of the delinquent amount as liquidated damages for the extra expense in handling past due payments; provided, however that no such late charge shall be payable with respect to any balloon payment due on the maturity date of this Note.
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Any late charge payable under this section is in addition to any interest payable at the Default Rate (as defined below).
5. Security .
This Note is secured by a mortgage, security agreement, assignment of leases and rents and fixture filing (the Security Instrument ) of even date herewith, encumbering certain property described in the Security Instrument. The property and the other collateral provided for in the Security Instrument are collectively referred to as the Property.
6. Default; Remedies .
If default is made in the payment of any amount payable hereunder (an Event of Default ), then, at the option of Lender, the entire indebtedness evidenced hereby will become immediately due and payable. Upon the occurrence of an Event of Default, and without notice or demand, all amounts owed under this Note, including all accrued but unpaid interest, will thereafter bear interest at a variable rate equal to five percent (5%) over the Prime Rate (hereinafter defined) per annum (the Default Rate ) until all Events of Default are cured. Failure to exercise any option granted to Lender hereunder will not waive the right to exercise the same in the event of any subsequent Event of Default. Interest at the Default Rate will commence to accrue upon the occurrence of any Event of Default, including the failure to pay this Note at maturity. Borrower shall pay all interest accrued at the Default Rate upon demand by Lender. Any judgment for amounts owing under this Note or the Security Instrument shall bear interest at the Default Rate. Prime Rate shall mean the annual interest rate as published, from time to time, in The Wall Street Journal as the Prime Rate in its column entitled Money Rate. The Prime Rate may not be the lowest rate of interest charged by any large U.S. money center commercial banks and Landlord makes no representations or warranties to that effect. In the event The Wall Street Journal ceases publication or ceases to publish the Prime Rate as described above, the Prime Rate shall be the average per annum discount rate (the Discount Rate) on ninety-one (91) day bills (Treasury Bills) issued from time to time by the United States Treasury at its most recent auction, plus three hundred (300) basis points. If no such 91-day Treasury Bills are then being issued, the Discount Rate shall be the discount rate on Treasury Bills then being issued for the period of time closest to ninety-one (91) days.
7. Attorneys Fees .
In the event of an Event of Default, or in the event that any dispute arises relating to the interpretation, enforcement or performance of this Note, Lender will be entitled to collect from Borrower on demand all fees and expenses incurred in connection therewith, including but not limited to fees of attorneys, accountants, appraisers, environmental inspectors, consultants, expert witnesses, arbitrators, mediators and court reporters. Without limiting the generality of the foregoing, Borrower will pay all such costs and expenses incurred in connection with: (a) arbitration or other alternative dispute resolution proceedings, trial court actions and appeals; (b) bankruptcy or other insolvency proceedings of Borrower, any guarantor or other Person liable for any of the obligations of this Note or any Person having any interest in any security for any of those obligations; (c) judicial or nonjudicial foreclosure on, or appointment of a receiver for, any
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property securing this Note; (d) postjudgment collection proceedings; (e) all claims, counterclaims, cross-claims and defenses asserted in any of the foregoing whether or not they arise out of or are related to this Note or any security for this Note; (f) all preparation for any of the foregoing; and (g) all settlement negotiations with respect to any of the foregoing.
8. Nonrecourse Obligations . Subject to the qualifications that the Security Instrument and the estate of the Borrower in the Property shall continue to secure this Note, the Borrower shall be liable for payment and performance of all of the obligations, covenants and agreements under this Note to the full extent (but only to the extent) of the estate of the Borrower in the Property. If an Event of Default occurs in the timely and proper payment of any portion of this Note, except to the extent set forth above in this paragraph 8, Borrower shall not be personally liable for the repayment of any of the principal of, interest on, or prepayment fees or late charges, or other charges or fees due under this Note.
9. Miscellaneous .
(i) Every Person at any time liable for the payment of the indebtedness evidenced hereby waives presentment for payment, demand and notice of nonpayment of this Note. Every such Person further hereby consents to any extension of the time of payment hereof or other modification of the terms of payment of this Note, the release of all or any part of the security herefor or the release of any Person liable for the payment of the indebtedness evidenced hereby at any time and from time to time at the request of anyone now or hereafter liable therefor. Any such extension or release may be made without notice to any of such Persons and without discharging their liability.
(ii) Each Person who signs this Note is jointly and severally liable for the full repayment of the entire indebtedness evidenced hereby and the full performance of each and every obligation contained in the Security Instrument.
(iii) The headings to the various sections have been inserted for convenience of reference only and do not define, limit, modify or expand the express provisions of this Note.
(iv) Time is of the essence under this Note and in the performance of every term, covenant and obligation contained herein.
(v) This Note is made with reference to and is to be construed in accordance with the laws of the State of New York, without regard to conflicts of law principles.
(vi) If Lender at any time discovers that this Note or the Security Instrument contains any error which was caused by a clerical mistake, calculation error, computer error, printing error or similar error, Borrower will, upon demand by Lender re-execute any such documents as are necessary or appropriate to correct any such error and Lender will have no liability to Borrower or any other Person as a result of such error. If this Note or the Security Instrument are lost, stolen, mutilated or destroyed and Lender delivers to Borrower an indemnification agreement reasonably indemnifying Borrower against any loss or liability resulting therefrom, Borrower will execute and deliver to Lender a replacement thereof in form
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and content identical to the original document which will have the effect of the original for all purposes.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
4
DATED as of the day and year first above written.
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NYT REAL ESTATE COMPANY LLC, |
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a New York limited liability company |
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By: |
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Name: |
Kenneth A. Richieri |
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Manager |
STATE OF NEW YORK |
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On the day of March, in the year 2009, before me, the undersigned, personally appeared Kenneth A. Richieri, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me he/she/they executed the same in his/her/their/ capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
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My Commission Expires: |
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5
EXHIBIT X
FIRST MORTGAGE
MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING
Dated: March , 2009
among
NYT REAL ESTATE COMPANY LLC,
a New York limited liability company
with an address at:
c/o The New York Times Company
620 Eighth Avenue
New York, New York 10018
(the Mortgagor )
AND
NEW YORK STATE URBAN DEVELOPMENT CORPORATION, D/B/A/ EMPIRE
STATE DEVELOPMENT CORPORATION,
a corporate governmental agency of the State of New York constituting a
political
subdivision and public benefit corporation
with an address at:
633 Third Avenue
New York, New York 10017
( ESDC ), as co- mortgagee,
AND
620 EIGHTH LENDER NYT (NY) LIMITED PARTNERSHIP,
a Delaware limited partnership
with an address at:
c/o W.P. Carey & Co. LLC
50 Rockefeller Plaza
New York, New York 10020
Attn.: Director, Asset Management
(the Mortgagee ) , as co- mortgagee,
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The land affected by the within instrument lies in:
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1001, 1003, 1009 through 1027, and 1035 (formerly part of Lot 1) |
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Addresses: |
620-628 8th Avenue, |
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263-267 and 241-261 West 40th Street, |
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24S2-244 West 41st Street, |
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231-235 West 40th Street, |
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248-256, 260-262 and 268 West 41st Street |
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634 and 630-632 8th Avenue, |
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New York, New York |
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County: |
New York |
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RECORD AND RETURN TO:
Reed Smith LLP
599 Lexington Avenue, 29 th Floor
New York, New York 10022
Attn: Joseph M. Marger, Esq.
2
MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING
THIS MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING (herein Mortgage ) is made this ____ day of March, 2009, among NYT REAL ESTATE COMPANY LLC, a New York limited liability company, whose address is c/o The New York Times Company, 620 Eighth Avenue, New York, New York 10018 (herein Mortgagor ), NEW YORK STATE URBAN DEVELOPMENT CORPORATION, D/B/A/ EMPIRE STATE DEVELOPMENT CORPORATION, a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, having an office at 633 Third Avenue, New York, New York 10017 ( ESDC ) as co- mortgagee, and 620 EIGHTH LENDER NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership, whose address is c/o W.P. Carey & Co. LLC, 50 Rockefeller Plaza, New York, New York 10020, as co-mortgagee (herein Mortgagee ).
W I T N E S S E T H :
To secure the payment of an indebtedness in the principal sum of ONE HUNDRED SEVENTY FIVE MILLION AND 00/100 DOLLARS ($175,000,000.00), in lawful money of the United States of America, to be paid with interest (said indebtedness, interest and all other sums which may or shall become due hereunder being hereinafter collectively referred to as the Debt ) according to a certain promissory note dated the date hereof given by Mortgagor to Mortgagee (hereinafter referred to as the Note ), Mortgagor has mortgaged, given, granted, bargained, sold, aliened, enfeoffed, conveyed, confirmed and assigned, and by these presents does mortgage, give, grant, bargain, sell, alien, enfeoff, convey, confirm and assign unto Mortgagee all right, title and interest of Mortgagor now owned, or hereafter acquired, in and to the property in the County of New York, State of New York, known as consisting of certain leasehold condominium units in the property known as 620-628 8th Avenue, 263-267 and 241-261 West 40th Street, 242-244 West 41st Street, 231-235 West 40th Street, 248-256, 260-262 and 268 West 41st Street, 634 and 630-632 8th Avenue, New York, New York (which address is provided for reference only and shall in no way limit the description of the real and personal property otherwise described below), described as follows, whether now existing or hereafter acquired (all of the property described in all parts below is called the Mortgaged Property ):
(A) Condominium Units . The leasehold condominium units and undivided interest in the Condominium common elements appurtenant thereto all as more particularly described in Exhibit A attached hereto (collectively, the Unit ), all located in the building known as The New York Times Building having a street address of 620 Eighth Avenue, New York, New York (the Building ). The land upon which the Building is constructed and which constitutes a part of the Condominium is herein referred to as the Land ; and
(B) Leasehold . The leasehold estate created by the Severance Lease (the Severance Lease ) described on Exhibit B attached hereto; any and all options to purchase, rights of first refusal and renewal options with respect to the Severance Lease or any real or personal property covered thereby, or any portion thereof or any interest therein; any and all greater estate in such real or personal property (including but not limited to the fee estate) as may subsequently be
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acquired by or released to Mortgagor, whether under the Severance Lease or otherwise; any and all interest, estate and other claims, both in law and equity, that Mortgagor now has or may hereafter acquire in and to any such real or personal property; and any and all other rights and interests of Mortgagor arising under or as a result of the Severance Lease; and
(C) Improvements, Appurtenances and Fixtures . All Appurtenances (hereinafter defined) and any structures and other improvements now or hereafter constructed within the Unit or which are located on or about the Building and which serve only the Unit or which otherwise constitute a part thereof under the terms of the Condominium Documents (as defined below) (collectively, the Improvements ). All the fixtures, machinery, equipment and other property described in Exhibit B hereto located within the Unit or on or about the Building and which serve only the Unit or which otherwise constitute a part thereof under the terms of the Condominium Documents, but specifically excluding Mortgagors Personal Property (hereinafter defined); and
(D) Enforcement and Collection . Any and all rights of Mortgagor without limitation to make claim for, collect, receive and receipt for any and all rents, income, revenues, issues, earnest money, deposits, refunds (including but not limited to refunds from property taxing authorities, utilities and insurers), royalties, and profits, including mineral, oil and gas rights and profits, insurance proceeds of any kind (whether or not Mortgagee requires such insurance and whether or not Mortgagee is named as an additional insured or loss payee of such insurance), condemnation awards and other moneys, payable or receivable from or on account of any of the Premises, including interest thereon, or to enforce all other provisions of any other agreement (including those described in (B) above) affecting or relating to any of the Premises, to bring any suit in equity, action at law or other proceeding for the collection of such moneys or for the specific or other enforcement of any such agreement, award or judgment, in the name of Mortgagor or otherwise, and to do any and all things that Mortgagor is or may be or become entitled to do with respect thereto, provided, however, that no obligation of Mortgagor under the provisions of any such agreements, awards or judgments shall be impaired or diminished by virtue hereof, nor shall any such obligation be imposed upon Mortgagee; and
(E) Accounts and Income . Any and all rights of Mortgagor in any and all accounts, rights to payment, contract rights, chattel paper, documents, instruments, licenses, contracts, agreements and general intangibles relating to any of the Premises; and
(F) Leases . All of Mortgagors rights as landlord in and to all existing and future leases and tenancies, whether written or oral and whether for a definite term or month to month or otherwise, now or hereafter demising all or any portion of the Mortgaged Property, including all renewals and extensions thereof and all rents, deposits and other amounts received or receivable thereunder, and including all guaranties, supporting obligations, letters of credit (whether tangible or electronic) and letter of credit rights guaranteeing or supporting any such lease or tenancy (in accepting this Mortgage Mortgagee assumes no liability for the performance of any such lease); and
(G) Books and Records . All tradenames, trademarks, servicemarks, logos, copyrights, goodwill, books and records and all other general intangibles relating to or used in
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connection with the operation of the Premises, but specifically excluding Mortgagors Personal Property; and
(H) Proceeds . All proceeds resulting or arising from the foregoing.
Mortgagor covenants that Mortgagor is lawfully seized of the estate hereby conveyed and has the right to mortgage, grant, convey and assign the Mortgaged Property (and that the Severance Lease is in full force and effect without modification and without default on the part of either lessor or lessee thereunder), that the Mortgaged Property is unencumbered, and that Mortgagor will warrant and defend generally the title to the Mortgaged Property against all claims and demands, subject to any Permitted Exceptions (hereinafter defined).
PROVIDED, HOWEVER, that the term Mortgaged Property shall exclude the following which shall not be subject to the lien of this Mortgage:
(i) Any existing cause of action, or damage claim, of or against Mortgagor;
(ii) All rights and interests of Mortgagor with respect to any amounts due Mortgagor with respect to the Mortgaged Property and arising prior to the date of this Mortgage (including but not limited to, tax refunds, casualty or condemnation proceeds, utility deposits, rents or other income from the Mortgaged Property) to the extent attributable to periods prior to the date of this Mortgage;
(iii) All rights and interests of Mortgagor with respect to and appurtenant 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) 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; and
(v) All right, title and interest of Mortgagor in and to that certain (i) NYTC Facility Maintenance and Management Agreement relating to the Condominium Units and the Excluded Units between Mortgagor 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 Mortgagor and First New York Partners Management, LLC dated as of April , 2008.
As used herein, the following terms shall have the following meanings:
Appurtenances shall mean all tenements, hereditaments, easements, rights-of-way, rights, privileges in and to the Building or the Land, including (a) easements over other lands granted by any conditions, covenants, restrictions, easements, declarations, licenses and other agreements as may now or hereafter affect the Mortgaged Property, (b) any streets, ways, alleys,
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vaults, gores or strips of land adjoining the Land and (c) any and all rights to the use or enjoyment of, or access to, any other portion of the Condominium under the terms or provisions of the Condominium Documents, the Severance Lease and/or the Ground Lease (hereinafter defined).
Mortgagors Personal Property shall mean all furniture, furnishings equipment and other personal property of Mortgagor, 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 Improvements and any other personal property owned by Mortgagor or a sublessee of Mortgagor or other occupant of the Mortgaged Property; provided that in no case shall Mortgagors Personal Property include fixtures or built-in heating, ventilating, air-conditioning, and electrical equipment (including power panels) to be utilized in connection with the operation of the Mortgaged Property.
Condominium Documents shall mean collectively, (i) the Declaration (hereinafter defined), and all the terms and provisions thereof, and (ii) the Bylaws (hereinafter defined) and (iii) any rules or regulations adopted under the Declaration or the Bylaws, in each case, now or hereafter in effect and as same may be amended, restated, modified or supplemented from time to time.
Ground Lease shall mean that certain Agreement of Lease, dated as of December 12, 2001, between 42nd Street Development Project, Inc., as landlord, and The New York Times Building LLC, as tenant with respect to certain land more particularly described in Exhibit A attached hereto as the land area of the Condominium and all improvements then or thereafter located thereon, as evidenced by Memorandum of Agreement of Lease, including an Option to Purchase, between 42nd Street Development Project, Inc. and The New York Times Building LLC, dated December 12, 2001, recorded in the Office of the City Register, New York County on October 24, 2003 as CRFN 2003000433122, as amended by Letter Agreement dated April 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), as further amended by 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 August 15, 2006 and recorded in the Office of the City Register, New York County on November 20, 2006 as CRFN 2006000644732, and as further amended by 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 August 15, 2006 and recorded in the Office of the City Register, New York County on November 20, 2006 as CRFN 2006000644736 and further amended by First Amendment to Amended and Restated Agreement of Lease dated January 29, 2007 and recorded in the Office of the City Register, New York County as CRFN 2007000100154, as the same may be amended from time to time.
TO HAVE AND TO HOLD the above granted and described Mortgaged Property unto and to the proper use and benefit of Mortgagee, and the successors and assigns of Mortgagee, forever.
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PROVIDED, ALWAYS, and these presents are upon this express condition, if Mortgagor shall well and truly pay to Mortgagee the Debt at the time and in the manner provided in the Note and this Mortgage and shall well and truly abide by and comply with each and every covenant and condition set forth herein and in the Note, then these presents and the estate hereby granted shall cease, determine and be void.
AND Mortgagor covenants with and represents and warrants to Mortgagee as follows:
1. Payment of Debt . Mortgagor will pay the Debt at the time and in the manner provided for its payment in the Note.
2. Warranty of Title . Mortgagor warrants that Mortgagor has good, marketable and insurable title to the Mortgaged Property and has the full power, authority and right to execute, deliver and perform its obligations under this Mortgage and to deed, encumber, mortgage, give, grant, bargain, sell, alienate, enfeoff, convey, confirm, pledge, assign and hypothecate the same and that Mortgagor possesses a leasehold estate in the premises created by the Severance Lease and that it owns the Mortgaged Property free and clear of all liens, encumbrances and charges whatsoever except those which are approved by Mortgagee or given by Mortgagor to Mortgagee covering the Mortgaged Property (the Permitted Exceptions ) and that this Mortgage is and will remain a valid and enforceable first lien on and security interest in the Mortgaged Property, subject only to the Permitted Exceptions. Mortgagor shall forever warrant, defend and preserve such title and the validity and priority of the lien of this Mortgage and shall forever warrant and defend the same to Mortgagee against the claims of all persons whomsoever. By its acceptance of this Mortgage, Mortgagee acknowledges that, and consents to, after the recordation of this Mortgage Mortgagor recording as a lien which is junior and subordinate to the lien of this Mortgage, as the same may be amended, extended, supplemented or modified from time to time, that certain Wrap-Around Mortgage, Assignment of Rents, Security Agreement and Fixture Filing to be entered into subsequently to the entry of this Mortgage by Mortgagor in favor of 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP.
3. Sale of Mortgaged Property . If this Mortgage is foreclosed, the Mortgaged Property, or any interest therein, may, at the discretion of Mortgagee, be sold in one or more parcels or in several interests or portions and in any order or manner.
4. No Credits on Account of the Debt . Mortgagor will not claim or demand or be entitled to any credit or credits on account of the Debt for any part of the taxes assessed against the Mortgaged Property or any part thereof and no deduction shall otherwise be made or claimed from the taxable value of the Mortgaged Property, or any part thereof, by reason of this Mortgage or the Debt.
5. Documentary Stamps . If at any time the United States of America, any state thereof or any governmental subdivision of any such state shall require revenue or other stamps to be affixed to the Note or this Mortgage, Mortgagor will pay for the same, with interest and penalties thereon, if any.
6. Acceleration; Appointment of Receiver . Upon the occurrence and during the continuance of any default beyond applicable notice and cure periods under the Note, all the Debt
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shall become immediately due and payable, without notice or demand, at the option of Mortgagee and Mortgagee may foreclose this Mortgage or otherwise realize upon the Mortgaged Property as permitted under applicable law. Mortgagee, in any action to foreclose this Mortgage or upon the actual or threatened waste to any part of the Mortgaged Property or upon the occurrence of any default hereunder, shall be at liberty, without notice, to apply for the appointment of a receiver of the Rents, and shall be entitled to the appointment of such receiver as a matter of right, without regard to the value of the Mortgaged Property as security for the Debt, or the solvency or insolvency of any person then liable for the payment of the Debt.
7. Liability . If Mortgagor consists of more than one person, the obligations and liabilities of each such person hereunder shall be joint and several.
8. Construction . The terms of this Mortgage shall be governed by and construed in accordance with the laws of the State of New York.
9. Security Agreement . This Mortgage constitutes both a real property mortgage and a security agreement within the meaning of the Uniform Commercial Code, and the Mortgaged Property includes both real and personal property and all other rights and interest, whether tangible or intangible in nature, of Mortgagor in the Mortgaged Property. Mortgagor, by executing and delivering this Mortgage, has granted to Mortgagee, as security for the Debt, a security interest in the Equipment. If Mortgagor shall default under the Note or this Mortgage, Mortgagee, in addition to any other rights and remedies which it may have, shall have and may exercise, immediately and without demand, any and all rights and remedies granted to a secured party upon default under the Uniform Commercial Code.
10. Fixture Filing . This Mortgage constitutes a financing statement, filed as a fixture filing in the real estate records of the county of the state in which the real property described in Exhibit A is located, with respect to any and all fixtures included within the list of improvements and fixtures described in Section (C) of the preambles of this Mortgage and to any goods or other personal property that are now or hereafter will become a part of the Mortgaged Property as fixtures.
11. Headings, etc . The headings and captions of various paragraphs of this Mortgage are for convenience of reference only and are not to be construed as defining or limiting, in any way, the scope or intent of the provisions hereof.
12. Filing of Mortgage, etc. Mortgagor forthwith upon the execution and delivery of this Mortgage and thereafter, from time to time, will cause this Mortgage, and any security instrument creating a lien or evidencing the lien hereof upon the Mortgaged Property, to be filed, registered or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect the lien hereof upon, and the interest of Mortgagee in, the Mortgaged Property. Mortgagor will pay all filing, registration or recording fees, and all expenses incident to the preparation, execution and acknowledgment of this Mortgage and any security instrument with respect to the Mortgaged Property, and all Federal, state, county and municipal taxes, duties, imposts, assessments and charges arising out of or in connection with the execution and delivery of this Mortgage or any security instrument with respect to the Mortgaged Property. Mortgagor shall hold harmless and indemnify Mortgagee, its
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successors and assigns, against any liability incurred by reason of the imposition of any tax on the making and recording of this Mortgage.
13. Marshalling . Mortgagor waives and releases any right to have the Mortgaged Property marshalled.
14. Authority . Mortgagor (and the undersigned representative of Mortgagor) has full power, authority and legal right to execute this Mortgage and to mortgage, give, grant, bargain, sell, alien, enfeoff, convey, confirm and assign the Mortgaged Property pursuant to the terms hereof and to keep and observe all of the terms of this Mortgage on Mortgagors part to be performed.
15. Inapplicable Provisions . If any term, covenant or condition of the Mortgage shall be held to be invalid, illegal or unenforceable in any respect, this Mortgage shall be construed without such provision.
16. No Oral Change . This Mortgage may only be modified or amended by an agreement in writing signed by Mortgagor and Mortgagee, and may only be released, discharged or satisfied of record by an agreement in writing signed by Mortgagee.
17. Trust Fund . Pursuant to Section 13 of the Lien Law of New York, Mortgagor shall receive the advances secured hereby and shall hold the right to receive such advances as a trust fund to be applied first for the purpose of paying the cost of any improvement and shall apply such advances first to the payment of the cost of any such improvement on the Mortgaged Property before using any part of the total of the same for any other purpose.
18. Commercial Property . This Agreement does not cover real property principally improved or to be improved by one or more structures containing in the aggregate not more than six (6) residential dwelling units.
19. Maximum Principal Indebtedness . The maximum amount of principal secured hereby or which under any contingency may be secured hereby is ONE HUNDRED SEVENTY FIVE MILLION AND 00/100 DOLLARS ($175,000,000.00).
20. Nonrecourse Obligations . Subject to the qualifications that this Mortgage and the estate of the Mortgagor in the Property shall continue to secure the Note, the Mortgagor shall be liable for payment and performance of all of the obligations, covenants and agreements under the Note to the full extent (but only to the extent) of the estate of the Mortgagor in the Mortgaged Property. If a default occurs in the timely and proper payment of any portion of the Note, except to the extent set forth above in this paragraph 20, Mortgagor shall not be personally liable for the repayment of any of the principal of, interest on, or prepayment fees or late charges, or other charges or fees due under the Note.
21. Assignment Upon Refinancing . Upon written request of Mortgagor in connection with a refinancing of the Debt or transfer or sale of the Mortgaged Property, Mortgagee shall assign this Mortgage, without recourse, warranty or representation whatsoever to the refinancing lender upon (a) payment of a sum equal to all monies or indebtedness outstanding under the Note and this Mortgage, including but not limited to, the Debt, all interest accrued thereon,
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Mortgagees standard assignment fee as in effect at the time of such assignment and payment of all costs and expenses (including, without limitation, reasonable outside attorneys fees) incurred in connection with the assignment of this Mortgage, and (b) Mortgagors delivery to Mortgagee of an affidavit pursuant to Section 275 of the New York Real Property Law and such other documents and instruments as Mortgagee may reasonably request.
22. Recognized Mortgage . Notwithstanding anything herein to the contrary, (A) insurance proceeds/condemnation awards with respect to the Property shall not be disposed or applied in a manner inconsistent with the terms of that certain 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, NYTBs 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 ); (B) Mortgagee shall provide written notice to 42DP of any defaults under this Mortgage in accordance with Paragraph 31(c) of the Severance Lease and shall permit 42DP the right to cure any such default and upon such cure 42DP shall be subrogated to the rights of the Mortgagee to the extent of such cure; (C) this Mortgage shall not be modified, amended, extended or consolidated without delivering a copy thereof to 42DP; (D) this Mortgage shall not extend to, affect, or be a lien or encumbrance upon, the estate and interest of 42DP in the Demised Premises or the Common Elements (as such terms are defined in the Severance Lease), in the Severance Lease or any part thereof; (E) this Mortgage shall at all times be subject and subordinate to (i) the Severance Lease, and (ii) the Condominium Documents and to the Board of Managers Liens, the NYTC Board of Managers Liens and the FC Board of Managers Liens (as such terms are defined in the Condominium Documents); and (F) the Mortgagee (and its successors and assigns) will take title to the Mortgaged Property subject to the Condominium Documents.
23. Co-Mortgagee . ESDC (i) is acting under this Mortgage as co-mortgagee solely for the purpose of making available to the Mortgagor an exemption from mortgage recording tax, (ii) has no beneficial interest in or discretionary authority whatsoever as co-mortgagee hereunder or under the Note and pursuant to the provisions of Paragraph 24 of this Mortgage, effective immediately after the recording of this Mortgage, is resigning as co-mortgagee and assigning to Mortgagee, all of its right, title and interest in and to this Mortgage and (iii) has no obligations, responsibilities or liabilities whatsoever under this Mortgage or the Note other than to (x) record this Mortgage in the City Registers Office and (y) perform its obligations under Paragraph 24 of this Mortgage.
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24. Assignment .
(a) In consideration of the making of the Note by Mortgagee to the Mortgagor and for other good and valuable consideration, receipt and sufficiency of which hereby are acknowledged, effective immediately after the recording of this Mortgage, automatically and without further action by ESDC, ESDC shall and does hereby resign as co-mortgagee hereunder and assign unto Mortgagee, all of ESDCs right, title and interest under this Mortgage as co-mortgagee, such assignment being made without recourse, representation or warranty by ESDC, in any case or event or for any purpose whatsoever.
(b) By executing this Mortgage, effective immediately after the recording of this Mortgage, automatically and without further action by Mortgagee, (i) Mortgagee consents to and accepts ESDCs resignation pursuant to this Paragraph 24, (ii) Mortgagee accepts the assignment by ESDC of all of ESDCs right, title and interest under this Mortgage as co-mortgagee hereunder and (iii) Mortgagee, as successor mortgagee, does assume and agree to be bound by all of the terms and conditions of this Mortgage, and all of the obligations under this Mortgage applicable to it in such capacity as mortgagee hereunder.
(c) The foregoing assignment and assumption shall be and is self-executing, effective immediately after the recording of this Mortgage, automatically and without more, and no further act shall be or is required by any of the parties to this Mortgage to effectuate the foregoing assignment and assumption. In confirmation of the foregoing, the parties shall execute a separate assignment of this Mortgage, which is intended to be recorded in the City Registers Office, after the recording of this Mortgage.
(d) The Mortgagor acknowledges that ESDC is entering into this Mortgage as co-mortgagee solely as an accommodation to the Mortgagor and Mortgagee and that ESDC shall have absolutely no obligations, responsibilities or liabilities hereunder whatsoever to the Mortgagor, the Mortgagee and/or any third parties other than to record this Mortgage in the City Registers Office.
(e) Mortgagor indemnifies, defends and holds ESDC and Mortgagee harmless from and against any and all claims, losses, damages, costs, expenses, suits and demands, including without limitation, reasonable attorneys fees, court costs and disbursements, arising from or relating to ESDCs acting as co-mortgagee hereunder.
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Mortgagor, ESDC and Mortgagee have duly executed this Mortgage the day and year first above written.
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MORTGAGOR: |
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NYT REAL ESTATE COMPANY LLC, |
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a New York limited liability company |
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By: |
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Name: |
Kenneth A. Richieri |
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Title: |
Manager |
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STATE OF NEW YORK |
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)ss.: |
COUNTY OF NEW YORK |
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On the day of March, in the year 2009, before me, the undersigned, personally appeared Kenneth A. Richieri, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me he/she/they executed the same in his/her/their/ capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
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Notary Public |
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My Commission Expires: |
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STATE OF NEW YORK |
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)ss.: |
COUNTY OF NEW YORK |
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On the day of March, in the year 2009, before me, the undersigned, personally appeared Jason E. Fox, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me he/she/they executed the same in his/her/their/ capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
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Notary Public |
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CO-MORTGAGEE : |
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NEW
YORK STATE URBAN DEVELOPMENT
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By: |
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Name: |
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Title: |
STATE OF NEW YORK |
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COUNTY OF NEW YORK |
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On the day of March, in the year 2009, before me, the undersigned, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me he/she/they executed the same in his/her/their/ capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
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Notary Public |
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Exhibit A
Property 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 Registers 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.
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SCHEDULE OF UNITS
UNIT DESIGNATION |
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TAX LOT |
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PERCENTAGE INTEREST
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0-A |
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1001 |
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0.6627 |
% |
1- A |
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1003 |
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2.0132 |
% |
1-E |
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1007 |
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0.0691 |
% |
2-A |
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1009 |
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4.7805 |
% |
3-A |
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1010 |
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4.7579 |
% |
4-A |
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1011 |
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4.5636 |
% |
5-A |
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1012 |
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1.6352 |
% |
6-A |
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1013 |
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1.7325 |
% |
7-A |
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1014 |
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1.7325 |
% |
8-A |
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1015 |
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1.7325 |
% |
9-A |
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1016 |
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1.7325 |
% |
10-A |
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1017 |
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1.7325 |
% |
11-A |
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1018 |
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1.7325 |
% |
12-A |
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1019 |
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1.7325 |
% |
13-A |
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1020 |
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1.7325 |
% |
14-A |
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1021 |
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1.7440 |
% |
15-A |
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1022 |
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1.3998 |
% |
16-A |
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1023 |
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1.7484 |
% |
17-A |
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1024 |
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1.7207 |
% |
18-A |
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1025 |
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1.7711 |
% |
19-A |
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1026 |
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1.7711 |
% |
20-A |
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1027 |
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1.7711 |
% |
28-A |
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1035 |
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0.4446 |
% |
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Exhibit B
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 NYTBs 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 ).
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EXHIBIT Y
FIRST MORTGAGE UCC-1
UCC FINANCING STATEMENT
FOLLOW INSTRUCTIONS (front and back) CAREFULLY
A. NAME & PHONE OF CONTACT AT FILER [optional]
B. SEND ACKNOWLEDGMENT TO: (Name and Address)
REED SMITH LLP
599 Lexington Avenue, 29th Floor
New York, NY 10022
Attention: Ziad Hammodi, Esq.
THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY
NY County Clerk
FILING OFFICE COPY UCC FINANCING STATEMENT (FORM UCC1) (REV. 05/22/02)
1
Instructions for UCC Financing Statement (Form UCC1)
Please type or laser-print this form. Be sure it is completely legible. Read all Instructions, especially Instruction 1; correct Debtor name is crucial. Follow Instructions completely.
Fill in form very carefully; mistakes may have important legal consequences. If you have questions, consult your attorney. Filing office cannot give legal advice.
Do not insert anything in the open space in the upper portion of this form; it is reserved for filing office use.
When properly completed, send Filing Office Copy, with required fee, to filing office. If you want an acknowledgment, complete item B and, if filing in a filing office that returns an acknowledgment copy furnished by filer, you may also send Acknowledgment Copy; otherwise detach. If you want to make a search request, complete item 7 (after reading Instruction 7 below) and send Search Report Copy, otherwise detach. Always detach Debtor and Secured Party Copies.
If you need to use attachments, you are encouraged to use either Addendum (Form UCC1Ad) or Additional Party (Form UCC1AP).
A. To assist filing offices that might wish to communicate with filer, filer may provide information in item A. This item is optional.
B. Complete item B if you want an acknowledgment sent to you. If filing in a filing office that returns an acknowledgment copy furnished by filer, present simultaneously with this form a carbon or other copy of this form for use as an acknowledgment copy.
1. Debtor name : Enter only one Debtor name in item 1 , an organizations name (1a) or an individuals name (1b). Enter Debtors exact full legal name . Dont abbreviate.
1a. Organization Debtor. Organization means an entity having a legal identity separate from its owner. A partnership is an organization; a sole proprietorship is not an organization, even if it does business under a trade name. If Debtor is a partnership, enter exact full legal name of partnership; you need not enter names of partners as additional Debtors. If Debtor is a registered organization (e.g., corporation, limited partnership, limited liability company), it is advisable to examine Debtors current filed charter documents to determine Debtors correct name, organization type, and jurisdiction of organization.
1b. Individual Debtor . Individual means a natural person; this includes a sole proprietorship, whether or not operating under a trade name. Dont use prefixes (Mr., Mrs., Ms.). Use suffix box only for titles of lineage (Jr., Sr., III) and not for other suffixes or titles (e.g., M.D.). Use married womans personal name (Mary Smith, not Mrs. John Smith). Enter individual Debtors family name (surname) in Last Name box, first given name in First Name box, and all additional given names in Middle Name box.
For both organization and individual Debtors : Dont use Debtors trade name, DBA, AKA, FKA, Division name, etc. in place of or combined with Debtors legal name; you may add such other names as additional Debtors if you wish (but this is neither required nor recommended).
1c. An address is always required for the Debtor named in 1a or 1b.
1d. Reserved for Financing Statements to be filed in North Dakota or South Dakota only . If this Financing Statement is to be filed in North Dakota or South Dakota, the Debtors taxpayer identification number (tax ID#) social security number or employer identification number must be placed in this box.
1e,f,g. Additional information re organization Debtor is always required. Type of organization and jurisdiction of organization as well as Debtors exact legal name can be determined from Debtors current filed charter document. Organizational ID #, if any, is assigned by the agency where the charter document was filed; this is different from tax ID #; this should be entered preceded by the 2-character U.S. Postal identification of state of organization if one of the United States (e.g., CA12345, for a California corporation whose organizational ID # is 12345); if agency does not assign organizational ID #, check box in item 1g indicating none.
Note: If Debtor is a trust or a trustee acting with respect to property held in trust, enter Debtors name in item 1 and attach Addendum (Form UCC1Ad) and check appropriate box in item 17. If Debtor is a decedents estate, enter name of deceased individual in item 1b and attach Addendum (Form UCC1Ad) and check appropriate box in item 17. If Debtor is a transmitting utility or this Financing Statement is filed in connection with a Manufactured-Home Transaction or a Public-Finance Transaction as defined in applicable Commercial Code, attach Addendum (Form UCC1Ad) and check appropriate box in item 18.
2. If an additional Debtor is included, complete item 2, determined and formatted per Instruction 1. To include further additional Debtors, attach either Addendum (Form UCC1Ad) or Additional Party (Form UCC1AP) and follow Instruction 1 for determining and formatting additional names.
3. Enter information for Secured Party or Total Assignee, determined and formatted per Instruction 1. To include further additional Secured Parties, attach either Addendum (Form UCC1Ad) or Additional Party (Form UCC1AP) and follow Instruction 1 for determining and formatting additional names. If there has been a total assignment of the Secured Partys interest prior to filing this form, you may either (1) enter Assignor S/Ps name and address in item 3 and file an Amendment (Form UCC3) [see item 5 of that form]; or (2) enter Total Assignees name and address in item 3 and, if you wish, also attaching Addendum (Form UCC1Ad) giving Assignor S/Ps name and address in item 12.
4. Use item 4 to indicate the collateral covered by this Financing Statement. If space in item 4 is insufficient, put the entire collateral description or continuation of the collateral description on either Addendum (Form UCC1Ad) or other attached additional page(s).
5. If filer desires (at filers option) to use titles of lessee and lessor, or consignee and consignor, or seller and buyer (in the case of accounts or chattel paper), or ballee and bailor instead of Debtor and Secured Party, check the appropriate box in item 5. If this is an agricultural lien (as defined in applicable Commercial Code) filing or is otherwise not a UCC security interest filing (e.g., a tax lien, judgment lien, etc.), check the appropriate box in item 5, complete items 1-7 as applicable and attach any other items required under other law.
6. If this Financing Statement is filed as a fixture filing or if the collateral consists of timber to be cut or as-extracted collateral, complete items 1-5, check the box in item 6, and complete the required information (items 13, 14 and/or 15) on Addendum (Form UCC1Ad).
7. This item is optional. Check appropriate box in item 7 to request Search Report(s) on all or some of the Debtors named in this Financing Statement. The Report will list all Financing Statements on file against the designated Debtor on the date of the Report, including this Financing Statement. There is an additional fee for each Report. If you have checked a box in item 7, file Search Report Copy together with Filing Officer Copy (and Acknowledgment Copy). Note: Not all states do searches and not all states will honor a search request made via this form; some states require a separate request form.
8. This item is optional and is for filers use only. For filers convenience of reference, filer may enter in item 8 any identifying information (e.g., Secured Partys loan number, law firm file number, Debtors name or other identification, state in which form is being filed, etc.) that filer may find useful.
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Debtor: NYT REAL ESTATE COMPANY, a New York limited liability company
Item No. 4 (continued) - Exhibit A
Collateral is as follows:
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Debtor: NYT REAL ESTATE COMPANY, a New York limited liability company
Item No. 4 (continued) - Exhibit A
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Debtor: NYT REAL ESTATE COMPANY, a New York limited liability company
Item No. 4 (continued) - Exhibit A
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,
5
Debtor: NYT REAL ESTATE COMPANY, a New York limited liability company
Item No. 4 (continued) - Exhibit A
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.
6
Debtor: NYT REAL ESTATE COMPANY, a New York limited liability company
Item No. 4 (continued) - Exhibit A
SCHEDULE OF UNITS
UNIT DESIGNATION |
|
TAX LOT |
|
PERCENTAGE INTEREST
|
|
|
|
|
|
|
|
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 |
% |
Remainder of Page Intentionally Left Blank
7
Debtor: NYT REAL ESTATE COMPANY, a New York limited liability company
Item No. 4 (continued) - Exhibit A
The legal description of the Real Property referred to above is as follows:
THE REAL PROPERTY REFERRED TO HEREIN IS ALL THAT CERTAIN REAL PROPERTY LOCATED IN THE BOROUGH OF MANHATTAN, COUNTY OF NEW YORK STATE OF NEW YORK, DESCRIBED AS FOLLOWS:
SEE LEGAL DESCRIPTION ATTACHED HERETO AND MADE A PART HEREOF.
Block: 1012
Lots: 1001, 1003, 1009 through 1027, and 1035 (formerly part of Lot 1)
Addresses: |
620-628 8th Avenue, |
|
263-267 and 241-261 West 40th Street, |
|
242-244 West 41st Street, |
|
231-235 West 40th Street, |
|
248-256, 260-262 and 268 West 41st Street |
|
634 and 630-632 8th Avenue, |
|
New York, New York |
|
|
County: |
New York |
END OF LEGAL DESCRIPTION
8
EXHIBIT Z
WRAP MORTGAGE UCC-1
UCC FINANCING STATEMENT
FOLLOW INSTRUCTIONS (front and back) CAREFULLY
A. NAME & PHONE OF CONTACT AT FILER [optional]
B. SEND ACKNOWLEDGMENT TO: (Name and Address)
REED SMITH LLP
599 Lexington Avenue, 29th Floor
New York, NY 10022
Attention: Ziad Hammodi, Esq.
THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY
NY County Clerk
FILING OFFICE COPY UCC FINANCING STATEMENT (FORM UCC1) (REV. 05/22/02)
1
Instructions for UCC Financing Statement (Form UCC1)
Please type or laser-print this form. Be sure it is completely legible. Read all Instructions, especially Instruction 1; correct Debtor name is crucial. Follow Instructions completely.
Fill in form very carefully; mistakes may have important legal consequences. If you have questions, consult your attorney. Filing office cannot give legal advice.
Do not insert anything in the open space in the upper portion of this form; it is reserved for filing office use.
When properly completed, send Filing Office Copy, with required fee, to filing office. If you want an acknowledgment, complete item B and, if filing in a filing office that returns an acknowledgment copy furnished by filer, you may also send Acknowledgment Copy; otherwise detach. If you want to make a search request, complete item 7 (after reading Instruction 7 below) and send Search Report Copy, otherwise detach. Always detach Debtor and Secured Party Copies.
If you need to use attachments, you are encouraged to use either Addendum (Form UCC1Ad) or Additional Party (Form UCC1AP).
A. To assist filing offices that might wish to communicate with filer, filer may provide information in item A. This item is optional.
B. Complete item B if you want an acknowledgment sent to you. If filing in a filing office that returns an acknowledgment copy furnished by filer, present simultaneously with this form a carbon or other copy of this form for use as an acknowledgment copy.
1. Debtor name : Enter only one Debtor name in item 1 , an organizations name (1a) or an individuals name (1b). Enter Debtors exact full legal name . Dont abbreviate.
1a. Organization Debtor . Organization means an entity having a legal identity separate from its owner. A partnership is an organization; a sole proprietorship is not an organization, even if it does business under a trade name. If Debtor is a partnership, enter exact full legal name of partnership; you need not enter names of partners as additional Debtors. If Debtor is a registered organization (e.g., corporation, limited partnership, limited liability company), it is advisable to examine Debtors current filed charter documents to determine Debtors correct name, organization type, and jurisdiction of organization.
1b. Individual Debtor . Individual means a natural person; this includes a sole proprietorship, whether or not operating under a trade name. Dont use prefixes (Mr., Mrs., Ms.). Use suffix box only for titles of lineage (Jr., Sr., III) and not for other suffixes or titles (e.g., M.D.). Use married womans personal name (Mary Smith, not Mrs. John Smith). Enter individual Debtors family name (surname) in Last Name box, first given name in First Name box, and all additional given names in Middle Name box.
For both organization and individual Debtors : Dont use Debtors trade name, DBA, AKA, FKA, Division name, etc. in place of or combined with Debtors legal name; you may add such other names as additional Debtors if you wish (but this is neither required nor recommended).
1c. An address is always required for the Debtor named in 1a or 1b.
1d. Reserved for Financing Statements to be filed in North Dakota or South Dakota only . If this Financing Statement is to be filed in North Dakota or South Dakota, the Debtors taxpayer identification number (taxID#) social security number or employer identification number must be placed in this box.
1e,f,g. Additional information re organization Debtor is always required. Type of organization and jurisdiction of organization as well as Debtors exact legal name can be determined from Debtors current filed charter document. Organizational ID #, if any, is assigned by the agency where the charter document was filed; this is different from tax ID #; this should be entered preceded by the 2-character U.S. Postal identification of state of organization if one of the United States (e.g., CA12345, for a California corporation whose organizational ID # is 12345); if agency does not assign organizational ID #, check box in item 1g indicating none.
Note : If Debtor is a trust or a trustee acting with respect to property held in trust, enter Debtors name in item 1 and attach Addendum (Form UCC1Ad) and check appropriate box in item 17. If Debtor is a decedents estate, enter name of deceased individual in item 1b and attach Addendum (Form UCC1Ad) and check appropriate box in item 17. If Debtor is a transmitting utility or this Financing Statement is filed in connection with a Manufactured-Home Transaction or a Public-Finance Transaction as defined in applicable Commercial Code, attach Addendum (Form UCC1Ad) and check appropriate box in item 18.
2. If an additional Debtor is included, complete item 2, determined and formatted per Instruction 1. To include further additional Debtors, attach either Addendum (Form UCC1Ad) or Additional Party (Form UCC1AP) and follow Instruction 1 for determining and formatting additional names.
3. Enter information for Secured Party or Total Assignee, determined and formatted per Instruction 1. To include further additional Secured Parties, attach either Addendum (Form UCC1Ad) or Additional Party (Form UCC1AP) and follow Instruction 1 for determining and formatting additional names. If there has been a total assignment of the Secured Partys interest prior to filing this form, you may either (1) enter Assignor S/Ps name and address in item 3 and file an Amendment (Form UCC3) [see item 5 of that form]; or (2) enter Total Assignees name and address in item 3 and, if you wish, also attaching Addendum (Form UCC1Ad) giving Assignor S/Ps name and address in item 12.
4. Use item 4 to indicate the collateral covered by this Financing Statement. If space in item 4 is insufficient, put the entire collateral description or continuation of the collateral description on either Addendum (Form UCC1Ad) or other attached additional page(s).
5. If filer desires (at filers option) to use titles of lessee and lessor, or consignee and consignor, or seller and buyer (in the case of accounts or chattel paper), or bailee and bailor instead of Debtor and Secured Party, check the appropriate box in item 5. If this is an agricultural lien (as defined in applicable Commercial Code) filing or is otherwise not a UCC security interest filing (e.g., a tax lien, judgment lien, etc.), check the appropriate box in item 5, complete items 1-7 as applicable and attach any other items required under other law.
6. If this Financing Statement is filed as a fixture filing or if the collateral consists of timber to be cut or as-extracted collateral, complete items 1-5, check the box in item 6, and complete the required information (items 13, 14 and/or 15) on Addendum (Form UCC1Ad).
7. This item is optional. Check appropriate box in item 7 to request Search Report(s) on all or some of the Debtors named in this Financing Statement. The Report will list all Financing Statements on file against the designated Debtor on the date of the Report, including this Financing Statement. There is an additional fee for each Report. If you have checked a box in item 7, file Search Report Copy together with Filing Officer Copy (and Acknowledgment Copy). Note: Not all states do searches and not all states will honor a search request made via this form; some states require a separate request form.
8. This item is optional and is for filers use only. For filers convenience of reference, filer may enter in item 8 any identifying information (e.g., Secured Partys loan number, law firm file number, Debtors name or other identification, state in which form is being filed, etc.) that filer may find useful.
2
Debtor: NYT REAL ESTATE COMPANY, a New York limited liability company
Item No. 4 (continued) - Exhibit A
Collateral is as follows:
3
Debtor: NYT REAL ESTATE COMPANY, a New York limited liability company
Item No. 4 (continued) - Exhibit A
4
Debtor: NYT REAL ESTATE COMPANY, a New York limited liability company
Item No. 4 (continued) - Exhibit A
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,
5
Debtor: NYT REAL ESTATE COMPANY, a New York limited liability company
Item No. 4 (continued) - Exhibit A
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.
6
SCHEDULE OF UNITS
UNIT DESIGNATION |
|
TAX LOT |
|
PERCENTAGE INTEREST
|
|
|
|
|
|
|
|
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 |
% |
Remainder of Page Intentionally Left Blank
7
Debtor: NYT REAL ESTATE COMPANY, a New York limited liability company
Item No. 4 (continued) - Exhibit A
The legal description of the Real Property referred to above is as follows:
THE REAL PROPERTY REFERRED TO HEREIN IS ALL THAT CERTAIN REAL PROPERTY LOCATED IN THE BOROUGH OF MANHATTAN, COUNTY OF NEW YORK STATE OF NEW YORK, DESCRIBED AS FOLLOWS:
SEE LEGAL DESCRIPTION ATTACHED HERETO AND MADE A PART HEREOF.
Block: 1012
Lots: 1001, 1003, 1009 through 1027, and 1035 (formerly part of Lot 1)
Addresses: |
620-628 8th Avenue, |
|
263-267 and 241-261 West 40th Street, |
|
242-244 West 41st Street, |
|
231-235 West 40th Street, |
|
248-256, 260-262 and 268 West 41st Street |
|
634 and 630-632 8th Avenue, |
|
New York, New York |
|
|
County: |
New York |
END OF LEGAL DESCRIPTION
8
EXHIBIT BB
THIRD AMENDMENT TO DECLARATION
THIRD AMENDMENT
TO
DECLARATION OF LEASEHOLD CONDOMINIUM
ESTABLISHING A PLAN OF LEASEHOLD CONDOMINIUM
OWNERSHIP OF PREMISES KNOWN AS AND HAVING A STREET
ADDRESS OF 620 EIGHTH AVENUE, NEW YORK, NEW YORK
Name of Condominium: |
|
The New York Times Building Condominium |
|
|
|
Dated: |
|
As of March 2009 |
|
|
|
Block: |
|
1012 |
|
|
|
Lots: |
|
1001-1058 |
|
|
|
|
|
|
|
|
Record and Return to : |
|
|
|
|
|
Robert M. Safron, Esq. |
|
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Patterson Belknap Webb & Tyler LLP |
|
|
1133 Avenue of the Americas |
|
|
New York, New York 10036 |
1
Third Amendment to
Declaration of
The New York Times Building Condominium
This Third Amendment to Declaration (this Third Amendment), made as of the day of March, 2009, by FC EIGHTH AVE., LLC, having an address c/o Forest City Ratner Companies, 1 Metrotech Center North, Brooklyn, New York 11201 and NYT REAL ESTATE COMPANY LLC, having an address c/o The New York Times Company, 620 Eighth Avenue, New York, New York 10018, being all of the Unit Owners of the Condominium Units located in the building known as The New York Times Building Condominium (collectively, the Unit Owners), do hereby declare as follows:
WHEREAS, The New York Times Building LLC was the Declarant under that certain Declaration Establishing a Plan of Leasehold Condominium Ownership of Premises known as and having a street address of 620 Eighth Avenue, New York, New York (the Declaration), which Declaration was dated as of August 4, 2006, and recorded in the Office of the City Register of the City of New York (the City Registers Office) on August 15, 2006 as CRFN 2006000460293, as amended by that certain First Amendment to the Declaration (the First Amendment), which First Amendment was dated as of January 29, 2007, and recorded in the City Registers Office on February 8, 2007 as CRFN 2007000075106 and further amended by that certain Second Amendment to the Declaration (the Second Amendment), which Second Amendment was dated October 11, 2007, and recorded in the Citys Registers Office on January 8, 2008 as CRFN 2008000008734 (the Declaration, the First Amendment and the Second Amendment are hereinafter referred to collectively as the Declaration);
WHEREAS, the Unit Owners wish to amend and modify certain terms of the Declaration in the manner hereinafter provided;
NOW, THEREFORE, the Declaration is hereby amended as follows:
1. Article XIII of the Declaration entitled Person to Receive Service is hereby amended and restated in its entirety to read as follows:
PERSON TO RECEIVE SERVICE
The Secretary of State of the State of New York is hereby designated to receive service of process in any action or proceeding which may be brought against the Condominium.
The Secretary of State, in such event, shall deliver a copy of any such process or notice to the Board of Managers, c/o The New York Times Company, 620 Eighth Avenue, New York, New York 10018, Attention: General Counsel. As required by the Laws, the Condominium Board shall notify the Secretary of State of any change in the person authorized to receive a copy of any process served against the Secretary of State. The Board of Managers shall deliver promptly to each Unit Owner, Ground Lessee and each
2
Unit Owners Registered Mortgagee copies of any notices received by the Board of Managers pursuant to this Article XIII.
2. Article XX, Section 9 of the Declaration entitled Registered Mortgagee Requirements; Rights of Registered Mortgagees is hereby amended so as to add the following proviso to the end of clause (ii)(y) of such Section 9(a):
; provided, however, that (1) if a mortgagees mortgage covers only all or part of the FC Areas constituting the FC Collective Unit (and not any of the NYTC Collective Unit), then such mortgagee need not subordinate its mortgage to the NYTC Board of Managers Liens in order for such mortgage to be a Registered Mortgage, (2) if a mortgagees mortgage covers only all or part of the NYTC Areas constituting the NYTC Collective Unit (and not any of the FC Collective Unit), then such mortgagee need not subordinate its mortgage to the FC Board of Managers Liens in order for such mortgage to be a Registered Mortgage, (3) if a mortgagees mortgage covers all or part of the FC Areas constituting the entire FC Collective Unit (and not any of the NYTC Collective Unit) and the FC Collective Unit is owned by a single Unit Owner (or a group of Unit Owners which are Affiliates) or the mortgage covers the entire FC Collective Unit (and not any of the NYTC Collective Unit) and the mortgage covering the FC Collective Unit prohibits the FC Unit Owner from selling the FC Collective Unit without such mortgagees consent and no such sale has occurred that has been consented to by such mortgagee, then such mortgagee need not subordinate its mortgage to the FC Board of Managers Liens in order for such mortgage to be a Registered Mortgage, and (4) if a mortgagees mortgage covers all or part of the NYTC Areas constituting the entire NYTC Collective Unit (and not any of the FC Collective Unit) and the NYTC Collective Unit is owned by a single Unit Owner (or a group of Unit Owners which are Affiliates) or the mortgage covers the entire NYTC Collective Unit (and not any of the FC Collective Unit) and the mortgage covering the NYTC Collective Unit prohibits the NYTC Unit Owner from selling the NYTC Collective Unit without such mortgagees consent and no such sale has occurred that has been consented to by such mortgagee, then such mortgagee need not subordinate its mortgage to the NYTC Board of Managers Liens in order for such mortgage to be a Registered Mortgage.
3. The following additional modifications are hereby made to the Declaration:
a. The existing definition of NYTC Unit Lease is hereby deleted in its entirety and replaced with the following:
NYTC Unit Lease shall mean (i) that certain sublease dated as of December 12, 2001 between Declarant, as sublandlord, and NYT Real Estate Company LLC, as subtenant, a memorandum of which was
3
recorded on October 24, 2003 in the Registers Office as CRFN2003000433125, and an amended memorandum of which will be recorded promptly following the recordation of this Declaration, as said sublease may be assigned, amended, supplemented and/or restated from time to time as permitted thereunder, (ii) that certain sublease dated as of March , 2009 between Ground Lessee, as sublandlord, and NYT Real Estate Company LLC, as subtenant, a memorandum of which is intended to be recorded in the Registers Office, as said sublease may be assigned, amended, supplemented and/or restated from time to time as permitted thereunder, and (iii) any new sublease entered into by Ground Lessee with a Registered Mortgagee (or its nominee or designee) in accordance with the applicable provisions of the NYTC Unit Lease described in the preceding subclauses (i) or (ii).
b. The existing definition of Unit Leases is hereby deleted in its entirety and replaced with the following:
Unit Leases shall mean, collectively, the FC Unit Lease and the NYTC Unit Lease, as each may be amended, supplemented and/or restated from time to time as permitted thereunder. The term Unit Lease , when used in the singular, shall refer to either the FC Unit Lease or the NYTC Unit Lease (as each may be amended, supplemented and/or restated from time to time as permitted thereunder), as appropriate.
c. Section 2 of Article XVIII of the Declaration is hereby deleted in its entirety and replaced with the following:
Section 2. Purchase Option Under Unit Leases. Except as otherwise set forth in this Section 2, the decision to exercise the purchase option set forth in Article V of the Unit Leases shall be made solely by the NYTC Board of Managers on behalf of all of the NYTC Unit Owners, and if the NYTC Board of Managers on behalf of all of the NYTC Unit Owners exercises the purchase option set forth in Article V of the NYTC Unit Lease, then each NYTC Unit Owner, FC Unit Owner and the Retail Unit Owner shall simultaneously exercise the purchase option set forth in Article V of its respective Unit Lease, and thereupon each Unit Owner shall take all actions required under its respective Unit Lease in connection with the exercise of such purchase option. If any FC Unit Owner or the Retail Unit Owner, by exercising such purchase option, will forfeit its right to reimbursement for Excess Site Acquisition Costs, then the NYTC Unit Owners shall, on the exercise of such purchase option, pay to each such FC Unit Owner and the Retail Unit Owner an amount equal to such FC Unit Owners and Retail Unit Owners forfeited Excess Site Acquisition Costs. Notwithstanding the foregoing, if all NYTC Unit Owners have not exercised the purchase option set forth in Article V of the NYTC Unit Lease on or before the date which is five (5) years prior to the date which is 99 years after the Commencement Date (as defined in
4
the Ground Lease), then any FC Unit Owner or the Retail Unit Owner or both shall have the right to exercise the purchase option set forth in Article V of its respective Unit Lease and, in such event, each of the NYTC Unit Owners and any other remaining Unit Owners simultaneously shall exercise the corresponding purchase options under their respective Unit Leases, and thereupon such Unit Owners shall take all actions necessary or required under its respective Unit Lease in connection with the exercise of such purchase option. In the event of the exercise of the aforesaid purchase options, the Unit Owners shall contemporaneously therewith enter into (and record in the Registers Office) an amendment to this Declaration to convert the same to a fee condominium on substantially the terms, covenants and conditions herein contained.
d. Each reference to NYTC Unit Owner in subparagraph (ii) in the last paragraph of Section 5(d) of Article XX of the Declaration and in subsections (a) and (b) of Section 8 of Article XX of the Declaration is hereby deleted in its entirety and replaced with NYTC.
4. The Unit Owners hereby confirm the following:
a. for purposes of Section 166 of Article III of the Declaration, (i) as of the date of this Third Amendment, no enclosure has been installed on the 52nd Floor and therefore there is no additional square footage to be taken into account in respect of any such enclosure, and (ii) unless and until such time (if any) as a temporary or permanent certificate of occupancy for any enclosure on the 52nd Floor has been (or under applicable Laws should have been) issued (or any earlier date that actual occupancy thereof for the conduct business commences or substantial services are being provided by the Board of Managers to such enclosure), no such additional square footage shall be taken into account in respect of any such enclosure;
b. decisions relating to access to, egress from and foot traffic within the Common Areas (including, without limitation, those comprising or abutting the atrium on the Ground Floor) constitute Unit Owner Decisions under Section 8(xv) of Article II of the By-Laws; provided, however, that (i) NYTC Unit Owner may restrict access to the corridor between the SPE Unit stage and the atrium on the Ground Floor during events being held on the SPE Unit stage, and (ii) the atrium on the Ground Floor shall not be accessible by tenants, patrons, guests or other invitees of the Building unless a Majority in Interest of the Unit Owners so agree; and
c. the Unit Owners shall, and shall cause their respective Managers on the Board of Managers to, cooperate with one another in good faith in order to modify the current sewer vent at the northwest corner of the Building (e.g., by extending the same) so as to eliminate venting that may be objectionable to tenants, patrons, guests and other invitees of the Building.
5
5. By the execution hereof, each of the Ground Lessee and the Registered Mortgagee hereby approve this Third Amendment.
6. All capitalized terms used herein which are not separately defined herein shall have the meanings given to those terms in the Declaration or the By-Laws of the Condominium.
7. Except as amended herein, the Declaration shall remain in full force and effect.
8. This Third Amendment may be executed in any number of counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one and the same instrument.
THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
6
IN WITNESS WHEREOF, the undersigned have caused this Third Amendment to be executed as of this day of March, 2009.
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FC EIGHTH AVE., LLC, a Delaware limited
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By: |
FC 42 Hotel LLC, a Delaware limited liability company, |
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its managing member |
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By: |
FCDT Corp., a New York corporation, |
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its managing member |
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By: |
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Name: |
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Title |
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NYT REAL ESTATE COMPANY LLC |
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By: |
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Name: |
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APPROVED: |
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Ground Lessee: |
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42 nd ST. DEVELOPMENT PROJECT, INC. |
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STATE OF NEW YORK |
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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 of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
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Notary Public |
STATE OF NEW YORK |
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ss.: |
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COUNTY OF NEW YORK |
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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 of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
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Notary Public |
STATE OF NEW YORK |
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ss.: |
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COUNTY OF NEW YORK |
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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 of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
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Notary Public |
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STATE OF |
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COUNTY OF |
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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 of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
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Notary Public |
STATE OF |
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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 of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
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Notary Public |
9
EXHIBIT DD
ASSIGNMENT OF NEW SEVERANCE SUBLEASE
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 ( Assignor ), a New York limited liability company, having an office c/o The New York Times Company, 620 Eighth Avenue, New York, New York 10018, and NYT BUILDING LEASING COMPANY LLC ( Assignee ), a New York limited liability company, having an office c/o The New York Times Company, 620 Eighth Avenue, New York, New York 10018.
W I T N E S S E T H :
WHEREAS, 42nd Street Development Project Inc. and Assignor have entered into that certain Agreement of Sublease (NYT-2), dated as of March , 2009, between 42nd Street Development Project, Inc., as landlord, and Assignor, as tenant (the New NYT Sublease ) with respect to the condominium units comprising Floors 21 through 27 of the building located at 620 Eighth Avenue, New York, New York, and their respective undivided interest in the common elements of The New York Times Building Condominium more particularly described in Exhibit A attached hereto and hereby made a part hereof and all improvements then or thereafter located thereon;
WHEREAS, Assignor wishes to assign all of its right, title and interest in and to the New NYTC Sublease to Assignee, and Assignee wishes to assume all such right, title and interest.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby covenant and agree as follows:
1. Capitalized terms used herein without definition shall have the respective meanings ascribed thereto in the New NYTC Sublease. References herein to any document or instrument shall refer to the same as it may be amended, modified, supplemented, extended, renewed or assigned.
2. Assignor hereby assigns, grants, bargains, sells and transfers all of its right, title and interest in and to the New NYTC Sublease, together with any and all amendments, extensions and renewals thereof, and together with all rights and obligations accrued or to accrue under said New NYTC 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 term of the New NYTC Sublease.
3. Assignee hereby assumes the duties and obligations and agrees to perform and comply with all of the covenants and conditions of the New NYTC Sublease to be performed or complied with by the tenant thereunder on and after the date hereof, as if Assignee had originally executed the New NYTC Sublease as the tenant thereunder.
4. Assignee indemnifies Assignor from any and all loss, cost, damage, liability or expense (including, without limitation, reasonable attorneys fees, court costs and disbursements)
1
which may be imposed on the Assignor by reason of any failure by Assignee to perform any of the obligations under the New NYTC Sublease arising from and after the Effective Date.
5. 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.
6. This Assignment shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns.
7. 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 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.
8. This Assignment shall be governed by, and construed in accordance with the laws of the State of New York.
9. This Assignment may be executed in counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.
2
IN WITNESS WHEREOF, the parties hereto have signed and delivered this Assignment as of the date first set above.
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ASSIGNOR: |
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NYT REAL ESTATE COMPANY LLC |
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By: |
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Name: |
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Title: Manager |
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ASSIGNEE: |
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NYT BUILDING LEASING
COMPANY
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By: |
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Name: |
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Title: Manager |
3
STATE OF NEW YORK |
) |
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COUNTY OF NEW YORK |
) |
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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.
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Notary Public |
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STATE OF NEW YORK |
) |
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):SS |
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COUNTY OF NEW YORK |
) |
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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.
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Notary Public |
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4
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 Registers 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,
5
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.
6
SCHEDULE OF UNITS
UNIT DESIGNATION |
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TAX LOT |
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PERCENTAGE INTEREST
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21-A |
|
1028 |
|
1.7819 |
% |
22-A |
|
1029 |
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1.7819 |
% |
23-A |
|
1030 |
|
1.7819 |
% |
24-A |
|
1031 |
|
1.7819 |
% |
25-A |
|
1032 |
|
1.7819 |
% |
26-A |
|
1033 |
|
1.7819 |
% |
27-A |
|
1034 |
|
1.7819 |
% |
7
EXHIBIT EE
ESDC MORTGAGE ASSIGNMENT
ASSIGNMENT OF MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING
This ASSIGNMENT OF MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING (this Assignment ) is made and entered into as of the [ ] day of March, 2009 by NEW YORK STATE URBAN DEVELOPMENT CORPORATION, D/B/A EMPIRE STATE DEVELOPMENT CORPORATION, a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, having an office at 633 Third Avenue, New York, New York 10017, as co-mortgagee ( Assignor ), to 620 EIGHT LENDER NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership, having an address at c/o W.P. Carey & Co. LLC, 50 Rockefeller Plaza, New York, New York 10020, as successor mortgagee ( Assignee ).
WHEREAS, Assignor is the co-mortgagee with the Assignee under that certain mortgage more particularly described on Schedule A attached hereto (the Mortgage ) covering premises described on Schedule B attached hereto; and
WHEREAS, Assignor desires to assign, effective immediately after the recording of the Mortgage, its interest in the Mortgage and obligations(s) described in said Mortgage and the monies due or to become due thereon with interest, to Assignee.
NOW, THEREFORE, in accordance with the foregoing premises and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor does by these presents hereby, effective immediately after the recording of the Mortgage, automatically and without more, absolutely grants, bargains, sells. assigns, transfers and sets over unto Assignee, its successors, transferees and assigns forever as successor mortgagee under the Mortgage, all the right, title and interest of Assignor in and to:
TOGETHER with the obligation(s) described in said Mortgage and the monies due or to become due thereon with the interest which are absolutely granted, bargained, sold, assigned, transferred, TO HAVE AND TO HOLD the same unto the said parties and to the successors, legal representatives and assigns of the said parties forever.
This Assignment is made without representation or warranty, express or implied, and without recourse against Assignor, its predecessors, successors and assigns, in any case or event for any purpose whatsoever.
1
IN WITNESS WHEREOF , Assignor has duly executed this Assignment as of the date first above written.
2
SCHEDULE A
Mortgage, Security Agreement and Fixture Filing made on March , 2009 by the Company to New York State Urban Development Corporation, D/B/A/ Empire State Development Corporation, a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, as co- mortgagee (ESDC) and Lender, as co-mortgagee, and intended to be recorded in the Office of the Register The City of New York, as assigned by Assignment of Mortgage, Security Agreement and Fixture Filing made on March , 2009 by ESDC to Lender and intended to be recorded in the Office of the Register The City of New York.
3
SCHEDULE B
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 , 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 Registers 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.
4
SCHEDULE OF UNITS
UNIT DESIGNATION |
|
TAX LOT |
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PERCENTAGE INTEREST
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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 |
% |
5
EXHIBIT FF
ESDC WRAP MORTGAGE ASSIGNMENT
ASSIGNMENT
OF WRAP - AROUND MORTGAGE, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
This ASSIGNMENT OF WRAP - AROUND MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this Assignment ) is made and entered into as of the [ ] day of March, 2009 by NEW YORK STATE URBAN DEVELOPMENT CORPORATION, D/B/A EMPIRE STATE DEVELOPMENT CORPORATION, a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, having an office at 633 Third Avenue, New York, New York 10017, as co-mortgagee ( Assignor ), to 620 EIGHT NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership, having an address at c/o W.P. Carey & Co. LLC, 50 Rockefeller Plaza, New York, New York 10020, as successor mortgagee ( Assignee ).
WHEREAS, Assignor is the co-mortgagee with the Assignee under that certain mortgage more particularly described on Schedule A attached hereto (the Mortgage ) covering premises described on Schedule B attached hereto; and
WHEREAS, Assignor desires to assign, effective immediately after the recording of the Mortgage, its interest in the Mortgage and obligations(s) described in said Mortgage and the monies due or to become due thereon with interest, to Assignee.
NOW, THEREFORE, in accordance with the foregoing premises and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor does by these presents hereby, effective immediately after the recording of the Mortgage, automatically and without more, absolutely grants, bargains, sells. assigns, transfers and sets over unto Assignee, its successors, transferees and assigns forever as successor mortgagee under the Mortgage, all the right, title and interest of Assignor in and to:
TOGETHER with the obligation(s) described in said Mortgage and the monies due or to become due thereon with the interest which are absolutely granted, bargained, sold, assigned, transferred, TO HAVE AND TO HOLD the same unto the said parties and to the successors, legal representatives and assigns of the said parties forever.
This Assignment is made without representation or warranty, express or implied, and without recourse against Assignor, its predecessors, successors and assigns, in any case or event for any purpose whatsoever.
1
IN WITNESS WHEREOF , Assignor has duly executed this Assignment as of the date first above written.
2
SCHEDULE A
Wrap-Around Mortgage, Security Agreement and Fixture Filing made on March , 2009 by the Company to New York State Urban Development Corporation, D/B/A/ Empire State Development Corporation, a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, as co- mortgagee (ESDC) and Lender, as co-mortgagee, and intended to be recorded in the Office of the Register The City of New York, as assigned by Assignment of Wrap-Around Mortgage, Security Agreement and Fixture Filing made on March , 2009 by ESDC to Lender and intended to be recorded in the Office of the Register The City of New York.
3
SCHEDULE B
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 Registers 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.
4
SCHEDULE OF UNITS
UNIT DESIGNATION |
|
TAX LOT |
|
PERCENTAGE INTEREST
|
|
|
|
|
|
|
|
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 |
% |
5
EXHIBIT GG
RELEASE AS TO NEW SEVERANCE SUBLEASE
RELEASE
RELEASE, dated as of the day of March, 2009 by 42ND ST. DEVELOPMENT PROJECT, INC., a subsidiary of New York State Urban Development Corporation d/b/a Empire State Development Corporation, a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, having an office at 633 Third Avenue, 33rd floor, New York, New York 10017 ( Landlord ).
W I T N E S S E T H:
WHEREAS:
A. Pursuant to that certain Assignment and Assumption of Sublease dated of even date herewith by and between NYT Real Estate Company LLC, a New York limited liability company ( Assignor ), as assignor, and NYT Building Leasing Company LLC, a New York limited liability company ( Assignee ), as assignee (the Assignment ), Assignor assigned to Assignee all of Assignors right, title and interest in and to that certain Agreement of Sublease (NYT-2) more particularly described on Exhibit A annexed hereto (the Severance Lease ), affecting the property more particularly described on Exhibit B annexed hereto (the Property ).
B. Landlord is the landlord under the Severance Lease and is delivering this Release is accordance with Section 13.3(b) of the Severance Lease.
NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, Landlord hereby agrees as follows:
1. All capitalized terms used herein shall have the same meaning ascribed to them in the Severance Lease, unless otherwise defined herein.
[REMAINDER OF PAGE INTENTIONALLY BLANK SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned has executed this Release as of the date first above written.
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42ND ST. DEVELOPMENT PROJECT, INC. |
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By: |
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Name: |
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Title: |
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STATE OF NEW YORK |
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COUNTY OF NEW YORK |
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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.
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Notary Public |
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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 Registers 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
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the Declaration) of the New York Times Building Condominium, recorded as CRFN 2006000460293 as amended.
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SCHEDULE OF UNITS
Description of Demised Premises Units
Unit Designation |
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Tax Lot |
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Percentage Interest In
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21-A |
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1028 |
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1.7819% |
22-A |
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1029 |
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1.7819% |
23-A |
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1030 |
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1.7819% |
24-A |
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1031 |
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1.7819% |
25-A |
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1032 |
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1.7819% |
26-A |
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1033 |
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1.7819% |
27-A |
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1034 |
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1.7819% |
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EXHIBIT B
Severance Lease
Agreement of Sublease (NYT-2) dated March , 2009 between 42nd St. Development Project, Inc., as landlord, and NYT Real Estate Company LLC, as tenant, a Memorandum of which is intended to be recorded in the Office of the City Register of the City of New York prior to this Release, which Agreement of Sublease (NYT-2) is being assigned by NYT Real Estate Company LLC to NYT Building Leasing Company LLC by Assignment and Assumption of Sublease dated of even date herewith and intended to be recorded in the Office of the City Register of the City of New York prior to this Release.
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Exhibit 10.2
Execution Version
LEASE AGREEMENT
by and between
620 EIGHTH NYT (NY) LIMITED PARTNERSHIP,
a Delaware limited partnership
as LANDLORD
and
NYT REAL ESTATE COMPANY LLC ,
a New York limited liability company,
as TENANT
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Premises: |
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Leasehold Condominium |
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New York Times Building |
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620 Eighth Avenue |
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New York, New York |
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Dated as of: March 6, 2009
TABLE OF CONTENTS
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Page |
1. |
Demise of Premises |
2 |
2. |
Certain Definitions |
2 |
3. |
Title and Condition |
11 |
4. |
Use of Leased Premises; Quiet Enjoyment |
13 |
5. |
Term |
15 |
6. |
Basic Rent |
17 |
7. |
Additional Rent |
17 |
8. |
Net Lease; Non-Terminability |
18 |
9. |
Payment of Impositions |
19 |
10. |
Compliance with Laws and Easement Agreements, Environmental Matters |
20 |
11. |
Liens; Recording |
22 |
12. |
Maintenance and Repair |
23 |
13. |
Alterations and Improvements |
24 |
14. |
Permitted Contests |
26 |
15. |
Indemnification |
26 |
16. |
Insurance |
28 |
17. |
Casualty and Condemnation |
32 |
18. |
Termination Events |
34 |
19. |
Restoration |
35 |
20. |
Procedures Upon Purchase |
37 |
21. |
Assignment and Subletting, Prohibition Against Leasehold Financing |
38 |
22. |
Events of Default |
43 |
23. |
Remedies and Damages upon Default |
46 |
24. |
Notices |
50 |
25. |
Estoppel Certificate |
51 |
26. |
Surrender |
51 |
27. |
No Merger of Title |
51 |
28. |
Books and Records |
52 |
29. |
Determination of Value |
53 |
30. |
Non-Recourse as to Landlord |
54 |
31. |
Financing |
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32. |
Subordination, Non-Disturbance and Attornment; Landlords Waiver |
57 |
33. |
Tax Treatment; Reporting |
58 |
34. |
Option to Purchase |
60 |
35. |
Right of First Offer |
61 |
36. |
Miscellaneous |
64 |
37. |
Security Deposit |
66 |
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EXHIBITS |
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Exhibit A |
- Premises |
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Exhibit B |
- Machinery and Equipment |
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Exhibit C |
- Schedule of Permitted Encumbrances |
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Exhibit D |
- Rent Schedule |
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Exhibit E |
- Default Termination Yield Schedule |
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Exhibit F |
- Form of Notice to Extend Term |
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Exhibit G |
- Form of Landlord SNDA |
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Exhibit H |
- Intentionally Omitted |
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Exhibit I |
- Form of Beneficial Assignment |
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LEASE AGREEMENT, made as of March 6, 2009, between 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP , a Delaware limited partnership ( Landlord ), with an address c/o W.P. Carey & Co. LLC, 50 Rockefeller Plaza, 2nd Floor, New York, New York 10020, and NYT REAL ESTATE COMPANY, LLC , a New York limited liability company, ( Tenant ), with an address at 620 Eighth Avenue, New York, New York 10018.
Concurrently with the execution of this Lease, Landlord has paid to Tenant the Acquisition Cost (less agreed closing and transaction costs) consistent with the terms of that certain Agreement of Purchase & Sale, dated as of the date of this Lease, by and between Landlord, as Buyer, and Tenant, as Seller (the PSA ), and in consideration thereof and as further evidence of and security for such transaction, Tenant has executed and delivered to Landlord (or has caused to be executed and delivered to Landlord) the Assignment of Severance Lease, the Landlord Mortgage, this Lease, the Guaranty and such other documents, certificates and/or instruments as required under the PSA or otherwise mutually agreed between Landlord and Tenant to consummate the transaction (the Transaction Documents ). Prior to entering into the Transaction Documents, Tenant and The New York Times Company engaged a nationally recognized real estate brokerage firm and made substantial marketing efforts in order to secure the best economic result for Tenant and The New York Times Company from the financing and/or sale-leaseback of the Leased Premises and have selected the transaction as evidenced by the Transaction Documents (including the Acquisition Cost) constitutes the best option for monetizing the Leased Premises under circumstances acceptable to Tenant and The New York Times Company and constitutes fair and reasonably equivalent value to Tenant and the New York Times Company.
In consideration of the rents and provisions herein stipulated to be paid and performed, Landlord and Tenant hereby covenant and agree as follows:
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1. Demise of Premises . Landlord hereby demises and lets to Tenant, and Tenant hereby takes and leases from Landlord, for the term and upon the provisions hereinafter specified, the following described property (collectively, the Leased Premises ): (a) the leasehold condominium units more particularly described and identified by tax lots in Exhibit A attached hereto consisting of (i) Floors 2 through 20 containing approximately 712,000 rentable square feet, (ii) NYTC Unit Owners (as defined in the Declaration) portions of the cellar (the Cellar Space ) and Floors 28 and 51, containing approximately 53,000 square feet, and (iii) the NYTC Unit Owners fractional undivided interest in approximately 100,000 square feet of common elements or limited common elements of the Condominium (as defined below) appurtenant thereto (collectively, the Unit ), all located in the building known as The New York Times Building and having a street address of 620 Eighth Avenue, New York, New York 10018 (the Building ), (b) all other Appurtenances and any structures and other improvements now or hereafter constructed within the Unit or which are located on or about the Building and which serve only the Unit or which otherwise constitute a part thereof under the terms of the Condominium Documents (as defined below) (collectively, the Improvements ), and (c) the fixtures, machinery, equipment and other property described in Exhibit B hereto located within the Unit or on or about the Building and which serve only the Unit or which otherwise constitute a part thereof under the terms of the Condominium Documents, but specifically excluding Tenants Personal Property (collectively, the Equipment ).
2. Certain Definitions .
Acquisition Cost shall mean amount of $225,000,000.
Acquisition Fee shall mean the amount of $8,720,222.51
Additional Rent shall mean Additional Rent as defined in Paragraph 7.
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) and the power to direct or cause the direction of the management or policies of such Person.
Alterations shall mean all changes, additions, improvements or repairs to, all alterations, reconstructions, restorations, renewals, replacements or removals of and all substitutions or replacements for any of the Improvements or Equipment, both interior and exterior, structural and non-structural, and ordinary and extraordinary.
Appurtenances shall mean all tenements, hereditaments, easements, rights-of-way, rights, privileges in and to the Building or the land upon which it is constructed and which constitutes a part of the Condominium (the Land ), including (a) easements over other lands granted by any Easement Agreement, (b) any streets, ways, alleys, vaults, gores or strips of land adjoining the Land and (c) any and all rights to the use or enjoyment of, or access to, any other portion of the Condominium under the terms or provisions of the Condominium Documents or the Severance Lease.
Asset Transfer shall mean Asset Transfer as defined in Paragraph 21(j).
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Assignment shall mean any assignment of rents and leases from Landlord to a Lender which (a) encumbers any of the Leased Premises or Landlords interest therein and (b) secures Landlords obligation to repay a Loan, as the same may be amended, supplemented or modified from time to time.
Assignment of Severance Lease shall mean the Assignment and Assumption of Severance Lease, dated as of the date of this Lease, by and between Tenant, as assignor, and Landlord, as assignee, pursuant to which Tenant assigned all of it rights title and interest as lessee under the Severance Lease to Landlord.
Basic Rent shall mean Basic Rent as defined in Paragraph 6.
Basic Rent Payment Date shall mean Basic Rent Payment Date as defined in Paragraph 6.
Basic Rent Payment Date shall mean Basic Rent Payment Date as defined in Paragraph 6.
Beneficial Transfer Documents shall mean, collectively (i) the True Assignment, (ii) a written waiver of any right of redemption by Tenant with respect to the Leased Premises and, to the fullest extent permitted by applicable law, a waiver of all rights, claims or defenses available to a mortgagor under the Laws of the State including any right to assert that the Lease continues to constitute a financing lease from and after the occurrence of the Option Lapse Date, (iii) an acknowledgement of the treatment of this Lease as a true lease for the balance of the Term in accordance with Paragraph 33(b) from and after the occurrence of the Option Lapse Date, (iv) a certified check in an amount equal to the amount of all State and New York City transfer taxes due in connection with the recording of the True Assignment, made payable to or at the direction of Landlord, (v) a certified check in an amount equal to all Costs incurred by Landlord in connection with the transactions contemplated by the Beneficial Transfer Documents and (vi) a certified check in an amount equal to the actual costs to obtain a Leasehold Owners ALTA Policy of Title Insurance in favor of Landlord with respect to the Leased Premises effective as of the date of the transfer of beneficial title contemplated hereby, subject only to the Permitted Exceptions and otherwise reasonably satisfactory to Landlord, together with such other customary affidavits or certificates requested by the applicable land title insurance company to issue such policy.
Casualty shall mean any damage to or destruction of or which affects the Leased Premises.
Commencement Date shall mean Commencement Date as defined in Paragraph 5.
Condemnation shall mean a Taking and/or a Requisition.
Condemnation Notice shall mean notice or knowledge of the institution of or intention to institute any proceeding for Condemnation.
Condominium shall mean the commercial condominium regime created pursuant to the Declaration, including the Building and the Land.
Condominium Act shall mean Article 9-B (Condominium Act) of the New York Real Property Law (Section 339-d et seq.).
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Condominium Board shall mean the nine (9) member Board of Managers of the Condominium established by the terms of the Declaration and By-Laws.
Condominium Declaration shall mean 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 Registers Office on August 15, 2006, as CRFN 2006000460293, as amended by that certain First Amendment to the Declaration (the First Amendment ), which First Amendment was dated as of January 29, 2007, and recorded in the Registers Office on February 8, 2007 as CRFN 2007000075106, and further amended by that certain Second Amendment to the Declaration (the Second Amendment ), which Second Amendment was dated October 11, 2007, and recorded in the Registers Office on January 8, 2008 as CRFN 2008000008735, and further amended by that certain Third Amendment to the Declaration (the Third Amendment ), which Third Amendment was dated March 2009, and recorded in the Registers Office on as CRFN , including the By-Laws and Rules and Regulations thereunder.
Condominium Documents shall mean collectively, (i) the Condominium Declaration, and all the terms and provisions thereof, and (ii) the Bylaws adopted by the Condominium Association pursuant to the Declaration (the Bylaws ) and (iii) any rules or regulations adopted under the Condominium Declaration or the Bylaws, in each case, now or hereafter in effect and as same may be amended, restated, modified or supplemented from time to time.
Condominium Expenses shall mean the allocated share of all expenses attributable to the management, operation, maintenance, repair and security of the Condominium, including the parking and landscaped areas, which are incurred by or payable by the owner of the Leased Premises (including the undivided interest in the limited common elements and common elements of the Condominium) pursuant to the Condominium Declaration or in accordance therewith, without mark-up by Landlord.
Costs of a Person or associated with a specified transaction shall mean all reasonable costs and expenses incurred by such Person or associated with such transaction, including without limitation, reasonable attorneys fees and expenses, court costs, brokerage fees, escrow fees, title insurance premiums, customary mortgage commitment fees and/or points, and recording fees and transfer taxes, as the circumstances require.
CPI means the index known as United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index, All Urban Consumers, United States City Average, All Items, (1982-84=100) or the successor index that most closely approximates the CPI. If the CPI shall be discontinued with no successor or comparable successor index, Landlord and Tenant shall attempt to agree upon a substitute index or formula, but if they are unable to so agree, then the matter shall be determined by arbitration in accordance with the rules of the American Arbitration Association then prevailing in New York City. Any decision or award resulting from such arbitration shall be final and binding upon Landlord and Tenant and judgment thereon may be entered in any court of competent jurisdiction.
Default Rate shall mean the Default Rate as defined in Paragraph 7(a)(iv).
Default Termination Yield shall mean, with respect to any default termination of this Lease at any time prior to the Option Lapse Date, the amount set forth on
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Exhibit E annexed hereto for the applicable Lease Year in which this Lease is so terminated, as a result of foreclosure or otherwise.
Easement Agreement shall mean any conditions, covenants, restrictions, easements, declarations, licenses and other agreements listed as Permitted Encumbrances or as may hereafter affect the Leased Premises.
Environmental Law shall mean (a) whenever enacted or promulgated, any applicable federal, state and local law, statute, ordinance, rule, regulation, license, permit, authorization, approval, consent, court order, judgment, decree, injunction, code, requirement or agreement with any governmental entity, (i) relating to pollution (or the cleanup thereof), or the protection of air, water vapor, surface water, groundwater, drinking water supply, land (including land surface or subsurface), plant, aquatic and animal life from injury caused by a Hazardous Substance or (ii) concerning exposure to, or the use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation, processing, handling, labeling, production, disposal or remediation of Hazardous Substances, Hazardous Conditions or Hazardous Activities, in each case as amended and as now or hereafter in effect, and (b) any common law or equitable doctrine (including, without limitation, injunctive relief and tort doctrines such as negligence, nuisance, trespass and strict liability) that may impose liability or obligations for injuries or damages due to or threatened as a result of the presence of, exposure to, or ingestion of, any Hazardous Substance. The term Environmental Law includes, without limitation, the federal Comprehensive Environmental Response Compensation and Liability Act of 1980, the Superfund Amendments and Reauthorization Act, the federal Water Pollution Control Act, the federal Clean Air Act, the federal Clean Water Act, the federal Resources Conservation and Recovery Act of 1976 (including the Hazardous and Solid Waste Amendments to RCRA), the federal Solid Waste Disposal Act, the federal Toxic Substance Control Act, the federal Insecticide, Fungicide and Rodenticide Act, the federal Occupational Safety and Health Act of 1970, the federal National Environmental Policy Act and the federal Hazardous Materials Transportation Act, each as amended and as now or hereafter in effect and any similar state or local Law.
Environmental Violation shall mean (a) any direct or indirect discharge, disposal, spillage, emission, escape, pumping, pouring, injection, leaching, release, seepage, filtration or transporting of any Hazardous Substance at, upon, under, onto or within the Leased Premises, or from the Leased Premises to the environment, in violation of any Environmental Law or in excess of any reportable quantity established under any Environmental Law or which could result in any liability to Landlord, Tenant or Lender, any Federal, state or local government or any other Person for the costs of any removal or remedial action or natural resources damage or for bodily injury or property damage, (b) any deposit, storage, dumping, placement or use of any Hazardous Substance at, upon, under or within the Leased Premises or which extends to any part of the Condominium in violation of any Environmental Law or in excess of any reportable quantity established under any Environmental Law or which could result in any liability to any Federal, state or local government or to any other Person for the costs of any removal or remedial action or natural resources damage or for bodily injury or property damage, (c) the abandonment or discarding of any barrels, containers or other receptacles containing any Hazardous Substances in violation of any Environmental Laws, (d) any activity, occurrence or condition which could result in any liability, cost or expense to Landlord or Lender or any other owner or occupier of the Leased Premises, or which could result in a creation of a lien on the Leased Premises under any Environmental Law, or (e) any violation of or noncompliance with any Environmental Law.
Equipment shall mean the Equipment as defined in Paragraph 1.
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Event of Default shall mean an Event of Default as defined in Paragraph 22(a).
FMRV shall mean the fair market rental value of the Leased Premises as of the first day of the relevant Renewal Term as determined in accordance with the procedure specified in Paragraph 29.
Federal Funds shall mean federal or other immediately available funds which at the time of payment are legal tender for the payment of public and private debts in the United States of America.
Governing Documents shall mean the Governing Documents as defined in Paragraph 4(c) hereof.
Ground Lease shall mean that certain Agreement of Lease with respect to the Land and Building of which the Leased Premises is a part, by and between New York Times Building LLC and 42 nd St. Development Project, Inc., a subsidiary of New York State Urban Development Corporation d/b/a Empire State Development Corporation ( ESDC ), a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, dated as of December 12, 2001, as amended by letter dated April 18, 2004, and as otherwise heretofore amended, restated or assigned and as hereafter amended from time to time.
Guarantor shall mean, collectively, (i) The New York Times Company, a New York corporation and (ii) The New York Times Sales Company, a Massachusetts business trust.
Guaranty shall mean the Guaranty and Suretyship Agreement dated as of the date hereof from Guarantor to Landlord guaranteeing the payment and performance by Tenant of all of Tenants obligations under the Lease.
Hazardous Activity means any activity, process, procedure or undertaking which directly or indirectly (a) procures, generates or creates any Hazardous Substance; (b) causes or results in (or threatens to cause or result in) the release, seepage, spill, leak, flow, discharge or emission of any Hazardous Substance into the environment (including the air, ground water, watercourses or water systems), (c) involves the containment or storage of any Hazardous Substance; or (d) would cause the Leased Premises or any portion thereof to become a hazardous waste treatment, recycling, reclamation, processing, storage or disposal facility within the meaning of any Environmental Law.
Hazardous Condition means any condition which would support any claim or liability under any Environmental Law, including the presence of underground storage tanks.
Hazardous Substance means (i) any substance, material, product, petroleum, petroleum product, derivative, compound or mixture, mineral (including asbestos), chemical, gas, medical waste, or other pollutant, in each case whether naturally occurring, man-made or the by-product of any process, that is toxic, harmful or hazardous or acutely hazardous to the environment or public health or safety or (ii) any substance supporting a claim under any Environmental Law, whether or not defined as hazardous as such under any Environmental Law. Hazardous Substances include, without limitation, any toxic or hazardous waste, pollutant, contaminant, industrial waste, petroleum or petroleum-derived substances or waste, radon, radioactive materials, asbestos, asbestos containing materials, microbial matter (including but not limited to mold, mildew and other fungi or bacterial matter which reproduces through the release
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of spores or the splitting of cells), urea formaldehyde foam insulation, lead and polychlorinated biphenyls.
Impositions shall mean the Impositions as defined in Paragraph 9(a).
Improvements shall mean the Improvements as defined in Paragraph 1.
Indemnitee shall mean an Indemnitee as defined in Paragraph 15.
Insurance Requirements shall mean the requirements of all insurance policies required to be maintained in accordance with this Lease.
Landlord Mortgage shall mean that certain Wrap-Around Mortgage, Assignment of Rents, Security Agreement and Fixture Filing dated as of the date hereof, by and among Tenant, as Mortgagor, and ESDC and Landlord, as co-Mortgagees, as security, for the performance of Tenants obligations under this Lease, as same may be hereafter amended, modified, supplemented, assigned or consolidated.
Law shall mean any constitution, statute, rule of law, code, ordinance, order, judgment, decree, injunction, rule, regulation, policy, requirement or administrative or judicial determination, even if unforeseen or extraordinary, of every duly constituted governmental authority, court or agency, now or hereafter enacted or in effect.
Lease shall mean this Lease Agreement.
Lease Year shall mean, with respect to the first Lease Year, the period commencing on the Commencement Date and ending at midnight on the last day of the twelfth (12th) full consecutive calendar month following the month in which the Commencement Date occurred, and each succeeding twelve (12) month period during the Term.
Leased Premises shall mean the Leased Premises as defined in Paragraph 1.
Legal Requirements shall mean the requirements of all present and future Laws (including but not limited to Environmental Laws and Laws relating to accessibility to, usability by, and discrimination against, disabled individuals) and all covenants, restrictions and conditions now or hereafter of record which may be applicable to Tenant or to any of the Leased Premises, or to the use, manner of use, occupancy, possession, operation, maintenance, alteration, repair or restoration of any of the Leased Premises, even if compliance therewith necessitates structural changes or improvements or results in interference with the use or enjoyment of any of the Leased Premises or requires Tenant to carry insurance other than as required by this Lease.
Lender shall mean any Person (and its respective successors and assigns) which may, on or after the date hereof, make a Loan to Landlord or be the holder of a Note.
Letter of Credit shall have the meaning set forth in Paragraph 37 hereof
Limited Remedy Default shall have the meaning set forth in Paragraph 22(c) hereof.
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Loan shall mean any loan made by one or more Lenders to Landlord, which loan is secured by a Mortgage and an Assignment and evidenced by a Note, but shall not include the Security Documents.
Monetary Obligations shall mean Rent and all other sums payable by Tenant under this Lease to Landlord, to any third party on behalf of Landlord or to any Indemnitee.
Moodys shall mean Moodys Investor Services, Inc.
Mortgage shall mean any mortgage, deed of trust or other security instrument from Landlord to a Lender which (a) encumbers any of the Leased Premises or Landlords interest therein and (b) secures Landlords obligation to repay a Loan, as the same may be amended, supplemented or modified.
Net Award shall mean (a) the entire award payable to Landlord or Lender by reason of a Condemnation whether pursuant to a judgment or by agreement or otherwise, or (b) the entire proceeds of any insurance required under clauses (i), (ii) (to the extent payable to Landlord or Lender), (iv), (v) or (vi) of Paragraph 16(a), as the case may be, less any expenses incurred by Landlord and Lender in collecting such award or proceeds.
Note shall mean any promissory note evidencing Landlords obligation to repay a Loan, as the same may be amended, supplemented or modified.
NYTC Board shall mean the five (5) member Board of Managers of the Unit established by the terms of the Declaration and By-Laws.
Option Exercise Notice shall mean Option Exercise Notice as defined in Paragraph 34.
Option Lapse Date shall mean, as applicable, (A) with respect to Tenants obligation to deliver the Beneficial Transfer Documents and Landlords ability to exercise its remedy in the case of a Limited Remedy Default under Paragraph 22(c): (i) the last day that Tenant could have timely delivered the Option Notice to Landlord under the terms of Paragraph 34(a), if Tenant fails to so timely deliver said Option Notice pursuant to Paragraph 34(a) hereof; time being of the essence with respect to such date or (ii) the Purchase Date, if Tenant does timely deliver the Option Notice Pursuant to Paragraph 34(a) hereof, but thereafter Tenant defaults in its obligation to close on the Purchase Option on the Purchase Date pursuant to Paragraph 20 hereof; time being of the essence with respect to such date, and (B) with respect to the application of the term Option Lapse Date under all other provisions of this Lease, including, without limitation, Paragraphs 9, 15, 16(b), 18, 22(a), 23, 31(b), 33, and 34, the earlier to occur of (i) the date that Tenant actually delivers the Beneficial Transfer Documents to Landlord or (ii) the date that Landlord forecloses upon Tenants beneficial interest in the Leased Premises.
Option Price shall mean an amount equal to (i) $250,000,000.00, plus (ii) the applicable Prepayment Premium which Landlord will be required to pay in prepaying any Loan with the proceeds of the Option Price, if, under the circumstances, Tenant is required to pay such Prepayment Premium under the terms of this Lease (as more particularly set forth in Paragraphs 31(b) and 34(a) hereof).
Partial Casualty shall mean any Casualty which does not constitute a Termination Event.
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Partial Condemnation shall mean any Condemnation which does not constitute a Termination Event.
Permitted Encumbrances shall mean (i) the WPC II Mortgage and (ii) those covenants, restrictions, reservations, liens, conditions and easements and other encumbrances, other than any Mortgage or Assignment, listed on Exhibit C hereto (but such listing shall not be deemed to revive any such encumbrances that have expired or terminated or are otherwise invalid or unenforceable).
Person shall mean an individual, partnership, limited liability company, association, corporation or other entity.
Prepayment Premium shall mean any payment required to be made by Landlord to a Lender under a Note or any other document evidencing or securing a Loan (other than payments of principal and/or interest which Landlord is required to make under a Note or a Mortgage) solely by reason of any prepayment or defeasance by Landlord of any principal due under a Note or Mortgage, and which may without limitation take the form of (a) a make whole or yield maintenance clause requiring a prepayment premium or (b) a defeasance payment (such defeasance payment to be an amount equal to the positive difference between (i) the total amount required to defease a Loan and (ii) the outstanding principal balance of the Loan as of the date of such defeasance plus reasonable Costs of Landlord and Lender or (c) breakage costs or (d) any combination of clauses (a), (b) and (c) above.
Present Value of any amount shall mean such amount discounted by a rate per annum which is the lower of (a) the Prime Rate at the time such present value is determined or (b) six percent (6%) per annum.
Prime Rate shall mean the annual interest rate as published, from time to time, in The Wall Street Journal as the Prime Rate in its column entitled Money Rate. The Prime Rate may not be the lowest rate of interest charged by any large U.S. money center commercial banks and Landlord makes no representations or warranties to that effect. In the event The Wall Street Journal ceases publication or ceases to publish the Prime Rate as described above, the Prime Rate shall be the average per annum discount rate (the Discount Rate ) on ninety-one (91) day bills ( Treasury Bills ) issued from time to time by the United States Treasury at its most recent auction, plus three hundred (300) basis points. If no such 91-day Treasury Bills are then being issued, the Discount Rate shall be the discount rate on Treasury Bills then being issued for the period of time closest to ninety-one (91) days.
Renewal Term shall mean Renewal Term as defined in Paragraph 5.
Rent shall mean, collectively, Basic Rent, Additional Rent and Supplemental Rent, if any.
Requisition shall mean any temporary requisition or confiscation of the use or occupancy of any of the Leased Premises by any governmental authority, civil or military, whether pursuant to an agreement with such governmental authority in settlement of or under threat of any such requisition or confiscation, or otherwise.
S&P shall mean Standard and Poors Corporation.
Security Documents shall mean collectively, (i) the Landlord Mortgage, and (ii) the Assignment of Severance Lease.
Security Deposit shall have the meaning set forth in Paragraph 37 hereof
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Severance Lease shall mean that certain Agreement of Sublease (NYC) dated as of December 12, 2001 by and between New York Times Building LLC ( NYTB ), as landlord, and NYT Real Estate Company LLC, as tenant, a memorandum of which was recorded October 24, 2003 as CRFN 2003000433125 in the Office of the City Register (the Initial NYTC Sublease ), which Initial NYTC Sublease was amended by First Amendment to Agreement of Sublease (NYT) dated as of 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 (the First Amendment ) and by Second Amendment to Agreement of Sublease (NYT) (the Second Amendment ) dated as of 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 as amended by Third Amendment to Agreement of Sublease (NYT) (the T hird Amendment ), dated as of March , 2009 between landlord and tenant, as same may be further amended from time to time. Pursuant to t hat certain Assignment and Assumption Agreement, dated as of August 15, 2006, and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 200600644732, NYTB assigned to 42 nd Street Development Project, Inc. ( 42DP ) all of its right, title and interest, as landlord, in and to the Severance Lease.
State shall mean the State of New York.
Subsidiary(ies) of a Person means a corporation, partnership, limited liability company, or other entity in which that Person directly or indirectly owns or controls the shares of stock or other equity interests having ordinary voting power to elect a majority of the board of directors (or appoint other comparable managers) of such corporation, partnership, limited liability company, or other entity.
Surviving Obligations shall mean any obligations of Tenant under this Lease, actual or contingent, which arise on or prior to the expiration or prior termination of this Lease or which survive such expiration or termination by their own terms.
Taking shall mean (a) any taking or damaging of all or a portion of any of the Leased Premises (i) in or by condemnation or other eminent domain proceedings pursuant to any Law, general or special, or (ii) by reason of any agreement with any condemnor in settlement of or under threat of any such condemnation or other eminent domain proceeding, or (iii) by any other means, or (b) any de facto condemnation. The Taking shall be considered to have taken place as of the later of the date actual physical possession is taken by the condemnor, or the date on which the right to compensation and damages accrues under the law applicable to the Leased Premises.
Tenant Group shall mean The New York Times Company and its Subsidiaries if and for so long as each such Person shall be part of the group for the purpose of reporting financial positions and results on a consolidated basis.
Tenants Personal Property shall mean all furniture, furnishings equipment and other personal property of Tenant, 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 Improvements and any other personal property owned by Tenant or a sublessee of Tenant or other occupant of the Leased Premises; provided that in no case shall Tenants Personal Property include fixtures or built-in heating, ventilating, air-conditioning, and electrical equipment (including power panels) to be utilized in connection with the operation of the Leased Premises.
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Term shall mean the Term as defined in Paragraph 5.
Termination Date shall mean Termination Date as defined in Paragraph 18.
Termination Event shall mean a Termination Event as defined in Paragraph 18.
Termination Notice shall mean Termination Notice as defined in Paragraph 18(a).
Threshold Amount shall mean, (i) with respect to Paragraph 4(c), $10,000,000; (ii) with respect to Paragraph 10(d), $5,000,0000; (iii) with respect to Paragraph 13(a), $5,000,000; and (iv) with respect to Paragraphs 17 and 19, $5,000,0000; provided that the Threshold Amount shall be increased, effective as of each Basic Rent Adjustment Date, by the increase in the CPI over the prior Lease Year.
True Assignment shall mean an assignment of the Severance Lease from Tenant to Landlord, substantially in the form annexed hereto as Exhibit I , which shall expressly provide that it is intended to and shall be deemed for all purposes to transfer all of Tenants right, title and beneficial interest in the Leased Premises to Landlord in consideration of Tenants failure to pay the Option Price and not merely as a part of a financing transaction.
Warranties shall mean Warranties as defined in Paragraph 3(d).
WPC II Mortgage shall mean that certain Mortgage, Assignment of Rents, Security Agreement and Fixture Filing dated as March , 2009, by and between Tenant, as Mortgagor, and 620 Eighth Lender NYT (NY) Limited Partnership as Mortgagee, as security for the repayment of a promissory note in the original principal amount of $175,000,000.00, as same may be hereafter amended, modified, supplemented, restated, assigned, split, wrapped or consolidated.
Work shall mean Work as defined in Paragraph 13(b).
3. Title and Condition .
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4. Use of Leased Premises; Quiet Enjoyment .
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5. Term .
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6. Basic Rent . Tenant shall pay to Landlord, as annual rent for the Leased Premises during the Term, the amounts determined in accordance with Exhibit D hereto ( Basic Rent ), payable in advance for the next calendar month, commencing on the twenty-fifth (25 th ) day of the first month following the date hereof and continuing on the same day of each month thereafter during the Term which shall be payable as set forth in said Exhibit D . The date that each payment of Basic Rent is due is hereinafter referred to as a Basic Rent Payment Date . Each such payment of Basic Rent shall be made in Federal Funds on each Basic Rent Payment Date to Landlord and/or to such one or more other Persons (including directly to a Lender under a cash management system, lock box account, or otherwise), pursuant to wire transfer instructions delivered to Tenant from time to time at such addresses and in such proportions as Landlord may direct by fifteen (15) days prior written notice to Tenant (in which event Tenant shall give Landlord notice of each such payment concurrent with the making thereof); provided further, if the WPC II Mortgage is assigned to a Lender or Landlord otherwise enters into a Loan, then Tenant shall have the right, upon at least fifteen (15) days prior written notice to Landlord, to voluntarily pay a portion of the Basic Rent sufficient to satisfy the monthly debt service under said Loan directly to such Lender (in which event Tenant shall give Landlord notice of each such payment concurrent with the making thereof).
7. Additional Rent .
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8. Net Lease; Non-Terminability .
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9. Payment of Impositions .
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10. Compliance with Laws and Easement Agreements, Environmental Matters .
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11. Liens; Recording .
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12. Maintenance and Repair .
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13. Alterations and Improvements .
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14. Permitted Contests . Notwithstanding any other provision of this Lease, Tenant shall not be required to (a) pay any Imposition, (b) comply with any Legal Requirement, (c) discharge or remove any lien referred to in Paragraph 11 or 13 or (d) take any action with respect to any encroachment, violation, hindrance, obstruction or impairment referred to in Paragraph 12(b) (such non-compliance with the terms hereof being hereinafter referred to collectively as Permitted Violations ) and may dispute or contest the same, so long as at the time of such contest no Event of Default exists and so long as Tenant shall contest, in good faith, the existence, amount or validity thereof, the amount of the damages caused thereby, or the extent of its or Landlords liability therefor by appropriate proceedings which shall operate during the pendency thereof to prevent or stay (i) the collection of, or other realization upon, the Permitted Violation so contested, (ii) the sale, forfeiture or loss of any of the Leased Premises or any Rent to satisfy or to pay any damages caused by any Permitted Violation, (iii) any interference with the use or occupancy of any of the Leased Premises, (iv) any interference with the payment of any Rent, or (v) the cancellation or increase in the rate of any insurance policy (unless Tenant agrees in writing to pay such increase) or a statement by the carrier that coverage will be denied or (vi) the enforcement or execution of any injunction, order or Legal Requirement with respect to the Permitted Violation. Tenant shall provide Landlord security which is satisfactory, in Landlords reasonable judgment, to assure that such Permitted Violation is corrected, including all Costs, interest and penalties that may be incurred or become due in connection therewith. While any proceedings which comply with the requirements of this Paragraph 14 are pending and the required security is held by Landlord, Landlord shall not have the right to correct any Permitted Violation thereby being contested unless Landlord is required by law to correct such Permitted Violation and Tenants contest does not prevent or stay such requirement as to Landlord. Each such contest shall be promptly and diligently prosecuted by Tenant to a final conclusion, except that Tenant, so long as the conditions of this Paragraph 14 are at all times complied with, has the right to attempt to settle or compromise such contest through negotiations. Tenant shall pay any and all losses, judgments, decrees and Costs in connection with any such contest and shall, promptly after the final determination of such contest, fully pay and discharge the amounts which shall be levied, assessed, charged or imposed or be determined to be payable therein or in connection therewith, together with all penalties, fines, interest and Costs thereof or in connection therewith, and perform all acts the performance of which shall be ordered or decreed as a result thereof. No such contest shall (i) subject Landlord to the risk of any criminal liability or any risk of civil fine, penalty or liability for which Tenant has not agreed in writing to reimburse Landlord, or (ii) shall risk forfeiture of Tenants or Landlords interest in the Severance Lease or the estate created thereunder.
15. Indemnification .
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16. Insurance .
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17. Casualty and Condemnation .
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18. Termination Events .
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19. Restoration .
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20. Procedures Upon Purchase .
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21. Assignment and Subletting, Prohibition Against Leasehold Financing
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22. Events of Default .
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23. Remedies and Damages upon Default .
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(B) Landlord may terminate Tenants right of possession (but not this Lease) and may repossess the Leased Premises by any available legal process without thereby releasing Tenant from any liability hereunder and without demand or notice of any kind to Tenant and without terminating this Lease.
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24. Notices . All notices, demands, requests, consents, approvals, offers, statements and other instruments or communications required or permitted to be given pursuant to the provisions of this Lease 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 nationally recognized 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 as follows: Notices sent to Landlord shall be sent 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 c/o The New York Times Company, 620 Eighth Avenue, New York, New York 10018 to the attention of General Counsel and Chief Financial Officer (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. For the purposes of this Paragraph, any party may substitute another address stated above (or substituted by a previous notice) for its address by giving fifteen (15) days notice of the new address to the other party, in the manner provided above. Tenant covenants and agrees to promptly deliver to Landlord a copy of any written notice or demand (i) received by Tenant alleging any default or potential default by Tenant under any of the Governing Documents or (ii) given by Tenant to any other Person alleging any default or potential default by such Person under any of the Governing Documents. Tenant shall provide copies of any written notice claiming a default by Tenant under (i) any of the Governing Documents, and (ii) any other agreement with governmental or quasi- governmental authority with respect to the Condominium or the Leased Premises within three (3) business days of receipt thereof by Tenant unless Landlord is a party entitled to direct notice under the term of such document.
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25. Estoppel Certificate . At any time upon not less than fifteen (15) days prior written request by either Landlord or Tenant (the Requesting Party ) to the other party (the Responding Party ), the Responding Party shall deliver to the Requesting Party a statement in writing, executed by an authorized officer of the Responding Party, certifying (a) that, except as otherwise specified, this Lease is unmodified and in full force and effect, (b) the dates to which Basic Rent, Additional Rent and all other Monetary Obligations have been paid, (c) that, to the knowledge of the signer of such certificate and except as otherwise specified, no default by either Landlord or Tenant exists hereunder, (d) such other matters directly related to this Lease as the Requesting Party may reasonably request, and (e) if Tenant is the Responding Party that, except as otherwise specified, there are no proceedings pending against Tenant before or by any court or administrative agency which, if adversely decided, would materially and adversely affect the financial condition and operations of Tenant. Any such statements by the Responding Party may be relied upon by the Requesting Party, any Person whom the Requesting Party notifies the Responding Party in its request for the Certificate is an intended recipient or beneficiary of the Certificate, any Lender or their assignees and by any prospective purchaser or mortgagee of any of the Leased Premises. Any certificate required under this Paragraph 25 and delivered by Tenant shall provide that the person signing same is duly authorized to do so, is familiar with the Leased Premises and this Lease, and has made such reasonable examination or investigation as is necessary to enable him to express an informed opinion as to the subject matter of such certificate.
26. Surrender . Upon the expiration or earlier termination of this Lease, Tenant shall peaceably leave and surrender the Leased Premises to Landlord in the same condition in which the Leased Premises was at the commencement of this Lease, except as repaired, rebuilt, restored, altered, replaced or added to as permitted or required by any provision of this Lease, ordinary wear and tear excepted. Upon such surrender, Tenant shall (a) remove from the Leased Premises all of Tenants Personal Property and any other personalty which is owned by third parties other than Landlord and all Alterations required to be removed pursuant to Paragraph 13 hereof and (b) repair any damage caused by such removal. Property not so removed shall become the property of Landlord, and Landlord may thereafter cause such property to be removed from the Leased Premises. The cost of removing and disposing of such property and repairing any damage to any of the Leased Premises caused by such removal shall be paid by Tenant to Landlord upon demand. Landlord shall not in any manner or to any extent be obligated to reimburse Tenant for any such property which becomes the property of Landlord pursuant to this Paragraph 26.
27. No Merger of Title . There shall be no merger of the leasehold estate created by this Lease with the fee estate in any of the Leased Premises by reason of the fact that the same Person may acquire or hold or own, directly or indirectly, (a) the leasehold estate created hereby or any part thereof or interest therein and (b) the fee estate in any of the Leased Premises or any part thereof or interest therein, unless and until all Persons having any interest in the interests described in (a) and (b) above which are sought to be merged shall join in a written instrument effecting such merger and shall duly record the same.
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28. Books and Records .
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29. Determination of Value .
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30. Non-Recourse as to Landlord . (a) Anything contained herein to the contrary notwithstanding, any claim based on or in respect of any liability of Landlord under this Lease shall be limited to actual damages and shall be enforced only against the Leased Premises and not against any other assets, properties or funds of (i) Landlord, (ii) any director, officer, member, general partner, shareholder, limited partner, beneficiary, employee or agent of Landlord or any members or general partners of Landlord (or any legal representative, heir, estate, successor or assign of any thereof), (iii) any predecessor or successor partnership or corporation (or other entity) of Landlord or any of its general partners, shareholders, officers, directors, members, employees or agents, either directly or through Landlord or its general partners, shareholders, officers, directors, employees or agents or any predecessor or successor partnership or corporation (or other entity), or (iv) any Person affiliated with any of the foregoing, or any director, officer, employee or agent of any thereof.
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31. Financing .
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32. Subordination, Non-Disturbance and Attornment; Landlords Waiver .
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33. Tax Treatment; Reporting . (a) Notwithstanding any other provision of this Lease, the parties hereto hereby agree that it is the intent of the parties to create, and this Lease shall be treated as, a financing Lease in accordance with the terms of this Paragraph 33 from the Commencement Date up to the Option Lapse Date and thereafter as a true lease in accordance with the terms of this Paragraph 33. Landlord and Tenant acknowledge and agree that commencing as of the Commencement Date of this Lease and continuing until the Option Lapse Date each of Landlord and Tenant shall treat the transactions pursuant to the PSA, together with the transactions pursuant to this Lease and the Security Documents, for all accounting and federal, state and local tax purposes (including, without limitation, income taxes) as a loan by Landlord to Tenant in the amount of the Acquisition Cost, and not as a sale and leaseback of the Leased Premises. Consistent with the immediately preceding sentence, Landlord and Tenant acknowledge and agree that for all accounting and federal, state and local tax purposes (a) Tenant shall be treated as the beneficial owner of the Leased Premises and the Equipment (subject to Landlords secured interest therein), and eligible to claim depreciation and amortization deductions with respect to the Leased Premises under Section 167 or 168 of the Internal Revenue Code of 1986, as amended (the Code ); (b) the Basic Rent and any Supplemental Rent shall be treated as interest expense of Tenant and interest income of Landlord, (c) Landlord and Tenant shall treat the Option Price, if paid, as (i) a repayment of loan principal up to the amount of the Acquisition Cost and (ii) interest expense of Tenant and interest income of Landlord 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 Landlord and as an expense by the Tenant in accordance with Code Sections 1272 et seq ; and Tenant agrees to prepare the applicable Form 1099-OID reports in accordance with such OID Schedule. Landlord and Tenant agree that (x) as soon as practicable after the execution and delivery of this Lease, 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 immediately preceding sentence, and (y) in the event of any dispute between the Landlord and Tenant 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 Tenant shall settle such dispute and determine such amounts and such determination of such firm shall be final and binding upon Landlord and Tenant. For the period up to the Option Lapse Date Landlord and Tenant 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 this Paragraph 33(a) and shall not take any position inconsistent with the provisions of this Paragraph 33(a) with any income tax or other governmental authority; provided that, nothing in this Lease shall be deemed to constitute a guaranty, warranty or representation by either Landlord or Tenant as to the proper treatment of the transactions under the PSA or this Lease for any income tax purpose or any other purpose.
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34. Option to Purchase .
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35. Right of First Offer .
(a) If Landlord decides to offer the Leased Premises for sale to any third party, Landlord shall first offer by written notice (the ROFO Offer ) to sell the Leased Premises to Tenant for a specific purchase price (the ROFO Purchase Price ) and, upon such other material economic and non-economic terms and conditions as Landlord, in Landlords sole discretion, would otherwise intend to offer to sell the Leased Premises to any third party, prior to Landlords offering to sell the Leased Premises to any such third party; except that the terms and conditions of any such sale to Tenant shall be (i) consistent with the terms and provisions of this Paragraph 35 and (ii) the sale to Tenant shall be AS IS, WHERE IS, without representation or warranty by Landlord. If Landlord shall make the ROFO Offer, then, whether or not Tenant has accepted the ROFO Offer, Landlord shall have the unilateral right, in Landlords sole discretion, to revoke the ROFO Offer if any monetary Event of Default exists under this Lease on the date on which Landlord shall give, or would otherwise be required to give, Tenant the ROFO Offer.
(b) Tenant shall have the right to accept the ROFO Offer only by giving Landlord written notice of such acceptance (the ROFO Notice ) within fifty (50) days after delivery by Landlord to Tenant of the ROFO Offer. Time shall be of the essence with respect to said fifty (50) day period and delivery of the ROFO Notice by Tenant . Tenant shall thereafter have forty-five (45) days to arrange financing and complete due diligence, after which a non-refundable 3% good faith deposit will be posted, and the transaction must close within twenty (20) days thereafter. If Tenant shall accept the ROFO Offer, Tenant shall execute any documentation reasonably required by Landlord to reflect Tenants acceptance of the ROFO Offer.
(c) If Tenant does not accept, or fails to accept, the ROFO Offer in accordance with the provisions herein, Landlord shall be under no further obligation with respect to such ROFO Offer pursuant to the terms contained herein, and except as expressly hereinafter
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provided below in this Paragraph 35(c), Tenant shall be deemed to have forever waived and relinquished its right to such ROFO Offer and Landlord shall thereafter be entitled to market the Leased Premises to others upon such terms and conditions as Landlord in its sole discretion may determine, subject to the following: (1) if the price (the Third Party Price ) for which Landlord intends to enter into a binding contract with a third party (a Third Party Contract ) to sell the Leased Premises is less than ninety five percent (95%) of the ROFO Purchase Price offered to Tenant or (2) Landlord does not consummate the closing of such Third Party Contract within one hundred eighty (180) days after the last day that Tenant could have timely accepted such ROFO Offer under Paragraph 35(b) above, then Landlord shall be required to again offer the Leased Premises to Tenant at the Third Party Price and Tenant shall have thirty (30) days in which to accept the Third Party Price and, if accepted, shall thereafter close in accordance with the terms of the Third Party Contract . Tenants right under this Paragraph 35 shall apply to each subsequent decision by Landlord or any successor Landlord to sell its interest in the Leased Premises, unless Tenant had previously deliver a ROFO Notice hereunder and thereafter defaulted in its obligation to close the transaction on the applicable purchase date which default resulted in a termination by Landlord of the applicable contract.
(d) If Tenant does not timely deliver the ROFO Notice and the Leased Premises are transferred to a third party, Tenant will attorn to such third party as Landlord so long as such third party and Landlord notify Tenant in writing of such transfer. At the request of Landlord, Tenant will execute such documents confirming the agreement referred to above and such other agreements as Landlord may reasonably request, provided that such agreements do not increase the liabilities and obligations of Tenant hereunder or decrease Tenants rights and benefits hereunder. If Tenant accepts the ROFO Offer under Paragraph 35(b) or (c) above and thereafter defaults in it s obligation to close such purchase transaction, then Tenant shall be deemed to have forever waived and relinquished its right to acquire the Leased Premises under this Paragraph 35 and this Paragraph 35 shall be of no further force or effect (and Tenant shall, within ten (10) days after Landlords request therefor, deliver an instrument in form reasonably satisfactory to Landlord confirming the aforesaid waiver and deletion of this Paragraph 35 from the Lease, but no such instrument shall be necessary to make the provisions hereof effective), and Landlord shall thereafter be entitled to market the Leased Premises to others upon such terms and conditions as Landlord in its sole discretion may determine at any time thereafter.
(e) Notwithstanding anything to the contrary contained herein, the provisions of this Paragraph 35 shall not apply to or prohibit (i) any mortgaging, subjection to deed of trust or other collateral assignment or hypothecation of Landlords interest in the Leased Premises, (ii) any sale of the Leased Premises pursuant to a private power of sale under or judicial foreclosure of any Mortgage to which Landlords interest in the Leased Premises is now or hereafter subject, (iii) any transfer of Landlords interest in the Leased Premises to a Lender, beneficiary under deed of trust or other holder of a security interest therein or their designees by deed in lieu of foreclosure, (iv) any transfer of the Leased Premises to any governmental or quasi-governmental agency with power of condemnation, (v) any transfer of the Leased Premises or any interest therein or in Landlord to any of the following entities (each, a CPA Entity ): Corporate Property Associates 14 Incorporated, Corporate Property Associates 15, Incorporated, Corporate Property Associates 16-Global Incorporated, Corporate Property Associates 17-Global Incorporated or CPA 17 Limited Partnership, or any combination thereof or any of their respective direct or indirect subsidiaries, or to any entity for whom W.P. Carey & Co. LLC or
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any of its affiliates or subsidiaries provides management or advisory services or investment advice, (vi) a transfer to any Person to whom a CPA Entity sells all or substantially all of its assets or equity interests (viii) any transfer of the Leased Premises to any of the successors or assigns of any of the Persons referred to in the foregoing clauses (i) through (iv).
(f) If the Leased Premises is purchased by Tenant pursuant to this Paragraph 35, Landlord need not convey any better title thereto than that which was conveyed to Landlord, and Tenant shall accept such title, subject, however, to the Permitted Encumbrances and to all other liens, exceptions and restrictions on, against or relating to any of the Leased Premises and to all applicable Laws, except that Landlord shall cause to be removed of record the lien of and security interest created by any Mortgage (including the Landlord Mortgage) or assignment of leases and rents and liens, exceptions and restrictions on, against or relating to the Leased Premises which have been created by or resulted solely from acts of Landlord after the date of this Lease, unless the same are Permitted Encumbrances or customary utility easements benefiting the Leased Premises or were created with the written consent of Tenant or the Condominium Board or as a result of a default by Tenant under this Lease.
(g) Upon the date fixed for a purchase of the Leased Premises pursuant to this Paragraph 35 (or such other date mutually acceptable to Landlord and Tenant but in no event later than the date specified in the Third Party Contract, if applicable (the Purchase Date ), Tenant shall pay to Landlord, or to any Person to whom Landlord directs payment, the balance of the ROFO Purchase Price and all other sums payable by Tenant under the ROFO Offer, in Federal Funds, and Landlord shall execute and deliver to Tenant or its designee (i) an assignment of the Severance Lease which describe the Leased Premises being conveyed and conveys the title thereto as provided in Paragraph 35(f) above, (ii) a termination of this Lease and a termination of the memorandum of lease in recordable form, and (iii) such other instruments as shall be necessary to transfer the Leased Premises to Tenant or its designee. If on the Purchase Date any Monetary Obligations remain outstanding Tenant shall pay to Landlord on the Purchase Date the amount of such Monetary Obligations. Upon the completion of such purchase by Tenant or its designee, this Lease and all obligations and liabilities of Tenant hereunder shall terminate, except any obligations of Tenant under this Lease, actual or contingent, which arise on or prior to the expiration or termination of this Lease or which survive such expiration or termination by their own terms. Any prepaid Monetary Obligations paid to Landlord shall be prorated as of the Purchase Date, and the prorated unapplied balance shall be deducted from the ROFO Purchase Price due to Landlord; provided, that no apportionment of any Impositions shall be made upon any such purchase.
(i) If the completion of the purchase by Tenant or its designee pursuant to this Paragraph 35 shall be delayed after the date scheduled for such purchase, Basic Rent and Additional Rent shall continue to be due and payable until completion of such purchase. The provisions of Paragraph 21(i) hereof regarding restrictions on a sale of the Leased Premises to a Tenant Competitor shall apply to this Paragraph 35.
63
36. Miscellaneous .
64
65
66
67
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
68
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly executed under seal as of the day and year first above written.
SIGNATURE PAGE TO LEASE AGREEMENT FOR NEW YORK TIMES
EXHIBIT A
PREMISES
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 Surveyors 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 Registers 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,
EXHIBIT A TO LEASE AGREEMENT FOR NEW YORK TIMES
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
|
|
|
|
|
|
|
|
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
MACHINERY AND EQUIPMENT
All fixtures, machinery, apparatus, equipment, fittings and appliances of every kind and nature whatsoever now or hereafter affixed or attached to or installed in any of the Leased Premises (except as hereafter provided), including all electrical, anti-pollution, heating, lighting (including hanging fluorescent lighting), incinerating, power, air cooling, air conditioning, humidification, sprinkling, plumbing, lifting, cleaning, fire prevention, fire extinguishing, security, and ventilating systems, devices and machinery and all engines, pipes, pumps, tanks (including exchange tanks and fuel storage tanks), motors, conduits, ducts, steam circulation coils, blowers, steam lines, compressors, oil burners, boilers, doors, windows, loading platforms, lavatory facilities, stairwells, fencing (including cyclone fencing), passenger and freight elevators, overhead cranes and garage units, together with all additions thereto, substitutions therefor and replacements thereof required or permitted by this Lease, but excluding Tenants Personal Property and all other personal property and all trade fixtures, machinery, office, manufacturing and warehouse equipment which are not necessary to the operation of the Building which constitutes part of the Leased Premises for the uses permitted under Paragraph 4(a) of this Lease.
EXHIBIT B TO LEASE AGREEMENT FOR NEW YORK TIMES
1
EXHIBIT C
PERMITTED ENCUMBRANCES
1. Local real estate taxes, PILOT and assessments, not yet due and payable.
2. State of facts as 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.
3. 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.
4. 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 (benefits premises described herein and other premises not a part of the transaction).
5. 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.
6. 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.
EXHIBIT C TO LEASE AGREEMENT FOR NEW YORK TIMES
1
7. 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 (Project Agreement), recorded 10/24/2003 as CRFN 2003000433116.
(a) Unrecorded Agreement dated as of 6/21/88 recited in Article I. Sec. 1.01.
8. Terms, Covenants, Conditions and Reversionary Rights contained in Deeds dated 9/8/2003 and recorded 10/24/2003 as CRFN 2003000433117 and CRFN 2003000433118.
9. 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.
10. Terms, Conditions and Provisions in Sublease, as evidenced by Memorandum of Agreement of Sublease between THE NEW YORK TIMES BUILDING LLC and NYT REAL ESTATE COMPANY LLC dated 12/12/2001, recorded 10/24/2003 as CRFN 2003000433125.
a) Lease Assignment (Assignment and Assumption Agreement ) made by and between THE NEW YORK TIMES BUILDING LLC (ASSIGNOR) and 42 ND ST. DEVELOPMENT PROJECT, INC. (assignee) dated as of 8/15/2006, recorded 11/20/2006 as CRFN 2006000644732, WHICH ASSIGNS Landlords Interest in Lease.
b) First Amendment to Agreement of Sublease (NYT) by and between 42 ND ST.. DEVEOPMENT PROJECT, INC. (landlord) and NYT REAL ESTATE COMPANY LLC (Tenant) dated as of 8/15/2006, recorded 11/20/2006 as CRFN 2006000644735, as further amended by Second Amendment to Agreement of Sublease (NYT) by and between 42 ND ST. DEVELOPMENT PROJECT, INC. (landlord) and NYT REAL ESTATE COMPANY LLC (Tenant) dated as of 1/29/2007, recorded 2/22/2007 as CRFN 2007000100157, and by Third Amendment to Agreement of Sublease (NYT) by and between 42 ND ST.
EXHIBIT C TO LEASE AGREEMENT FOR NEW YORK TIMES
2
DEVELOPMENT PROJECT, INC. (landlord) and NYT REAL ESTATE COMPANY LLC (tenant) dated as of March 6, 2009, to be recorded.
11. 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, which relates to among other things the Subway Entrance as shown on Survey aforementioned.
10. 12. Terms, provisions, covenants, restrictions, conditions and options contained in and rights and easements established by Declaration of Leasehold Condominium and By-Laws dated 8/4/2006, recorded 8/15/2006 as CRFN 2006000460293, as amended by First Amendment to Declaration dated 1/29/07 and recorded 2/8/07 as CRFN 2007000025106, Second amendment to Declaration dated 10/11/07 and recorded 1/8/08 as CRFN 2008000008234, Third Amendment to Declaration date 3/6/09 and to be recorded with the Register, and Fourth Amendment to Declaration dated as of 3/6/09 and to be recorded with the Register.
EXHIBIT C TO LEASE AGREEMENT FOR NEW YORK TIMES
3
EXHIBIT D
BASIC RENT PAYMENTS
1. Basic Rent .
(a) Initial Term . Subject to the adjustments provided for in Paragraph 2 below, Basic Rent payable in respect of the Term shall be at the per annum rate set forth on Schedule D-1 annexed hereto corresponding to the applicable Lease Year set forth thereon, payable monthly in advance, on each Basic Rent Payment Date, in equal installments as per said Schedule D-1 annexed hereto. Pro rata Basic Rent for the period from the date hereof through the last calendar day of March , 2009 shall be paid on the date hereof.
(b) Renewal Term . During any Renewal Term, Annual Basic Rent for each applicable Renewal Term shall be an amount equal to the greater of (x) 95% of FMRV as of the first day of the applicable Renewal Term, as determined in accordance with Paragraph 29 of this Lease, and (y) the Basic Rent then in effect for the immediately preceding Lease Year, shall be payable in equal monthly installments in advance. Only if the Basic Rent for any Renewal Term is determined to be the Basic Rent under clause (y) hereinabove ( Escalated Basic Rent ), then same shall be subject to the annual adjustments provided for in Paragraph 2, below. In the event of any extension of the Term of this Lease with respect to only a portion of the Leased Premises under Paragraph 5(c) of this Lease (the Retained Floors ), Basic Rent shall be based upon the same formula as hereinabove provided (i. e., the greater of (x) or (y)) but shall be pro rated at the same Basic Rent per rentable square foot multiplied by the percentage that the rentable square footage of the Retained Floors bear to the rentable square footage of the entire Leased Premises (including the Retained Floors but exclusive of the Cellar Space) as same is set forth in Paragraph 1 of this Lease.
2. Adjustments to Basic Rent . With respect to any Renewal Term, Escalated Basic Rent shall not be adjusted until the April 1 st first occurring after the first anniversary of the applicable Renewal Term. As of such April 1 st date and thereafter on each succeeding April 1 st during the applicable Renewal Term, Escalated Basic Rent shall be increased by 2.25% over the Basic Rent in effect for the most recent one (1) year period immediately preceding each of the foregoing dates (each such date being hereinafter referred to as the Basic Rent Adjustment Date ).
3. Effective as of a given Basic Rent Adjustment Date, Basic Rent payable under this Lease until the next succeeding Basic Rent Adjustment Date shall be the Basic Rent in effect after the adjustment provided for as of such Basic Rent Adjustment Date. Notice of the new annual Basic Rent shall be delivered to Tenant on or before the tenth (10th) day preceding each Basic Rent Adjustment Date, but any failure to do so by Landlord shall not be or be deemed to be a waiver by Landlord of Landlords rights to collect such sums. Tenant shall pay to Landlord, within ten (10) days after a notice of the new annual Basic Rent is delivered to Tenant, all amounts due from Tenant, but unpaid, because the stated amount as set forth above was not delivered to Tenant at least ten (10) business days preceding the Basic Rent Adjustment Date in question.
EXHIBIT D TO LEASE AGREEMENT FOR NEW YORK TIMES
SCHEDULE D-1
Basic Rent Schedule
Lease Year |
|
Annual Rent |
|
Monthly Rent |
|
||
1 |
|
$ |
24,187,500.00 |
|
$ |
2,015,625.00 |
|
2 |
|
$ |
24,550,312.50 |
|
$ |
2,045,859.38 |
|
3 |
|
$ |
24,918,567.19 |
|
$ |
2,076,547.27 |
|
4 |
|
$ |
25,292,345.70 |
|
$ |
2,107,695.47 |
|
5 |
|
$ |
25,671,730.88 |
|
$ |
2,139,310.91 |
|
6 |
|
$ |
26,056,806.84 |
|
$ |
2,171,400.57 |
|
7 |
|
$ |
26,447,658.95 |
|
$ |
2,203,971.58 |
|
8 |
|
$ |
26,844,373.83 |
|
$ |
2,237,031.15 |
|
9 |
|
$ |
27,247,039.44 |
|
$ |
2,270,586.62 |
|
10 |
|
$ |
27,655,745.03 |
|
$ |
2,304,645.42 |
|
11 |
|
$ |
27,966,541.71 |
|
$ |
2,330,545.14 |
|
12 |
|
$ |
28,595,788.90 |
|
$ |
2,382,982.41 |
|
13 |
|
$ |
29,239,194.15 |
|
$ |
2,436,599.51 |
|
14 |
|
$ |
29,897,076.02 |
|
$ |
2,491,423.00 |
|
15 |
|
$ |
30,569,760.23 |
|
$ |
2,547,480.02 |
|
SCHEDULE D-1 TO LEASE AGREEMENT FOR NEW YORK TIMES
EXHIBIT E
DEFAULT TERMINATION YIELD SCHEDULE
Month |
|
Amount |
|
|
3/2009 |
|
$ |
227,536,973 |
|
4/2009 |
|
$ |
230,125,742 |
|
5/2009 |
|
$ |
232,767,365 |
|
6/2009 |
|
$ |
235,462,921 |
|
7/2009 |
|
$ |
238,213,512 |
|
8/2009 |
|
$ |
241,020,261 |
|
9/2009 |
|
$ |
243,884,314 |
|
10/2009 |
|
$ |
246,806,841 |
|
11/2009 |
|
$ |
249,789,037 |
|
12/2009 |
|
$ |
252,832,119 |
|
1/2010 |
|
$ |
255,937,331 |
|
2/2010 |
|
$ |
259,105,940 |
|
3/2010 |
|
$ |
262,308,391 |
|
4/2010 |
|
$ |
265,576,225 |
|
5/2010 |
|
$ |
268,910,777 |
|
6/2010 |
|
$ |
272,313,410 |
|
7/2010 |
|
$ |
275,785,513 |
|
8/2010 |
|
$ |
279,328,505 |
|
9/2010 |
|
$ |
282,943,833 |
|
10/2010 |
|
$ |
286,632,974 |
|
11/2010 |
|
$ |
290,397,435 |
|
12/2010 |
|
$ |
294,238,753 |
|
1/2011 |
|
$ |
298,158,499 |
|
2/2011 |
|
$ |
302,158,272 |
|
3/2011 |
|
$ |
306,208,394 |
|
4/2011 |
|
$ |
310,341,205 |
|
5/2011 |
|
$ |
314,558,395 |
|
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 E TO LEASE AGREEMENT FOR NEW YORK TIMES
EXHIBIT F
FORM OF NOTICE OF ELECTION TO EXTEND TERM
[TENANT
NAME]
[Tenant address]
[Landlord Name] |
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, 20 |
[Landlord notice address(es) per Paragraph 24 of Lease] |
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NOTICE is hereby given to the above named Landlord that , a , having an office at , as Tenant under that certain Lease Agreement, made as of February , 2009, between [620 Eighth NYT (NY) Limited Partnership], a Delaware limited partnership, as landlord, and NYT Real Estate Company, LLC, a New York limited liability company, as tenant, a memorandum of which Lease Agreement was recorded in the Office of the Register of the City of New York on , 20 as CRFN: (the Lease ), hereby elects, pursuant to Paragraph 5(b) of the Lease, to extend the Term of the Lease with respect to [the entirety][floor(s) ] [ DELETE AND COMPLETE AS APPLICABLE ] of the Leased Premises as of [ INSERT RENEWAL DATE ] for a Renewal Term of [ INSERT NUMBER OF YEARS OF APPLICABLE RENEWAL TERM ] years commencing on such Renewal Date.
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Lease.
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TENANT |
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By: |
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Title: |
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EXHIBIT F TO LEASE AGREEMENT FOR NEW YORK TIMES
1
County of New York |
) |
|
)ss.: |
State of New York |
) |
On the day of in the year before me, the undersigned, a notary public in and for said state, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
Notary Public
EXHIBIT F TO LEASE AGREEMENT FOR NEW YORK TIMES
2
EXHIBIT G
FORM OF LANDLORDS NON-DISTURBANCE AGREEMENT
SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the day of , 20 (this Agreement) among , a , having an office at ( Landlord ), , a , having an office at ( Tenant ) and , a , having an office at ( Subtenant ).
WITNESSETH:
WHEREAS, Landlord is the present owner and holder of the lessees interest under a certain lease more particularly described in Exhibit A-1 , including an interest in certain leasehold condominium units in The New York Times Building Condominium more particularly described on Exhibit A-2 , located in the building having a street address of 620 Eighth Avenue, New York, New York (hereinafter all or any portion of the foregoing leasehold interest subject to the lien of the Mortgage shall be referred to as the Property ); and
WHEREAS, Tenant is the holder of a subleasehold estate in the Property (the Premises ) under and pursuant to the provisions of a certain Lease Agreement dated as of March , 2009, between Landlord and Tenant (such Lease Agreement, including all exhibits and schedules attached thereto, as the same may be amended, modified, extended, renewed, supplemented or replaced, being hereinafter referred to as the Overlease ); and
WHEREAS, Subtenant is the subtenant under that certain sublease (the Sublease ) dated , between Tenant and Subtenant covering (the Subleased Premises ):
WHEREAS, Subtenant has requested that Landlord agree not to terminate the Sublease nor disturb Subtenants occupancy under the Sublease in the event the Overlease shall terminate or be terminated by reason of Tenants default; and
WHEREAS, Landlord is willing to enter into such an agreement on the terms and conditions contained herein;
NOW, THEREFORE, in consideration of Ten Dollars and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, Landlord and Subtenant agree as follows:
1. Subordination . Subtenant agrees that the Sublease and all of the terms, covenants and provisions thereof and all rights, remedies and options of Subtenant thereunder are and shall at all times continue to be fully subject and subordinate in all respects to the Overlease and any Mortgage (as such term is defined in the Overlease), and to all advances heretofore made, and hereafter to be made, pursuant thereto, as the same may be renewed, amended, supplemented, extended or replaced. This provision shall be self-operative and no further instrument shall be required to confirm or perfect such subordination. However, at the request of Landlord, Subtenant shall, at its own expense, execute and deliver such other documents and take such other action as Landlord reasonably requests to perfect, confirm or effectuate such subordination.
2. Nondisturbance . Landlord agrees that (a) neither the rights, possession nor enjoyment of Subtenant under, and in accordance with the terms of, the Sublease shall be terminated or disturbed by Landlord by reason of the termination of the Overlease or any termination action or proceeding instituted by the Landlord under or in connection with the Overlease (each, an Attornment Event ), and (b) Subtenant shall not be named or joined as a party therein, and the exercise by Landlord of any such Attornemnt Event shall be made subject to all rights of Subtenant under the Sublease, provided that (i) at the time of the commencement of any Attornment Event or at the time of the conclusion of any such Attornment Event, (x) the Sublease shall be in full force and effect and (y) Subtenant shall not be in default (after all applicable notices have been given and all applicable grace periods have expired in accordance with the terms of the Sublease) under any of the terms, covenants or conditions of the Sublease, and (ii) Subtenant may be so named or joined in any such Attornment Event if required by law, so long as (1) in connection with such naming and joining of Subtenant, Landlord will not seek to terminate or extinguish Subtenants rights under this Agreement or the Sublease, except as specifically set forth elsewhere in this Agreement, and (2) none of Subtenants rights under this Agreement or the Sublease shall be impaired or otherwise affected by such naming or joining of Subtenant in any material respect. The immediately preceding sentence shall in no way be deemed a waiver of Landlords rights to enforce any default or remedy against Tenant under the Overlease pursuant to the terms of the Overlease.
3. Non-Liability . Upon the occurrence of an Attornment Event and the termination or surrender of the Overlease, the Sublease shall, notwithstanding any provision to the contrary therein contained, continue in full force and effect as a direct lease between Landlord and Subtenant, provided that in no event shall Landlord or its successors or assigns be:
(a) liable for any previous act, omission, or negligence of Tenant as sublandlord or any prior sublandlord or the failure or default of any prior sublandlord (including, without limitation, Tenant) to comply with any of its obligations under the Sublease except to the extent such act, omission, negligence, failure or default occurs after
2
the date that Landlord succeeds to the interest of Tenant under the Sublease and Landlord shall have received written notice of such act, omission, negligence, failure or default and has had a reasonable opportunity to cure the same, all subject to the terms and conditions of the Sublease;
(b) subject to any defenses, offsets or counterclaims that Subtenant may have against any prior sublandlord (including, without limitation, Tenant) which accrued prior to the date upon which Landlord succeeds to the interest of Tenant under the Sublease in connection with a default by Tenant thereunder;
(c) bound by any action listed in Section 4 below made without Landlords prior written consent
(d) bound by any prepayment of base rent, additional rent, operating expenses or any other charges due under the Sublease more than one (1) month in advance of the due date therefor except for prepayments expressly approved in writing by the Landlord;
(e) liable for any free rent or any any brokerage commissions or costs, expenses or liabilities in connection therewith; or
(f) liable for any monies owing by or on deposit with Tenant to the credit of Subtenant except to the extent received by the Landlord; or
(g) liable for the performance of any work or installations, or for any contribution, free rent or allowance for the same, required to be performed or made available by Tenant or any other prior sublandlord under the Sublease.
4. No Changes to Sublease . The Sublease constitutes an inducement to Landlord to enter into this Agreement. Consequently, Subtenant shall not, without obtaining the prior written consent of Landlord, (i) enter into any agreement modifying, amending, extending, renewing, terminating or surrendering the Sublease, (ii) prepay any of the base rent, additional rent, operating expenses or any other charges due under the Sublease for more than one (1) month in advance of the due dates thereof, (iii) voluntarily surrender the premises demised under the Sublease, in whole or in part, or cancel or terminate the Sublease, (iv) assign the Sublease or sublet the Subleased Premises or any part thereof or (v) subordinate or permit the subordination of the Sublease to any lien other than the Mortgage; and any such amendment, modification, termination, cancellation, prepayment, voluntary surrender, assignment or subletting, without Landlords prior consent, shall not be binding upon Landlord.
5. Attornment Upon the occurrence of an Attornment Event and the termination or surrender of the Overlease, Subtenant shall be bound to Landlord under all of the terms, covenants and conditions of the Sublease (except as set forth in paragraph 3) for the balance of the term thereof and of any extensions or renewals thereof that are effected in accordance with the Sublease, with the same effect as if Landlord were the sublandlord under the Sublease, such attornment to be effective as of the date such Attornment Event and the termination or surrender of the Overlease occurs, without the execution of any further agreement. However, Subtenant agrees, at its own expense, to
3
execute and deliver, at any time and from time to time upon request of Landlord, any agreement that may reasonably be necessary or appropriate to evidence such attornment and the modification of the Sublease pursuant to paragraph 3 hereof, or, at Landlords election, a direct lease with Landlord upon all of the terms of the Sublease as modified pursuant to paragraph 3 hereof. Failure of Subtenant to so execute any such an agreement shall not vitiate such attornment. Subtenant waives the provisions of any statute or rule of law now or hereafter in effect that may give it any right or election to terminate or otherwise adversely affect the Sublease or the obligations of Subtenant thereunder by reason of any proceeding in connection with such Attornment Event or the termination or surrender of the Overlease.
6. Notice of Default .
(a) Subtenant will promptly deliver to Landlord notice of any default of Tenant or other circumstance that would entitle Subtenant to cancel the Sublease or to abate the rent or additional rent or any other amounts payable thereunder, and agrees that notwithstanding any provision of the Sublease, no cancellation thereof or abatement shall be effective unless Subtenant shall have sent Landlord a notice in the manner herein provided and Landlord has failed to cure the default giving rise to such right to cancellation or abatement within the time period as Tenant may be entitled to under the Sublease plus thirty (30) days after receipt of such notice or if such default cannot be cured within that time, then such additional time as may be necessary if, within such thirty (30) days, Landlord has notified Tenant of its intention to cure such default and has commenced and is diligently pursuing the remedies necessary to cure such default (including, without limitation, commencement of foreclosure proceedings or eviction proceedings, if necessary, to effect such cure). No cure of Tenants default by Landlord shall be deemed an assumption of Tenants other obligations under the Sublease and no right of Landlord hereunder to receive any notice or to cure any default shall be deemed to impose any obligation on Landlord to cure (or attempt to cure) any such default.
(b) Subtenant agrees, from time to time, to state in writing to Landlord, upon request whether or not, to the best of Subtenants actual knowledge, any default on the part of Tenant exists under the Sublease and the nature of any such default.
7. Notices . All notices, consents, approvals, demands and other communications (notices) hereunder shall be in writing and shall be delivered in person, sent by Federal Express or overnight courier or sent by registered or certified mail, return receipt requested, to any party hereto at its address below stated or at such other address and to such other persons (but not more than three at any one time) of which it shall have notified the party giving such notice in writing. Notices to Landlord shall be addressed to Landlord at , with a copy to , and a copy of all notices given to Landlord shall simultaneously be sent to its counsel, . Notices to Tenant shall be addressed to Tenant at , and a copy of all notices given to Tenant shall simultaneously be sent to its counsel, . Notices to Subtenant shall be addressed to Subtenant at , and a copy of all notices given to Subtenant
4
shall simultaneously be sent to its counsel, . Any notice sent by such registered or certified mail shall be deemed to have been served when the addressee either actually receives such notice or refuses to accept delivery thereof. Any notice sent by Federal Express or overnight courier shall be deemed to have been served two (2) business days after the date it is sent. Any notice sent by personal delivery shall be deemed to have been served on the date of such delivery. Any notice shall be deemed effective and deemed given by Landlord or Tenant, as the case may be, if signed and sent by its respective counsel. Subtenant shall promptly send Landlord copies of any termination or default notice given by Subtenant under the Sublease.
8. Payment of Rent After Attornment Event Upon the giving by Landlord to Subtenant of written notice stating that an Event of Default has occurred under the Overlease and requesting direct payment of rent, Subtenant shall thereafter pay to Landlord, or as otherwise directed by Landlord, all rent and other charges coming due under the Sublease. Tenant agrees that Subtenant shall have the right to rely upon such notice and request from Landlord without any obligation to inquire as whether an Event of Default actually has occurred and notwithstanding any notice from or claim of Tenant to the contrary, and Tenant shall have no right or claim against Subtenant for any such amounts so paid by Subtenant to Landlord after such notice to Subtenant. Subtenant further agrees that Landlord shall not, by reason of the acceptance of any rent under this Section 8 , be subject to any obligation, duty or liability under the Sublease, except to the extent applicable in this Agreement.
9. Limitations on Landlords Liability . In no event shall the Landlord, nor any heir, legal representative, successor, or assignee of the Landlord have any personal liability for the obligations of Landlord under the Overlease and should the Landlord succeed to the interests of the Tenant under the Sublease, Subtenant shall look only to the estate and property of Landlord in the Subleased Premises for the satisfaction of Subtenants remedies for the collection of a judgment (or other judicial process) requiring the payment of money in the event of any default by Landlord as sublandlord under the Sublease, and no other property or assets of Landlord shall be subject to levy, execution or other enforcement procedure for the satisfaction of Subtenants remedies under or with respect to the Sublease.
10. Miscellaneous . This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto and may not be modified or terminated orally. This Agreement and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the law of the State of New York. This Agreement may be signed in counterparts.
11. Entire Agreement . This Agreement constitutes the final expression of the entire agreement of the parties with respect to the subject matter hereof.
12. WAIVER OF TRIAL BY JURY . LANDLORD, TENANT AND SUBTENANT HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT.
5
13. Representations . Subtenant represents and warrants to Landlord that as of the date hereof (i) Subtenant is the owner and holder of the subtenants interest under the Sublease; (ii) the Sublease (including exhibits and schedules thereto) is a complete statement of the agreement between Subtenant and Tenant with respect to the subleasing of the Subleased Premises, has not been modified or amended; (iii) the Sublease is in full force and effect; (iv) to the best of Subtenants actual knowledge, neither Tenant nor Subtenant is in default under any of the terms, covenants or provisions of the Sublease; (v) no rents, additional rents or other sums payable under the Sublease have been paid for more than one (1) month in advance of the due dates thereof; (vi) to the best of Subtenants actual knowledge, there are no present offsets or defenses to the payment of the rents, additional rents, or other sums payable under the Sublease; and (vii) there is no work to be performed by Tenant in the Subleased Premises and thee in are no construction allowances, free rent period or other contribution to be made by the Tenant under the terms of the Sublease.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
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LANDLORD : |
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By: |
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Name: |
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Title: |
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SUBTENANT |
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By: |
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Name: |
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Title: |
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TENANT |
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By: |
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Name: |
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Title: |
7
County of New York |
) |
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)ss.: |
State of New York |
) |
On the day of in the year before me, the undersigned, a notary public in and for said state, personally appeared , personallyknown to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
Notary Public
County of New York |
) |
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) ss.: |
State of New York |
) |
On the day of in the year before me, the undersigned, anotary public in and for said state, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individuals) 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 signatures) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
Notary Public
County of New York |
) |
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) ss.: |
State of New York |
) |
On the day of in the year before me, the undersigned, a notary public in and for said state, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individuals) 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^) on the instrument, the individuals), or die person upon behalf of which the individual(s) acted, executed the instrument.
Notary Public
EXHIBIT G TO LEASE AGREEMENT FOR NEW YORK TIMES
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 NYTBs 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 ).
2
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 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 Registers 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
3
Declaration) of the New York Times Building Condominium, recorded as CRFN 2006000460293 as amended.
4
SCHEDULE OF UNITS
UNIT DESIGNATION |
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TAX LOT |
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PERCENTAGE INTEREST
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0-A |
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1001 |
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0.6627 |
% |
1- A |
|
1003 |
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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 |
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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 |
% |
5
EXHIBIT H
INTENTIONALLY OMITTED
EXHIBIT H TO LEASE AGREEMENT FOR NEW YORK TIMES
EXHIBIT I
FORM OF BENEFICIAL ASSIGNMENT
ASSIGNMENT AND ASSUMPTION OF SUBLEASE
This ASSIGNMENT AND ASSUMPTION OF SEVERANCE LEASE (the Assignment ) dated as of , 20 (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, a New York limited liability company ( NYTB ), and 42 nd St. Development Project, Inc. ( 42DP ) 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, NYTB 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 # , 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 , 2009, between Landlord and Tenant and recorded in the Office of the City Register of the City of New York on March , 2009, as CRFN # (Original NYT Severance Lease, as so amended, the NYT Sublease );
WHEREAS, NYTB 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;
WHEREAS, pursuant to NYTBs submission of the Ground Lease to a leasehold condominium structure, NYTB entered into that certain Assignment and Assumption Agreement with 42DP dated August 15, 2006, whereby NYTB assigned all of its right, title and interest in and to the Ground Lease (as lessee) and the NYT Sublease (as lessor) to 42DP;
WHEREAS, Assignor and Assignee entered into a financing lease transaction pursuant to that certain Lease Agreement by and between Assignor, as tenant, and Assignee, as landlord, dated March , 2009, for the Property, which contained a purchase option for $250,000,000.00 ( Purchase Option ), exercisable on the tenth (10 th ) anniversary of the commencement date thereof ( WPC Lease );
WHEREAS, pursuant to such financing lease transaction, Assignor and Assignee entered into that certain Assignment and Assumption of Sublease dated March , 2009 ( Original Assignment ), which served as collateral security for Assignors obligations under the WPC Lease;
WHEREAS, Assignor failed to exercise timely the Purchase Option and the Option Lapse Date has occurred under the WPC Lease;
WHEREAS, pursuant to the terms of the WPC Lease, upon the occurrence of the Option Lapse Date, Assignor is obligated to deliver the Beneficial Transfer Documents to Assignee, of which this Assignment constitutes a part;
WHEREAS, in conformity with the terms of the WPC Lease, Assignor now desires to make a present and absolute assignment of all of its right, title and beneficial interest in and to the NYT Sublease to Assignee, and not merely as part of a financing lease transaction; and
WHEREAS, Assignee desires to assume and accept all such right, title and beneficial interest.
NOW, THEREFORE, in consideration of the foregoing and of 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 WPC Lease. 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 presently assigns, grants, bargains, sells and transfers all of its right, title and beneficial 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 Effective Date, to Assignee and its successors and assigns, TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, from the Effective Date, 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 Effective Date, 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 Assignors obligation to continue to perform such obligations pursuant to the terms of the WPC Lease and the Condominium Documents.
4. Assignor hereby waives any right of redemption by Assignor with respect to the Property and, to the fullest extent permitted by applicable law, waives all rights, claims or defenses available to a mortgagor under the any applicable law of the State of New York,
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including any right to assert that the WPC Lease continues to constitute a financing lease from and after the Effective Date.
5. Assignor hereby acknowledges and agrees that, from and after the Effective Date, the WPC Lease constitutes for all purposes a true lease for the balance of the term of the WPC Lease and Assignor agrees to treat the WPC Lease as such for all federal, state and local tax and accounting purposes in accordance with Paragraph 33(b) of the WPC Lease.
6. Assignor, concurrently with the execution and delivery of this Assignment, has delivered to Assignee: (i) a certified check in an amount equal to the amount of all New York State and New York City transfer taxes due in connection with the recording of this Assignment, made payable to or at the direction of Assignee, (ii) a certified check in an amount equal to all Costs incurred by Assignee in connection with the transactions contemplated by the Beneficial Transfer Documents, and (iii) a certified check in an amount equal to the actual costs to obtain a Leasehold Owners ALTA Policy of Title Insurance in favor of Assignee with respect to the Property effective as of the date of the transfer of beneficial title contemplated hereby, subject only to the Permitted Exceptions and otherwise reasonably satisfactory to Assignee, together with such other customary affidavits or certificates requested by the applicable land title insurance company to issue such policy.
7. 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.
8. 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; provided that, as between Assignor and Assignee, nothing herein shall limit or alter Assignors obligation to continue to perform such obligations pursuant to the terms of the WPC Lease and the Condominium Documents.
9. 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.
10. This Assignment shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns.
11. 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 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.
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12. This Assignment shall be governed by, and construed in accordance with, the laws of the State of New York.
13. 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]
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ASSIGNOR : |
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NYT REAL ESTATE COMPANY LLC , a New York limited liability company |
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By: |
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Name: |
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Title: |
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ASSIGNEE : |
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620 EIGHTH NYT (NY) LIMITED |
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PARTNERSHIP , a Delaware limited partnership |
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By: 620 EIGHTH GP NYT (NY) LLC, a |
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Delaware limited liability company, its general partner |
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By: CPA:17 LIMITED PARTNERSHIP, a |
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Delaware limited partnership, its sole member |
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By: CORPORATE PROPERTY |
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ASSOCIATES 17 GLOBAL INCORPORATED, |
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a Maryland corporation, its general partner |
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By: |
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Name: |
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Title: |
STATE OF NEW YORK |
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COUNTY OF NEW YORK |
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On the day of 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.
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Notary Public |
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STATE OF NEW YORK |
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COUNTY OF NEW YORK |
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On the day of 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.
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Notary Public |
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EXHIBIT E TO LEASE AGREEMENT FOR NEW YORK TIMES
1
EXHIBIT A
LEGAL DESCRIPTION
ALL that certain plot, piece or parcel of land, situate, lying and being in the Borough of Manhattan, County of New York, City and State of New York, bounded and described as follows:
BEGINNING at the corner formed by the intersection of the northerly line of 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.
2
EXHIBIT B
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 Surveyors 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 Registers 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;
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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.
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SCHEDULE OF UNITS
UNIT DESIGNATION |
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TAX LOT |
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PERCENTAGE INTEREST
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0-A |
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1001 |
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0.6627 |
% |
1- A |
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1003 |
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2.0132 |
% |
1-E |
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1007 |
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0.0691 |
% |
2-A |
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1009 |
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4.7805 |
% |
3-A |
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1010 |
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4.7579 |
% |
4-A |
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1011 |
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4.5636 |
% |
5-A |
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1012 |
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1.6352 |
% |
6-A |
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1013 |
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1.7325 |
% |
7-A |
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1014 |
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1.7325 |
% |
8-A |
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1015 |
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1.7325 |
% |
9-A |
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1016 |
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1.7325 |
% |
10-A |
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1017 |
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1.7325 |
% |
11-A |
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1018 |
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1.7325 |
% |
12-A |
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1019 |
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1.7325 |
% |
13-A |
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1020 |
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1.7325 |
% |
14-A |
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1021 |
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1.7440 |
% |
15-A |
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1022 |
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1.3998 |
% |
16-A |
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1023 |
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1.7484 |
% |
17-A |
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1024 |
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1.7207 |
% |
18-A |
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1025 |
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1.7711 |
% |
19-A |
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1026 |
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1.7711 |
% |
20-A |
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1027 |
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1.7711 |
% |
28-A |
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1035 |
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0.4446 |
% |
Exhibit 10.3
THIRD AMENDMENT TO AGREEMENT OF SUBLEASE (NYT)
By and Between
42ND ST. DEVELOPMENT PROJECT, INC. ,
as Landlord
and
NYT REAL ESTATE COMPANY LLC,
as Tenant
Premises :
Block: 1012
Lots: 1001, 1003, 1007, and 1009 through 1035 (formerly part of Lot 1)
Address
620-628 8 th Avenue
263-267 and 241-261 West 40 th Street
242-244 West 41 st Street
231-235 West 40 th Street
248-256, 260-262 and 268 West 41 st Street
634 and 630-632 8 th Avenue
Borough of Manhattan
County, City and State of New York
RECORD AND RETURN TO :
DLA Piper LLP (US)
1251 Avenue of the Americas
New York, New
York 10020
Attention: Marc Hurel, Esq.
THIRD AMENDMENT TO AGREEMENT OF SUBLEASE (NYT)
THIS THIRD AMENDMENT TO AGREEMENT OF SUBLEASE (NYT) (this Amendment ) is made as of the 6th day of March, 2009, by and between 42ND ST. DEVELOPMENT PROJECT, INC. ( 42DP ), a subsidiary of New York State Urban Development Corporation ( UDC ) d/b/a Empire State Development Corporation ( ESDC ), a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, having an office at 633 Third Avenue, 33 rd floor, New York, New York 10017, as landlord (in such capacity, Landlord ), and NYT REAL ESTATE COMPANY LLC, a New York limited liability company, having an office c/o The New York Times Company, 620 Eighth Avenue, New York, New York 10018, as tenant (in such capacity, Tenant ).
W I T N E S S E T H :
WHEREAS , Landlord and The New York Times Building LLC ( NYTB ) entered into that certain Agreement of Lease dated as of December 12, 2001, as amended by letter dated April 8, 2004 (the Initial Ground Lease ), with respect to certain land and improvements more particularly described in the Initial Ground Lease, a memorandum of which was recorded October 24, 2003 in the Office of the City Register of the City of New York (the Office of the City Register ) as CRFN 2003000433122;
WHEREAS , NYTB, as landlord, entered into:
(a) that certain Agreement of Sublease (NYT) dated as of December 12, 2001 with NYT Real Estate Company LLC, as tenant, a memorandum of which was recorded October 24, 2003 as CRFN 2003000433125 in the Office of the City Register (the Initial NYTC Sublease ), which Initial NYTC Sublease was amended by First Amendment to Agreement of Sublease (NYT) dated as of 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 (the First Amendment ) and by Second Amendment to Agreement of Sublease (NYT) (the Second Amendment ) dated as of 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 (the Initial NYTC Sublease, as so amended and as further amended by this Amendment, the NYTC Sublease );
(b) that certain Agreement of Sublease (Office) dated as of December 12, 2001 with FC Lion LLC ( FC Lion ), as tenant, a memorandum of which was recorded October 24, 2003 as CRFN 2003000433123 in the Office of the City Register (the Initial FC Office Sublease ), the tenants interest in which Initial FC Office Sublease was assigned to and assumed by FC Eighth Ave., LLC, a Delaware limited liability company ( FC Eighth ) pursuant to that certain Assignment and Assumption of Sublease Agreement dated as of August 15, 2006 between FC Lion, as assignor, and FC Eighth, as assignee, and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644730, and which Initial FC Office Sublease was amended by First Amendment to Agreement of Sublease (Office)
dated as of August 15, 2006 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644733, by Second Amendment to Agreement of Sublease (Office) dated as of January 29, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100155, by Third Amendment to Agreement of Sublease (Office) dated as of October 11, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on January 8, 2008 as CRFN 2008000008732, and by Fourth Amendment to Agreement of Sublease (Office) dated of even date herewith and intended to be recorded in the Office of the City Register of the City of New York (the Initial FC Office Sublease, as so assigned and amended, the FC Office Sublease ); and
(c) that certain Agreement of Sublease (Retail) dated as of December 12, 2001 with FC Lion, as tenant, a memorandum of which was recorded October 24, 2003 as CRFN 2003000433124 in the Office of the City Register (the Initial FC Retail Sublease ), the tenants interest in which Initial FC Retail Sublease was assigned to and assumed by FC Eighth pursuant to that certain Assignment and Assumption of Sublease Agreement dated as of August 15, 2006 between FC Lion, as assignor, and FC Eighth, as assignee, and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644731, and which Initial FC Retail Sublease was amended by First Amendment to Agreement of Sublease (Retail) dated as of August 15, 2006 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644734, by Second Amendment to Agreement of Sublease (Retail) dated as of January 29, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100156, by Third Amendment to Agreement of Sublease (Retail) dated as of October 11, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on January 8, 2008 as CRFN 2008000008733, and by Fourth Amendment to Agreement of Sublease (Retail) dated of even date herewith and intended to be recorded in the Office of the City Register of the City of New York (the Initial FC Retail Sublease, as so assigned and amended, the FC Retail Sublease );
WHEREAS , NYTB submitted the Initial Ground Lease to a leasehold condominium structure pursuant to Article 9-B of the Real Property Law of the State of New York;
WHEREAS , pursuant to that certain Assignment and Assumption Agreement dated as of August 15, 2006 (being the Lease Assignment Date under the Initial Ground Lease) between NYTB and Landlord (the Assignment), NYTB assigned to Landlord all of NYTBs right, title and interest in and to the Initial Ground Lease and the NYTC Sublease, the FC Office Sublease and the FC Retail Sublease;
WHEREAS , pursuant to the provisions of the Initial Ground Lease and the Assignment, the Assignment did not cause a merger of the interests of landlord and tenant under the Initial Ground Lease, which interests are and remain separate and distinct;
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WHEREAS , the Initial Ground Lease was amended and restated pursuant to Amended and Restated Agreement of Lease dated as of August 15, 2006 and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644736, which Amended and Restated Agreement of Lease was amended by First Amendment to Amended and Restated Agreement of Lease dated as of January 29, 2007 and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100154;
WHEREAS, Tenant has requested that Landlord agree, and Landlord has agreed, to further amend the NYTC Sublease, inter alia , to remove from the premises demised thereunder a portion of the NYTC Collective Unit consisting of Units 21-A, 22-A, 23-A, 24-A, 25-A, 26-A and 27-A, together their undivided percentage interest in the Common Elements, as more particularly described on Exhibit A annexed hereto (the New NYTC Sublease Premises );
WHEREAS , simultaneously herewith Landlord and Tenant are entering into an Agreement of Sublease (NYT-2), a memorandum of which is intended to be recorded in the Office of the City Register immediately following the recording of this Amendment, covering the New NYTC Sublease Premises (the New NYTC Sublease );
WHEREAS , simultaneously herewith the Unit Owners (as defined in the Condominium Declaration) are executing a Third Amendment to Declaration of Leasehold Condominium for certain purposes; and
WHEREAS, Landlord and Tenant desire to amend the NYTC Sublease for the purposes hereinafter set forth.
NOW, THEREFORE , in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions . All capitalized terms used herein without definition shall have the meanings ascribed to them in the NYTC Sublease.
2. New Definitions . The following new defined terms are hereby added to Article I of the NYTC Sublease:
New NYTC Sublease means that certain Agreement of Sublease (NYT-2), dated as of March 6, 2009, a memorandum of which is intended to be recorded in the Office of the City Register, covering the New NYTC Sublease Premises, as the same may hereafter be amended and/or assigned, subject to any required consents thereunder.
New NYTC Sublease Premises means a portion of the NYTC Collective Unit (as defined in the Condominium Declaration) consisting of Units 21-A, 22-A, 23-A, 24-A, 25-A, 26-A and 27-A, together with their undivided percentage interest in the Common Elements and the NYTC Limited Common Elements.
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3. Modified Definitions . The following defined terms set forth in the NYTC Sublease are hereby modified as set forth below:
Common Elements has the meaning set forth in the Condominium Declaration (it being acknowledged that Common Elements shall not include any FC Limited Common Elements, Retail Limited Common Elements or NYTC Limited Common Elements (as such terms are defined in the Condominium Declaration), but shall expressly include the Lobby Sublease Space).
Demised Premises means a portion of the NYTC Collective Unit (as defined in the Condominium Declaration) consisting of Units 0-A, 1-A, 1-E, 2-A, 3-A, 4-A, 5-A, 6-A, 7-A, 8-A, 9-A, 10-A, 11-A, 12-A, 13-A, 14-A, 15-A, 16-A, 17-A, 18-A, 19-A, 20-A, 28-A, together with their undivided percentage interest in the Common Elements and the NYTC Limited Common Elements.
FC means FC Eighth Ave., LLC, a Delaware limited liability company, its permitted successors and assigns.
FC Office Sublease means that certain Agreement of Sublease (Office) dated as of December 12, 2001 with FC Lion LLC ( FC Lion ), as tenant, a memorandum of which was recorded October 24, 2003 as CRFN 2003000433123 in the Office of the City Register (the Initial FC Office Sublease ), the tenants interest in which Initial FC Office Sublease was assigned to and assumed by FC Eighth Ave., LLC, a Delaware limited liability company ( FC Eighth ) pursuant to that certain Assignment and Assumption of Sublease Agreement dated as of August 15, 2006 between FC Lion, as assignor, and FC Eighth, as assignee, and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644730, and which Initial FC Office Sublease was amended by First Amendment to Agreement of Sublease (Office) dated as of August 15, 2006 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644733, by Second Amendment to Agreement of Sublease (Office) dated as of January 29, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100155, by Third Amendment to Agreement of Sublease (Office) dated as of October 11, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on January 8, 2008 as CRFN 2008000008732, and by Fourth Amendment to Agreement of Sublease (Office) dated as of March 6, 2009 between Landlord and FC Eighth and intended to be recorded in the Office of the City Register of the City of New York , as the same may hereafter be amended and/or assigned, subject to any required consents thereunder.
FC Retail Sublease means that certain Agreement of Sublease (Retail) dated as of December 12, 2001 with FC Lion, as tenant, a memorandum of which was recorded October 24, 2003 as CRFN 2003000433124 in the Office of the City Register (the Initial FC Retail Sublease ), the tenants interest in which Initial FC Retail Sublease was assigned to and assumed by FC Eighth Ave., LLC, a Delaware
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limited liability company ( FC Eighth ) pursuant to that certain Assignment and Assumption of Sublease Agreement dated as of August 15, 2006 between FC Lion, as assignor, and FC Eighth, as assignee, and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644731, and which Initial FC Retail Sublease was amended by First Amendment to Agreement of Sublease (Retail) dated as of August 15, 2006 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644734, by Second Amendment to Agreement of Sublease (Retail) dated as of January 29, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100156, by Third Amendment to Agreement of Sublease (Retail) dated as of October 11, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on January 8, 2008 as CRFN 2008000008733, and by Fourth Amendment to Agreement of Sublease (Retail) dated as of March 6, 2009 between Landlord and FC Eighth and intended to be recorded in the Office of the City Register of the City of New York , as the same may hereafter be amended and/or assigned, subject to any required consents thereunder.
Lease means that certain Agreement of Sublease (NYT) dated as of December 12, 2001 with Tenant, as tenant, a memorandum of which was recorded October 24, 2003 as CRFN 2003000433125 in the Office of the City Register (the Initial NYTC Sublease ), which Initial NYTC Sublease was amended by First Amendment to Agreement of Sublease (NYT) dated as of 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, by Second Amendment to Agreement of Sublease (NYT) (the Second Amendment ) dated as of 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 (NYC) dated as of March 6, 2009 between Landlord and FC Eighth and intended to be recorded in the Office of the City Register of the City of New York, as the same may hereafter be amended and/or assigned, subject to any required consents thereunder.
Severance Subleases means this Lease, the New NYTC Sublease, the FC Office Sublease, the FC Retail Sublease, any New Office Subleases (as defined in the FC Office Sublease) and any new leases entered into pursuant to Section 31.6 of any of the foregoing.
4. Removal of New NYTC Sublease Premises; Legal Description . The New NYTC Sublease Premises are hereby deleted from the premises demised under the NYTC Sublease, effective as of the date hereof, it being the intention of the parties that the provisions hereof and the New NYTC Sublease are not intended to constitute a surrender and releasing of the New NYTC Sublease Premises, but merely the splitting of the NYTC Sublease into two (2) separate leases. Exhibit A to the Second Amendment is hereby deleted and replaced in its entirety by the document attached hereto as Exhibit A . All references to Exhibit A in the First Amendment and Second Amendment shall be deemed to refer to the document attached hereto as Exhibit A . Tenant shall remain liable under the NYTC Sublease for all Charges and other
5
obligations which have accrued under the NYTC Sublease with respect to the New NYTC Sublease Premises up to the date hereof; provided that, Tenant (and its successors and assigns) as tenant under the NYTC Sublease, shall not have any obligations or liabilities under the NYTC Sublease with respect to the New NYTC Sublease Premises which accrue from and after the date hereof, it being the understanding of the parties that Tenant (and its successors and assigns) as tenant under the New NYTC Sublease, shall have all such obligations and liabilities with respect to the New NYTC Sublease Premises. Nothing herein shall be deemed to modify the terms of Section 14.7 of the NYTC Sublease.
5. Deletion of Roof Top Garden Space Obligations . The Initial NYTC Sublease included obligations on the part of Tenant with respect to the Roof Top Garden Space based on the assumption that the Roof Top Garden Space would constitute part of the Common Elements. However, pursuant to the Condominium Declaration, the Roof Top Garden Space is designated as Special FC Limited Areas and is not part of Common Elements. Accordingly, the parties hereby further amend the NYTC Sublease as follows:
(a) The defined terms Budget Roof Top Garden Construction Costs and Roof Top Garden Adjusted Revenues are hereby deleted in their entirety.
(b) The definition of Demised Space is hereby modified to delete the words the Roof Top Garden Space or.
(c) The definition of Occupied Square Foot is hereby modified to delete clause (B) (i.e., the words with respect to the Roof Top Garden Space, each Rentable Square Foot within the Roof Top Garden Space).
(d) The definition of Retail PILOT is hereby modified by deleting clause (3) (i.e., the words Tenants Percentage Allocation of 10,000 Square Feet, representing the Roof Top Garden Space).
(e) The definition of Roof Top Garden Space is modified to read as follows: Roof Top Garden Space shall mean up to 10,000 Square Feet of space on the floor designated as the 52nd (Main Roof) floor of the Building, as shown on, and in conformity with, the schematic design plan drawing listed on Exhibit I-1 attached to the Initial Ground Lease as numbered A1053.
(f) Section 3.1(a)(i)(B)(2) is modified to delete the phrase or the Roof Top Garden Space.
(g) Section 3.2 is hereby modified by deleting clause (iii) of Section 3.2(a) (i.e., the calculation of Percentage Rent with respect to the Roof Top PILOT Space) and to delete all references in Section 3.2 to Roof Top Garden Adjusted Gross Revenues.
(h) Section 3.13 is modified to delete all references to Roof Top Garden Adjusted Gross Revenues.
(i) Sections 13.2(b)(i), 34.1(b), 34.2(b) and 34.2(d) are hereby deleted in their entirety.
6
(j) Section 34.1(c) is modified to delete the phrase and together with the Roof Top Garden Space, the Common Elements Leaseable Space.
6. PILOMRT Modification .
(a) The defined term Exempted Mortgage is hereby deleted in its entirety.
(b) The first sentence of Section 3.4(b) of the NYTC Sublease is hereby deleted in its entirety and the following inserted in lieu thereof: Prior to the recording of any Mortgage with the Office of the Register of the City, New York County, Tenant shall make a payment of PILOMRT to Landlord in an amount equal to an amount equal to the Mortgage Recording Tax that would have been payable upon the recording of such Mortgage if not for the exemption provided under Section 3.4(a) hereof.
(c) Section 3.18 of the NYTC Sublease is hereby deleted in its entirety.
7. Estoppel . To Landlords knowledge, (a) Tenant has fulfilled all of its obligations under the NYTC Sublease to date, (b) no Default or Event of Default (as each is defined in the NYTC Sublease) by Tenant exists under the NYTC Sublease and (c) Landlord has no claims (including claims of off-set, defense or counterclaims) against Tenant alleging Tenants default under the NYTC Sublease; provided, however, that Landlord has advised Tenant that Tenant is not in compliance with its obligations to provide Landlord, for Landlords review and approval in accordance with the terms of the NYTC Sublease, with details relating to the design and programming of the flat screen televisions installed by Tenant in lieu of retail signage (the Signage Obligations ) and Landlord reserves all rights and powers to enforce the Signage Obligations and remedies with respect thereto. Landlord has further advised Tenant that, with respect to the Prohibited Person status of 620 Eighth NYT (NY) Limited Partnership as a proposed transferee of the NYTC Sublease, Landlords knowledge is limited to a search of the NYC Vendex database indicating that no Caution or Warrant information was discovered.
8. Recording . Landlord and Tenant agree that Tenant shall cause this Amendment to be recorded and that Tenant shall pay any transfer or similar taxes that may be payable as a result of this Amendment.
9. No Other Amendments . As modified by this Amendment, the NYTC Sublease remains in full force and effect.
[the remainder of this page is intentionally blank]
7
IN WITNESS WHEREOF , Landlord and Tenant have executed this Amendment as of the day and year first written above.
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LANDLORD : |
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42ND ST. DEVELOPMENT PROJECT, INC., as Landlord |
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By: |
/s/ Naresh Kapadia |
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Name: Naresh Kapadia |
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Title: Assistant VP, Planning and Design |
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TENANT : |
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NYT REAL ESTATE COMPANY LLC, a New York limited liability company |
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By: |
/s/ Kenneth A. Richieri |
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Name: Kenneth A. Richieri |
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Title: Manager |
8
ACKNOWLEDGMENTS
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of 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 of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in h capacity, and that by h signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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Notary Public |
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Commission Expires |
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of 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 of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in h capacity, and that by h signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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Notary Public |
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Commission Expires |
9
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 Registers 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.
10
SCHEDULE OF UNITS
UNIT DESIGNATION |
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TAX LOT |
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PERCENTAGE INTEREST
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0-A |
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1001 |
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0.6627% |
1- A |
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1003 |
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2.0132% |
1-E |
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1007 |
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0.0691% |
2-A |
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1009 |
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4.7805% |
3-A |
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1010 |
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4.7579% |
4-A |
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1011 |
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4.5636% |
5-A |
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1012 |
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1.6352% |
6-A |
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1013 |
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1.7325% |
7-A |
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1014 |
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1.7325% |
8-A |
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1015 |
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1.7325% |
9-A |
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1016 |
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1.7325% |
10-A |
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1017 |
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1.7325% |
11-A |
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1018 |
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1.7325% |
12-A |
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1019 |
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1.7325% |
13-A |
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1020 |
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1.7325% |
14-A |
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1021 |
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1.7440% |
15-A |
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1022 |
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1.3998% |
16-A |
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1023 |
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1.7484% |
17-A |
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1024 |
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1.7207% |
18-A |
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1025 |
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1.7711% |
19-A |
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1026 |
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1.7711% |
20-A |
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1027 |
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1.7711% |
28-A |
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1035 |
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0.4446% |
11
Exhibit 10.4
FOURTH AMENDMENT TO AGREEMENT OF SUBLEASE (NYT)
By and Between
42ND ST. DEVELOPMENT PROJECT, INC. ,
as Landlord
and
620 EIGHTH NYT (NY) LIMITED PARTNERSHIP,
as Tenant
Premises :
Block: 1012
Lots: 1001, 1003, and 1009 through 1035 (formerly part of Lot 1)
Address
620-628 8 th Avenue
263-267 and 241-261 West 40 th Street
242-244 West 41 st Street
231-235 West 40 th Street
248-256, 260-262 and 268 West 41 st Street
634 and 630-632 8 th Avenue
Borough of Manhattan
County, City and State of New York
RECORD AND RETURN TO :
DLA Piper LLP (US)
1251 Avenue of the Americas
New York, New
York 10020
Attention: Marc Hurel, Esq.
FOURTH AMENDMENT TO AGREEMENT OF SUBLEASE (NYT)
THIS FOURTH AMENDMENT TO AGREEMENT OF SUBLEASE (NYT) (this Amendment ) is made as of the 6th day of March, 2009, by and between 42ND ST. DEVELOPMENT PROJECT, INC. ( 42DP ), a subsidiary of New York State Urban Development Corporation ( UDC ) d/b/a Empire State Development Corporation ( ESDC ), a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, having an office at 633 Third Avenue, 33 rd floor, New York, New York 10017, as landlord (in such capacity, Landlord ), and 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership, having an office address at c/o W.P. Carey & Co. LLC, 50 Rockefeller Plaza, 2nd Floor, New York, New York, 10020, as tenant (in such capacity, Tenant ).
W I T N E S S E T H :
WHEREAS , Landlord and The New York Times Building LLC ( NYTB ) entered into that certain Agreement of Lease dated as of December 12, 2001, as amended by letter dated April 8, 2004 (the Initial Ground Lease ), with respect to certain land and improvements more particularly described in the Initial Ground Lease, a memorandum of which was recorded October 24, 2003 in the Office of the City Register of the City of New York (the Office of the City Register ) as CRFN 2003000433122;
WHEREAS , NYTB, as landlord, entered into
(a) that certain Agreement of Sublease (NYT) dated as of December 12, 2001 with NYT Real Estate Company LLC ( NYTRE ), as tenant, a memorandum of which was recorded October 24, 2003 as CRFN 2003000433125 in the Office of the City Register (the Initial NYTC Sublease ), which Initial NYTC Sublease was amended by First Amendment to Agreement of Sublease (NYT) dated as of August 15, 2006 between Landlord and NYTRE 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 Landlord and NYTRE 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) (the Third Amendment ) dated as of March 6, 2009 between Landlord and NYTRE and recorded in the Office of the City Register of the City of New York on March , 2009 as CRFN , the tenants interest in which Initial NYTC Sublease as so amended was assigned to and assumed by Tenant pursuant to that certain Assignment and Assumption of Sublease dated as of March 6, 2009 between NYTRE, as assignor, and Tenant, as assignee, and recorded in the Office of the City Register of the City of New York on March , 2009 as CRFN (the Initial NYTC Sublease, as so amended and assigned and as further amended by this Amendment, the NYTC Sublease );
(b) that certain Agreement of Sublease (Office) dated as of December 12, 2001 with FC Lion LLC ( FC Lion ), as tenant, a memorandum of which was recorded October 24, 2003 as CRFN 2003000433123 in the Office of the City Register (the Initial FC Office
Sublease ), the tenants interest in which Initial FC Office Sublease was assigned to and assumed by FC Eighth Ave., LLC, a Delaware limited liability company ( FC Eighth ) pursuant to that certain Assignment and Assumption of Sublease Agreement dated as of August 15, 2006 between FC Lion, as assignor, and FC Eighth, as assignee, and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644730, and which Initial FC Office Sublease was amended by First Amendment to Agreement of Sublease (Office) dated as of August 15, 2006 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644733, by Second Amendment to Agreement of Sublease (Office) dated as of January 29, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100155, by Third Amendment to Agreement of Sublease (Office) dated as of October 11, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on January 8, 2008 as CRFN 2008000008732, and by Fourth Amendment to Agreement of Sublease (Office) dated as of March 6, 2009 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on March , 2008 as CRFN , and by Fifth Amendment to Agreement of Sublease (Office) even date herewith and intended to be recorded in the Office of the City Register of the City of New York (the Initial FC Office Sublease, as so assigned and amended, the FC Office Sublease ); and
(c) that certain Agreement of Sublease (Retail) dated as of December 12, 2001 with FC Lion, as tenant, a memorandum of which was recorded October 24, 2003 as CRFN 2003000433124 in the Office of the City Register (the Initial FC Retail Sublease ), the tenants interest in which Initial FC Retail Sublease was assigned to and assumed by FC Eighth pursuant to that certain Assignment and Assumption of Sublease Agreement dated as of August 15, 2006 between FC Lion, as assignor, and FC Eighth, as assignee, and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644731, and which Initial FC Retail Sublease was amended by First Amendment to Agreement of Sublease (Retail) dated as of August 15, 2006 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644734, by Second Amendment to Agreement of Sublease (Retail) dated as of January 29, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100156, by Third Amendment to Agreement of Sublease (Retail) dated as of October 11, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on January 8, 2008 as CRFN 2008000008733, and by Fourth Amendment to Agreement of Sublease (Retail) dated as of March 6, 2009 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on March , 2008 as CRFN , and by Fifth Amendment to Agreement of Sublease (Retail) even date herewith and intended to be recorded in the Office of the City Register of the City of New York (the Initial FC Retail Sublease, as so assigned and amended, the FC Retail Sublease );
WHEREAS , NYTB submitted the Initial Ground Lease to a leasehold condominium structure pursuant to Article 9-B of the Real Property Law of the State of New York;
2
WHEREAS , pursuant to that certain Assignment and Assumption Agreement dated as of August 15, 2006 (being the Lease Assignment Date under the Initial Ground Lease) between NYTB and Landlord (the Assignment ), NYTB assigned to Landlord all of NYTBs right, title and interest in and to the Initial Ground Lease and the NYTC Sublease, the FC Office Sublease and the FC Retail Sublease;
WHEREAS , pursuant to the provisions of the Initial Ground Lease and the Assignment, the Assignment did not cause a merger of the interests of landlord and tenant under the Initial Ground Lease, which interests are and remain separate and distinct;
WHEREAS , the Initial Ground Lease was amended and restated pursuant to Amended and Restated Agreement of Lease dated as of August 15, 2006 and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644736, which Amended and Restated Agreement of Lease was amended by First Amendment to Amended and Restated Agreement of Lease dated as of January 29, 2007 and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100154;
WHEREAS, pursuant to the Third Amendment, Landlord and NYTRE modified the Initial NYTC Sublease, inter alia, to remove from the premises demised thereunder a portion of the NYTC Collective Unit (as defined in the Condominium Declaration) consisting of Units 21-A, 22-A, 23-A, 24-A, 25-A, 26-A and 27-A, together their undivided percentage interest in the Common Elements and the NYTC Limited Common Elements (the New NYTC Sublease Premises );
WHEREAS, Landlord and NYTRE entered into that certain Agreement of Sublease (NYT-2) dated as of March 6, 2009 with respect to the New NYTC Sublease Premises, a memorandum of which Agreement of Sublease (NYT-2) was recorded March , 2009 as CRFN in the Office of the City Register, the tenants interest in which Agreement of Sublease (NYT-2) was assigned to and assumed by NYT Building Leasing Company LLC, a New York limited liability company ( NYTBLC ), pursuant to that certain Assignment and Assumption of Sublease dated as of March 6, 2009 between NYTRE, as assignor, and, NYTBLC, as assignee, and recorded in the Office of the City Register of the City of New York on March , 2009 as CRFN , which Agreement of Sublease (NYT-2) has been amended by that certain First Amendment to Agreement of Sublease (NYT-2) between Landlord and NYTBLC dated of even date herewith and intended to be recorded in the Office of the City Register of the City of New York;
WHEREAS , simultaneously herewith the Unit Owners (as defined in the Condominium Declaration) are executing a Fourth Amendment to Declaration of Leasehold Condominium to reflect (i) some minor adjustments, corrections and modifications with respect to the percentage interest in the Common Elements allocated to the Units; and (ii) the combination of Units 1-E (tax lot 1007) and 1-A (tax lot 1003) into one unit to be known as Unit 1-A (tax lot 1003); and
3
WHEREAS, Landlord and Tenant desire to amend the NYTC Sublease for the purposes hereinafter set forth.
NOW, THEREFORE , in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions . All capitalized terms used herein without definition shall have the meanings ascribed to them in the NYTC Sublease.
2. Modified Definitions . The following defined terms set forth in the NYTC Sublease are hereby modified as set forth below:
Demised Premises means a portion of the NYTC Collective Unit (as defined in the Condominium Declaration) consisting of Units 0-A, 1-A, 2-A, 3-A, 4-A, 5-A, 6-A, 7-A, 8-A, 9-A, 10-A, 11-A, 12-A, 13-A, 14-A, 15-A, 16-A, 17-A, 18-A, 19-A, 20-A, 28-A, together with their undivided percentage interest in the Common Elements and the NYTC Limited Common Elements.
3. Legal Description . Exhibit A to the Third Amendment is hereby deleted and replaced in its entirety by the document attached hereto as Exhibit A . All references to Exhibit A in the First Amendment, Second Amendment and Third Amendment shall be deemed to refer to the document attached hereto as Exhibit A .
4. Recording . Landlord and Tenant agree that Tenant shall cause this Amendment to be recorded and that Tenant shall pay any transfer or similar taxes that may be payable as a result of this Amendment.
5. No Other Amendments . As modified by this Amendment, the NYTC Sublease remains in full force and effect.
[the remainder of this page is intentionally blank]
4
IN WITNESS WHEREOF , Landlord and Tenant have executed this Amendment as of the day and year first written above.
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LANDLORD : |
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42ND ST. DEVELOPMENT PROJECT, INC., as Landlord |
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By: |
/s/ Naresh Kapadia |
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Name: Naresh Kapadia |
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Title: Assistant VP, Planning and Design |
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TENANT : |
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620 EIGHTH NYT (NY) LIMITED |
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PARTNERSHIP, a Delaware limited |
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partnership |
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By: 620 EIGHTH GP NYT (NY) LLC, a Delaware limited liability company, its general partner |
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By: CPA:17 LIMITED PARTNERSHIP, a Delaware limited partnership, its sole member |
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By: CORPORATE PROPERTY ASSOCIATES 17 GLOBAL INCORPORATED, a Maryland corporation, its general partner |
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By: |
/s/ Jason E. Fox |
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Name: Jason E. Fox |
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Title: Executive Director |
ACKNOWLEDGED AND AGREED THIS
6TH DAY OF MARCH, 2009
NYT REAL ESTATE COMPANY LLC |
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By: |
/s/ Kenneth A. Richieri |
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Name: Kenneth A. Richieri |
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Title: Manager |
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5
ACKNOWLEDGMENTS
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of 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 of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in h capacity, and that by h signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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Notary Public |
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Commission Expires |
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of 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 of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in h capacity, and that by h signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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Notary Public |
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Commission Expires |
6
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of 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 of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that _he executed the same in h_ capacity, and that by h signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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Notary Public |
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Commission Expires |
7
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 recorded as CRFN , and Fourth Amendment to Declaration dated March 6, 2009 to be recorded with the Register (which Declaration, and any further amendments thereto, are hereinafter collectively called the Declaration ), establishing a plan for leasehold condominium ownership of said Building and the land upon which the same is erected (hereinafter sometimes collectively called the Property ) and also designated and described as Tax Lots No. (SEE SCHEDULE ANNEXED), Block 1012 Section 4, Borough of MANHATTAN on the Tax Map of the Real Property Assessment Department of the City of New York and on the floor plans of said Building certified by 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 Registers 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,
8
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.
9
SCHEDULE OF UNITS
UNIT DESIGNATION |
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TAX LOT |
|
PERCENTAGE INTEREST
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0-A |
|
1001 |
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0.6726% |
1- A |
|
1003 |
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2.0809% |
2-A |
|
1009 |
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4.7683% |
3-A |
|
1010 |
|
4.7719% |
4-A |
|
1011 |
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4.2717% |
5-A |
|
1012 |
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1.6453% |
6-A |
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1013 |
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1.7431% |
7-A |
|
1014 |
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1.7431% |
8-A |
|
1015 |
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1.7431% |
9-A |
|
1016 |
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1.7431% |
10-A |
|
1017 |
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1.7431% |
11-A |
|
1018 |
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1.7431% |
12-A |
|
1019 |
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1.7431% |
13-A |
|
1020 |
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1.7431% |
14-A |
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1021 |
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1.7546% |
15-A |
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1022 |
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1.3954% |
16-A |
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1023 |
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1.7591% |
17-A |
|
1024 |
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1.7312% |
18-A |
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1025 |
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1.7819% |
19-A |
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1026 |
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1.7819% |
20-A |
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1027 |
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1.7819% |
28-A |
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1035 |
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0.4470% |
10
Exhibit 10.5
AGREEMENT OF SUBLEASE (NYT-2)
By and Between
42ND ST. DEVELOPMENT PROJECT, INC.,
Landlord,
and
NYT REAL ESTATE COMPANY LLC
Tenant
Dated as of: March 6, 2009
TABLE OF CONTENTS
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ARTICLE I |
DEFINITIONS; CONSTRUCTION OF TERMS |
3 |
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Section 1.1 |
Definitions |
3 |
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Section 1.2 |
Rules of Construction |
29 |
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Section 1.3 |
Captions/Table of Contents |
30 |
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ARTICLE II |
LEASE OF DEMISED PREMISES AND COMMON ELEMENTS; TERM OF LEASE |
31 |
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Section 2.1 |
Demised Premises and Common Elements; Term |
31 |
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Section 2.2 |
Condition of Demised Premises and Common Elements |
31 |
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Section 2.3 |
Waiver of Right to Rescind |
32 |
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ARTICLE III |
CHARGES AND FEES |
33 |
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Section 3.1 |
PILOT |
33 |
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Section 3.2 |
Retail Space Percentage Rent Calculation of Percentage Rent |
35 |
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Section 3.3 |
[INTENTIONALLY OMITTED] |
37 |
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Section 3.4 |
Exemption from Mortgage Recording Tax; PILOMRT |
37 |
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Section 3.5 |
Theater Surcharge |
38 |
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Section 3.6 |
Administrative Fee |
39 |
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Section 3.7 |
Prorations; Overdue Amounts |
39 |
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Section 3.8 |
No Joint Venture |
40 |
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Section 3.9 |
All Charges Treated as Rent |
40 |
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Section 3.10 |
Payments |
40 |
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Section 3.11 |
Net Lease |
40 |
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Section 3.12 |
No Offset |
41 |
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Section 3.13 |
Books and Records |
41 |
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Section 3.14 |
Illegality |
43 |
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Section 3.15 |
Administrative Code Section 11-208.1 |
43 |
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Section 3.16 |
Survival |
43 |
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Section 3.17 |
Existing Violations |
43 |
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ARTICLE IV |
IMPOSITIONS |
44 |
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Section 4.1 |
Impositions |
44 |
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Section 4.2 |
Payment |
44 |
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TABLE OF CONTENTS
(continued)
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Section 4.3 |
Right to Contest |
44 |
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ARTICLE V |
PURCHASE OPTION |
46 |
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Section 5.1 |
Purchase Option |
46 |
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Section 5.2 |
Casualty to, or Condemnation of, the Property |
49 |
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Section 5.3 |
Termination of Right to Purchase |
49 |
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ARTICLE VI |
CONSTRUCTION OF THE PROJECT |
50 |
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Section 6.1 |
Construction of the Project |
50 |
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Section 6.2 |
Plans and Specifications |
56 |
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Section 6.3 |
Performance of Construction Work |
59 |
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Section 6.4 |
Use of Plans and Specifications |
63 |
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Section 6.5 |
Conditions Precedent to Commencement of Demolition, Asbestos Removal and Lead Abatement |
64 |
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Section 6.6 |
Construction of Tenants Subway Improvements |
67 |
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Section 6.7 |
Final Completion; Permanent Certificate of Occupancy |
67 |
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Section 6.8 |
Construction Agreements |
68 |
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Section 6.9 |
Construction Sign |
68 |
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Section 6.10 |
Project Area |
68 |
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Section 6.11 |
Title to Materials |
69 |
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Section 6.12 |
Nonadverse Structural Effect |
69 |
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Section 6.13 |
Arbitration |
69 |
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ARTICLE VII |
USE AND MAINTENANCE OF THE PROPERTY |
69 |
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Section 7.1 |
Permitted Use |
69 |
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Section 7.2 |
Restrictions on Use |
70 |
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Section 7.3 |
Maintenance Obligations |
70 |
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Section 7.4 |
Compliance with Legal Requirements |
71 |
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Section 7.5 |
No Waste |
72 |
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Section 7.6 |
Right of Entry |
72 |
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Section 7.7 |
Utilities; Services; No Landlord Responsibility |
73 |
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Section 7.8 |
Environmental |
73 |
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Section 7.9 |
Equitable Relief |
74 |
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Section 7.10 |
Windows |
74 |
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TABLE OF CONTENTS
(continued)
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Section 7.11 |
Adverse Possession |
74 |
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Section 7.12 |
[INTENTIONALLY OMITTED] |
74 |
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ARTICLE VIII |
REPAIRS |
74 |
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Section 8.1 |
Repairs |
74 |
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ARTICLE IX |
ALTERATIONS AND COMPLETION OF THE IMPROVEMENTS |
76 |
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Section 9.1 |
Right to Undertake Alterations |
76 |
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Section 9.2 |
Performance of Alterations |
76 |
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Section 9.3 |
Construction Agreements |
79 |
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Section 9.4 |
Use of Plans and Specifications |
80 |
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Section 9.5 |
Major Alterations |
81 |
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Section 9.6 |
Approval of Project Participants |
84 |
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Section 9.7 |
Alterations Certification |
87 |
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Section 9.8 |
Reimbursement of Expenses of Review |
88 |
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Section 9.9 |
Nonadverse Structural Effect |
88 |
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Section 9.10 |
Completion of Improvements |
88 |
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Section 9.11 |
Disputes |
89 |
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ARTICLE X |
INSURANCE |
89 |
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Section 10.1 |
Insurance |
89 |
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Section 10.2 |
Requirements for Policies |
91 |
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Section 10.3 |
Waiver of Subrogation |
92 |
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Section 10.4 |
Delivery of Policies |
93 |
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Section 10.5 |
Separate Insurance |
93 |
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Section 10.6 |
Cooperation; Adjustment |
93 |
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Section 10.7 |
Approval by Landlord |
94 |
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Section 10.8 |
Depositary |
94 |
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Section 10.9 |
Security for Commercial Property Insurance Premium |
94 |
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ARTICLE XI |
DAMAGE AND DESTRUCTION |
95 |
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Section 11.1 |
Damage and Destruction |
95 |
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Section 11.2 |
Restoration Funds |
98 |
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Section 11.3 |
Conditions Precedent to Disbursement |
99 |
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Section 11.4 |
Section 227 of Real Property Law |
100 |
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TABLE OF CONTENTS
(continued)
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Section 11.5 |
Additional Requirements for Restoration |
100 |
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Section 11.6 |
Effect of Casualty on this Lease |
100 |
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ARTICLE XII |
CONDEMNATION |
101 |
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Section 12.1 |
Condemnation |
101 |
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Section 12.2 |
Date of Taking |
101 |
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Section 12.3 |
Minor Taking; Condemnation Restoration |
101 |
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Section 12.4 |
Additional Restoration Requirements |
103 |
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Section 12.5 |
Temporary Taking |
103 |
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Section 12.6 |
Right to Compensation |
103 |
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Section 12.7 |
Settlement; Compromise |
103 |
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ARTICLE XIII |
ASSIGNMENT, SUBLETTING AND TRANSFER |
104 |
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Section 13.1 |
Transfers Generally |
104 |
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Section 13.2 |
Subleasing |
105 |
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Section 13.3 |
Assignments |
109 |
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Section 13.4 |
Collect Charges from Assignee, Subtenant |
109 |
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Section 13.5 |
No Relief |
110 |
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Section 13.6 |
Consent |
110 |
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Section 13.7 |
Costs and Expenses |
110 |
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Section 13.8 |
Prohibited Persons |
110 |
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Section 13.9 |
Constitutive Documents |
111 |
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Section 13.10 |
Permitted Disposition |
111 |
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ARTICLE XIV |
DEFAULT PROVISIONS |
114 |
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Section 14.1 |
Conditions of Limitation |
114 |
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Section 14.2 |
Events of Default |
115 |
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Section 14.3 |
Rights of Landlord |
117 |
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Section 14.4 |
Waiver of Right of Redemption |
118 |
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Section 14.5 |
No Waiver |
119 |
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Section 14.6 |
Remedies Under Bankruptcy and Insolvency Codes |
119 |
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Section 14.7 |
Relationship Among Severance Tenants |
120 |
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ARTICLE XV |
LANDLORDS RIGHT TO PERFORM |
121 |
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Section 15.1 |
Right to Perform |
121 |
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TABLE OF CONTENTS
(continued)
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Section 15.2 |
Additional Remedies |
121 |
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Section 15.3 |
Strict Performance |
122 |
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Section 15.4 |
Right to Enjoin Defaults or Threatened Defaults |
122 |
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ARTICLE XVI |
ARBITRATION |
123 |
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Section 16.1 |
Generally |
123 |
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Section 16.2 |
Standard Arbitration |
123 |
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Section 16.3 |
Expedited Arbitration |
125 |
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Section 16.4 |
Single Arbitration |
127 |
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ARTICLE XVII |
INDEMNITY; LIMITATION ON LIABILITY |
128 |
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Section 17.1 |
Indemnification by Tenant |
128 |
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Section 17.2 |
Indemnification Generally |
129 |
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Section 17.3 |
Recourse Only to Landlords Estate in the Demised Premises and the Common Elements |
129 |
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Section 17.4 |
Recourse Only to Tenants Estate in the Demised Premises and the Common Elements |
130 |
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Section 17.5 |
Survival |
131 |
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ARTICLE XVIII |
QUIET ENJOYMENT; TRANSFER OF LANDLORDS INTEREST |
132 |
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Section 18.1 |
Quiet Enjoyment |
132 |
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Section 18.2 |
Transfer of Landlords Interest |
132 |
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ARTICLE XIX |
WAIVER OF JURY TRIAL; COUNTERCLAIMS |
133 |
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Section 19.1 |
Waiver of Jury Trial |
133 |
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Section 19.2 |
No Counterclaims |
133 |
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Section 19.3 |
Survival |
133 |
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ARTICLE XX |
NOTICES |
134 |
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Section 20.1 |
Notices |
134 |
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ARTICLE XXI |
ESTOPPEL CERTIFICATE |
136 |
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Section 21.1 |
Certificate of Tenant |
136 |
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Section 21.2 |
Certificate of Landlord |
136 |
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Section 21.3 |
[INTENTIONALLY OMITTED] |
136 |
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ARTICLE XXII |
SEVERABILITY |
137 |
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Section 22.1 |
Severability |
137 |
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TABLE OF CONTENTS
(continued)
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ARTICLE XXIII |
END OF TERM; TITLE TO IMPROVEMENTS |
138 |
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Section 23.1 |
Surrender |
138 |
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Section 23.2 |
Re-Entry |
139 |
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Section 23.3 |
Removal of Property |
139 |
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Section 23.4 |
Title to Improvements |
140 |
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ARTICLE XXIV |
COVENANTS BINDING |
141 |
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Section 24.1 |
Covenants Binding |
141 |
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ARTICLE XXV |
ENTIRE AGREEMENT; NO WAIVER |
142 |
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Section 25.1 |
Entire Agreement |
142 |
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Section 25.2 |
No Waiver |
142 |
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ARTICLE XXVI |
NO MERGER |
143 |
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Section 26.1 |
No Merger |
143 |
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ARTICLE XXVII |
ENCUMBRANCES |
144 |
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Section 27.1 |
Encumbrances |
144 |
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ARTICLE XXVIII |
CONSENTS; APPROVALS |
145 |
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Section 28.1 |
Reasonable Standard |
145 |
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Section 28.2 |
No Damages |
145 |
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Section 28.3 |
Deemed Consent |
145 |
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ARTICLE XXIX |
NON-DISCRIMINATION AND AFFIRMATIVE ACTION |
147 |
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Section 29.1 |
Incorporation by Reference |
147 |
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ARTICLE XXX |
REPRESENTATIONS, WARRANTIES AND COVENANTS, AND OTHER AGREEMENTS |
148 |
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Section 30.1 |
Representations and Warranties |
148 |
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Section 30.2 |
Possession |
149 |
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Section 30.3 |
Covenants of Tenant |
149 |
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Section 30.4 |
[INTENTIONALLY OMITTED] |
149 |
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Section 30.5 |
Other Agreements |
149 |
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ARTICLE XXXI |
PERMITTED FINANCING |
150 |
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Section 31.1 |
Recognized Mortgage |
150 |
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Section 31.2 |
Right and Time to Cure |
151 |
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Section 31.3 |
Notice to Landlord |
152 |
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Section 31.4 |
Acceptance of Performance |
152 |
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TABLE OF CONTENTS
(continued)
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Section 31.5 |
Other Defaults |
152 |
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Section 31.6 |
Execution of New Lease |
152 |
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Section 31.7 |
Recognition of Most Senior Recognized Mortgagee |
156 |
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Section 31.8 |
No Rights of Other Mortgagees |
157 |
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Section 31.9 |
Miscellaneous Mortgage Provisions |
157 |
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Section 31.10 |
Delegation by Tenant |
158 |
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Section 31.11 |
Survival |
158 |
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ARTICLE XXXII |
CONDOMINIUM DOCUMENTS |
159 |
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Section 32.1 |
Condominium Conversion |
159 |
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Section 32.2 |
Condominium Documents |
159 |
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ARTICLE XXXIII |
MISCELLANEOUS |
160 |
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Section 33.1 |
Recording and Transfer Tax |
160 |
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Section 33.2 |
Brokers |
160 |
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Section 33.3 |
[INTENTIONALLY OMITTED] |
160 |
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Section 33.4 |
Relationship of Landlord and Tenant |
160 |
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Section 33.5 |
Person Acting on Behalf of a Party Hereunder |
161 |
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Section 33.6 |
Third Party Beneficiary |
161 |
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Section 33.7 |
Proprietary Capacity Only |
161 |
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ARTICLE XXXIV |
LOBBY SUBLEASE SPACE |
162 |
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Section 34.1 |
Generally |
162 |
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Section 34.2 |
Defined Terms |
162 |
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SCHEDULES |
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SCHEDULE 1 |
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PILOT SCHEDULE |
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EXHIBITS |
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EXHIBIT A |
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THE PROJECT DOCUMENTS |
EXHIBIT B |
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APPROVED CERTIFIED PUBLIC ACCOUNTING FIRMS |
EXHIBIT C |
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FORM OF COLLATERAL ASSIGNMENT |
EXHIBIT D |
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INTENTIONALLY OMITTED |
EXHIBIT E-1 |
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DESIGN, CONSTRUCTION AND MAINTENANCE REQUIREMENTS FOR CONSTRUCTION OF BRIDGES AND FENCING |
EXHIBIT E-2 |
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HISTORIC PRESERVATION PROTECTION PLAN FOR CONSTRUCTION ADJACENT TO HISTORIC STRUCTURES |
EXHIBIT E-3 |
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STREETSCAPE IMPROVEMENT DESIGN PROGRAMS |
EXHIBIT E-4 |
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DISPLAY AND SIGNAGE REQUIREMENTS |
EXHIBIT E-5 |
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USE AND OPERATING PROGRAMS |
EXHIBIT E-6 |
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ARCHITECTURAL REQUIREMENTS |
EXHIBIT E-7 |
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SITE SAFETY PROGRAM |
EXHIBIT F-1 |
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DEMISED PREMISES |
EXHIBIT F-2 |
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LAND |
EXHIBIT G |
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PERMITTED ENCUMBRANCES |
EXHIBIT H |
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FORM OF NOTICE OF UNREIMBURSED ESAC |
EXHIBIT I |
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APPROVED MAJOR CONTRACTORS |
EXHIBIT J |
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STATEMENT OF ENGINEER OR ARCHITECT |
EXHIBIT K |
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FORM OF NONDISTURBANCE AGREEMENT |
EXHIBIT L |
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[INTENTIONALLY OMITTED] |
EXHIBIT M |
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FORM OF NOTICE OF DEFAULT |
EXHIBIT N |
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FORM OF SECOND NOTICE OF DEFAULT |
EXHIBIT O |
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NON-DISCRIMINATION AND AFFIRMATIVE ACTION |
EXHIBIT P |
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STRUCTURE OF TENANT |
EXHIBIT Q |
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[INTENTIONALLY OMITTED] |
EXHIBIT R |
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FORM OF MEMORANDUM OF LEASE |
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This AGREEMENT OF SUBLEASE (this Lease ), is made as of the 6th day of March, 2009, by and between 42ND ST. DEVELOPMENT PROJECT, INC. ( 42DP ), a subsidiary of New York State Urban Development Corporation ( UDC ) d/b/a Empire State Development Corporation ( ESDC ), a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, having an office at 633 Third Avenue, 33rd floor, New York, New York 10017, as landlord (in such capacity, Landlord ), and NYT REAL ESTATE COMPANY LLC, a New York limited liability company, having an office at c/o The New York Times Company, 620 Eighth Avenue, New York, New York 10018, as tenant (in such capacity T enant ).
W I T N E S S E T H :
WHEREAS , Landlord and The New York Times Building LLC ( NYTB ) entered into that certain Agreement of Lease dated as of December 12, 2001, as amended by letter dated April 8, 2004 (the Initial Ground Lease ) with respect to certain land more particularly therein and all improvements then or thereafter located thereon;
WHEREAS , NYTB, as landlord, entered into (a) that certain Agreement of Sublease dated as of December 12, 2001 with Tenant, as tenant (the Initial NYTC Sublease ), (b) that certain Agreement of Sublease (Office) dated as of December 12, 2001 with FC Lion LLC ( FC Lion ), as tenant (the Initial FC Office Sublease ), and (c) that certain Agreement of Sublease (Retail) dated as of December 12, 2001 with FC Lion, as tenant (the Initial FC Retail Sublease ; and collectively with the Initial NYTC Sublease and the Initial FC Office Sublease, the Initial Severance Leases );
WHEREAS , NYTB submitted the Initial Ground Lease to a leasehold condominium structure pursuant to Article 9-B of the Real Property Law of the State of New York;
WHEREAS , pursuant to that certain Assignment and Assumption Agreement dated as of August 15, 2006 (being the Lease Assignment Date under the Initial Ground Lease) between NYTB and Landlord (the Assignment ), NYTB assigned to Landlord all of NYTBs right, title and interest in and to the Initial Ground Lease and the Initial Severance Subleases;
WHEREAS , pursuant to the provisions of the Initial Ground Lease and the Assignment, the Assignment did not cause a merger of the interests of landlord and tenant under the Initial Ground Lease, which interests are and remain separate and distinct;
WHEREAS, the Initial Ground Lease was amended and restated pursuant to Amended and Restated Agreement of Lease dated as of August 15, 2006 and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644736, which Amended and Restated Agreement of Lease was amended by First Amendment to Amended and Restated Agreement of Lease dated as of January 29, 2007 and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100154;
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WHEREAS , the Initial NYTC Sublease was amended pursuant to First Amendment to Agreement of Sublease (NYT) dated as of 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 as of 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 (the Initial NYTC Sublease, as so amended, and as further amended by the Third Amendment, hereinafter defined, the Existing NYTC Sublease );
WHEREAS, pursuant to that certain Assignment and Assumption of FC Severance Sublease dated as of August 15, 2006 between FC Lion, as assignor, and FC Eighth Ave., LLC, a Delaware limited liability company ( FC Eighth ), as assignee, and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 200600644730 FC Lion assigned to FC Eighth, and FC Eighth assumed, all of FC Lions right, title and interest in, to and under the Initial FC Office Sublease;
WHEREAS, pursuant to that certain Assignment and Assumption of FC Severance Sublease dated as of August 15, 2006 between FC Lion, as assignor, and FC Eighth, as assignee, and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 200600644731, FC Lion assigned to FC Eighth, and FC Eighth assumed, all of FC Lions right, title and interest in, to and under the Initial FC Retail Sublease;
WHEREAS , the Initial FC Office Sublease was amended pursuant to First Amendment to Agreement of Sublease (Office) dated as of August 15, 2006 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644733, by Second Amendment to Agreement of Sublease (Office) dated as of January 29, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100155, by Third Amendment to Agreement of Sublease (Office) dated as of October 11, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on January 8, 2008 as CRFN 2008000008732, and by Fourth Amendment to Agreement of Sublease (Office) of even date herewith between Landlord and FC Eighth and intended to be recorded in the Office of the City Register of the City of New York (the Initial FC Office Sublease, as so assigned and amended, the FC Office Sublease );
WHEREAS , the Initial FC Retail Sublease was amended pursuant to First Amendment to Agreement of Sublease (Retail) dated as of August 15, 2006 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644734, by Second Amendment to Agreement of Sublease (Retail) dated as of January 29, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100156, by Third Amendment to Agreement of Sublease (Retail) dated as of October 11, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on January 8, 2008 as CRFN 2008000008733, and by Fourth Amendment to Agreement of Sublease (Retail) of even date herewith between Landlord and FC Eighth and intended to be recorded in the Office of the City Register of the City of New York (the Initial FC Retail Sublease, as so assigned and amended, the FC Retail Sublease );
2
WHEREAS, by Third Amendment to Agreement of Sublease (NYT) of even date herewith and intended to be recorded in the Office of the City Register of the City of New York (the Third Amendment ), Landlord and Tenant further modified the Existing NYTC Sublease, inter alia , to remove from the premises demised thereunder a portion of the NYTC Collective Unit (as defined in the Condominium Declaration) consisting of Units 21-A, 22-A, 23-A, 24-A, 25-A, 26-A and 27-A, together their undivided percentage interest in the Common Elements and the NYTC Limited Common Elements, as more particularly described on Exhibit F-1 annexed hereto (the Demised Premises ), upon the condition that Landlord and Tenant enter into this Lease covering the Demised Premises;
WHEREAS, this Lease, the Existing NYTC Sublease, the FC Office Sublease, the FC Retail Sublease, any New Office Subleases (as defined in the FC Office Sublease) and any new leases entered into pursuant to Section 31.6 of any of the foregoing are referred to herein, collectively, as the Severance Subleases ;
WHEREAS, ESDC, 42DP, Landlord, Tenant, NYCEDC, the City and certain other parties, as applicable, are parties to the documents listed on Exhibit A attached hereto (the Project Documents );
WHEREAS, Landlord and Tenant wish to provide for the operation and maintenance of the Demised Premises and the Common Elements;
WHEREAS, the parties intend that Tenant have all of the rights and obligations of the Unit Owner (as defined and described in the Condominium Declaration) as they relate to the Demised Premises and the Common Elements, including without limitation, the right to control the Units (as defined and described in the Condominium Declaration) that correspond to the space comprising the Demised Premises under this Lease, subject and pursuant to the Condominium Declaration; and
WHEREAS, Tenant wishes to hire and to take from Landlord, and Landlord wishes to lease and to demise to Tenant, the Demised Premises, together with an undivided interest in the Common Elements.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby covenant and agree as follows:
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It is agreed that in making the calculation set forth in this Section 3.2(a) , in respect of the Lease Year during which the Lease Assignment Date has occurred, the Lobby Sublease Space Adjusted Gross Revenues for such Lease Year shall be the Lobby Sublease Space Adjusted Gross Revenues for such entire Lease Year.
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YOUR APPROVAL OF AS THE DESIGN ARCHITECT SHALL
BE DEEMED GIVEN IF YOU FAIL TO APPROVE OR REJECT SUCH PERSON WITHIN FIVE (5) BUSINESS DAYS FROM THE DATE OF YOUR RECEIPT OF THIS NOTICE.
If Landlord fails to approve or reject the proposed architect within five (5) Business Days after its receipt of such reminder notice, such architect shall be deemed approved by Landlord. Any rejection of an architect by Landlord shall be accompanied by specific reasons set forth in reasonable detail.
53
YOUR APPROVAL OF AS AN ARCHITECT/ENGINEER SHALL
BE DEEMED GIVEN IF YOU FAIL TO APPROVE OR REJECT SUCH PERSON WITHIN FIVE (5) BUSINESS DAYS FROM THE DATE OF YOUR RECEIPT OF THIS NOTICE.
If Landlord fails to approve or reject the proposed architect or engineers, as the case may be, within five (5) Business Days after its receipt of such reminder notice, such architect or engineer, as the came may be, shall be deemed approved by Landlord. Any rejection of an architect or engineer, as the case may be, by Landlord shall be accompanied by specific reasons setting forth in reasonable detail the basis for such rejection.
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YOUR APPROVAL OF AS A MEMBER OF A DEVELOPMENT
TEAM SHALL BE DEEMED GIVEN IF YOU FAIL TO APPROVE OR REJECT SUCH PERSON WITHIN FIVE (5) BUSINESS DAYS FROM THE DATE OF YOUR RECEIPT OF THIS NOTICE.
If Landlord fails to approve or reject such proposed member of the Development Team within five (5) Business Days after its receipt of such reminder notice, such proposed member of the Development Team shall be deemed approved by Landlord. Any rejection of such a member of the Development Team by Landlord shall be accompanied by specific reasons setting forth in reasonable detail the bases for such rejection.
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YOUR APPROVAL OF AS A MAJOR CONTRACTOR SHALL BE
DEEMED GIVEN IF YOU FAIL TO APPROVE OR REJECT SUCH PERSON WITHIN FIVE (5) BUSINESS DAYS FROM THE DATE OF YOUR RECEIPT OF THIS NOTICE.
If Landlord fails to approve or reject the proposed Major Contractor within five (5) Business Days after its receipt of such reminder notice, such Major Contractor shall be deemed approved by Landlord. Any rejection of a Major Contractor by Landlord shall be accompanied by specific reasons set forth in reasonable detail. Landlord approves, on the date hereof, the Major Contractors listed on Exhibit N attached hereto.
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Nothing in this Section 6.4 shall permit the selection by Tenant and approval of a Design Architect other than in accordance with Section 6.1(d) hereof. The provisions of this Section 6.4 shall survive any such expiration or earlier termination of this Lease.
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Nothing in this Section 6.5(c) shall permit Tenant to undertake any excavation on the Property. In the event that litigation is commenced against Landlord in respect of the Property and Landlord reasonably demonstrates that such litigation is directly related to Tenants initiating of demolition of Existing Improvements prior to the removal of all occupants from the Property, then each Non-Delivery Event shall be extended by a period of time equal to the duration of such litigation. Tenant shall indemnify, defend and hold harmless each Public Party and its respective officers, directors, members, managers, shareholders, agents and affiliates, and the successor and assigns of each of the foregoing, from and against all claims, actions, causes of action, losses, damages and expenses (including, without limitation, reasonable attorneys fees and expenses) suffered or incurred by the Public Parties arising out of or related to (1) the aforesaid litigation and (2) any additional costs incurred hereunder due to Demolition Work performed pursuant to this Section 6.5(c). Upon the request of Landlord, in Landlords sole discretion, Tenant shall promptly cease all Demolition Work implicated in such litigation. Landlord acknowledges that Tenants access to less than all of the Existing Improvements pursuant to this Section 6.5(c) shall not be deemed delivery of Possession of the Property or any portion thereof.
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Nothing in this Section 9.4 shall permit the selection and approval by Tenant of a Design Architect other than in accordance with Section 9.6(a) hereof. The provisions of this Section 9.4 shall survive any such expiration or earlier termination of this Lease.
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YOUR APPROVAL OF AS THE DESIGN ARCHITECT SHALL BE DEEMED GIVEN IF YOU FAIL TO APPROVE OR REJECT SUCH PERSON WITHIN FIVE (5) BUSINESS DAYS FROM THE DATE OF YOUR RECEIPT OF THIS NOTICE.
If Landlord fails to approve or reject the proposed architect within five (5) Business Days after its receipt of such reminder notice, such architect shall be deemed approved by Landlord. Any rejection of an architect by Landlord shall be accompanied by specific reasons set forth in reasonable detail.
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YOUR APPROVAL OF AS AN ARCHITECT/ENGINEER SHALL BE DEEMED GIVEN IF YOU FAIL TO APPROVE OR REJECT SUCH PERSON WITHIN FIVE (5) BUSINESS DAYS FROM THE DATE OF YOUR RECEIPT OF THIS NOTICE.
If Landlord fails to approve or reject the proposed architect or engineers, as the case may be, within five (5) Business Days after its receipt of such reminder notice, such architect or engineer, as the came may be, shall be deemed approved by Landlord. Any rejection of an architect or engineer, as the case may be, by Landlord shall be accompanied by specific reasons setting forth in reasonable detail the basis for such rejection.
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YOUR APPROVAL OF AS A MAJOR CONTRACTOR SHALL BE DEEMED GIVEN IF YOU FAIL TO APPROVE OR REJECT SUCH PERSON WITHIN FIVE (5) BUSINESS DAYS FROM THE DATE OF YOUR RECEIPT OF THIS NOTICE.
If Landlord fails to approve or reject the proposed Major Contractor within five (5) Business Days after its receipt of such reminder notice, such Major Contractor shall be deemed approved by Landlord. Any rejection of a Major Contractor by Landlord shall be accompanied by specific reasons set forth in reasonable detail. Landlord approves, as of December 12, 2001, the Major Contractors listed on Exhibit I attached hereto.
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100
101
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For any Sublease by Tenant for which Tenant requests that Landlord enter into a Nondisturbance Agreement, Tenant shall give written notice thereof to Landlord ( Tenants Sublet Notice ) accompanied by a copy of the Sublease as fully executed or in executable form and such information as Landlord may require to determine whether the proposed Subtenant is a Prohibited Person. Tenants Sublet Notice shall contain the following information: the name of the proposed Subtenant, the portion of the Demised Premises to be sublet, the proposed term of the Sublease (including the effective date thereof), the proposed Sublease rental and such financial and other background information with respect to the proposed Subtenant as is reasonably sufficient to allow Landlord to assess the financial condition, relevant experience, and all other material economic terms of the proposed Sublease (but only to the extent the same are conditions under this Section 13.2(b) to Landlords obligation to enter into a Nondisturbance
107
Agreement). Landlord shall reasonably cooperate with Tenant after receiving Tenants Sublet Notice to expedite the granting of the applicable Nondisturbance Agreement. Disputes regarding this Section 13.2(b) , may be referred to arbitration pursuant to Section 16.3 hereof.
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109
110
YOU SHALL BE DEEMED TO HAVE DETERMINED THAT IS NOT A PROHIBITED PERSON IF YOU FAIL TO NOTIFY TENANT OF WHETHER SUCH PERSON IS A PROHIBITED PERSON WITHIN TEN (10) BUSINESS DAYS FROM THE DATE OF YOUR RECEIPT OF THIS NOTICE.
If Landlord fails to notify Tenant of whether such Person is a Prohibited Person within ten (10) Business Days after its receipt of such reminder notice, then such Person shall be deemed not to be a Prohibited Person.
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(1) if (x) the Indicted Party is found not guilty of the felony for which it is indicted or (y) the felony charges against such Indicted Party are dismissed or changed or reduced to charges that do not constitute an intentional felony, then the trustee shall give back the Indicted Partys interest in Tenant or in this Lease to the Indicted Party, and the Indicted Party shall have the right to be a director and hold office in Tenant;
(2) if (x) the Indicted Party is found guilty of the felony for which it is indicted and such verdict is affirmed by the court having ultimate jurisdiction to hear any appeal of such conviction or the period of appeal expires or the Indicted Party waives any right to appeal such determination or (y) the Indicted Party pleads guilty to the felony for which it is indicted or another intentional felony (as to which a Hearing is held and a determination made that a Permitted Disposition by the Indicted Party is in the best interest of the City) (either (x) or (y) above, a Conviction ), then the trustee shall assign this Lease or make a sale of the Indicted Partys interest in Tenant, as the case may be, within six (6) months after the date of the Conviction to a Person or Persons permitted under clause(s) (i) and (ii) above; and
(3) during the pendency of any such trust, the Indicted Party shall exercise no control over any portion of the Demised Premises or Tenant, as the case may be, but may make contributions to the Demised Premises or Tenant, as the case may be, and receive distributions therefrom. Landlord shall be deemed to have determined that a Person is satisfactory to Landlord under clause (i) above if Landlord shall not have delivered notice to Tenant that the proposed Person to whom the Permitted Disposition is to be made is unsatisfactory with forty-five (45) days after Tenant makes a written request accompanied by such financial and biographical information and other documentation as Landlord may reasonably require in making the determination. Neither the giving of the Indicted Partys interest in this Lease or Tenant, as the case may be, to a Trustee, nor the giving back by a Trustee to the Indicted Party of such interest, shall constitute an Assignment or Equity Interest Disposition. No Permitted Disposition which complies with the requirements of this Section 13.10(d)(3) shall constitute a default on the part of Tenant under this Lease.
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115
116
117
118
119
120
121
122
123
124
125
126
127
Notwithstanding the above, Tenant shall have no duty to indemnify Landlord or any of the Public Parties from such Claims to the extent such Claims (1) arise from a failure or alleged failure on the part of Landlord to perform or comply with any agreement between Landlord and a
128
third party not covered by this Lease, or (2) in respect of Sections 17.1(a) and 17.1(b) hereof, arise prior to the Delivery Date ( provided , however , the limitation contained in this clause (2) shall not apply to the extent such Claims are based on Tenants negligence, willful misconduct, alleged violation of Legal Requirements or failure to comply with the terms of this Lease).
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Notwithstanding anything to the contrary in the foregoing, Landlord shall not have recourse to the assets or property of any Principal of Tenant that is an individual for satisfaction of any claim under this Lease.
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132
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42nd St. Development Project, Inc.
633 Third Avenue, 33rd floor
New York, New York 10017
Attention: President
With copies to:
(i)
1.
New York City Economic Development Corporation
110 William Street
New York, New York 10038
Attention: President
(ii)
New
York City Law Department
100 Church Street
New York, New York 10007
Attention: Chief, Economic Development
Division
(iii)
Shearman &
Sterling LLP
599 Lexington Avenue
New York, New York 10022-6069
Attention: Chris M. Smith, Esq.
(3578/13)
(iv)
Goulston &
Storrs, PC
750 Third Avenue
22nd Floor
New York, NY 10017
Attention: Max Friedman, Esq.
(v)
New
York State Urban Development Corporation
d/b/a Empire State Development Corporation
633 Third Avenue
New York, New York 10017
Attention: 42nd Street Development
Project, Inc.
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NYT Real Estate
Company LLC
c/o The New York Times Company
620 Eighth Avenue
New York, New York 10018
Attention: General Counsel
With copies to:
(i)
The
New York Times Company
620 Eighth Avenue
New York, New York 10018
Attention: Director of Real Estate
DLA Piper LLP (US)
1251 Avenue of the Americas
New York, New York 10020
Attention: Martin D. Polevoy, Esq.
or to such other address as may be specified by written notice sent in accordance herewith. No notice, demand, request or other communication hereunder shall be effective unless given as aforesaid.
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by this Lease and any and all other documents of every kind and nature whatsoever relating to the operation of the Demised Premises or the Common Elements, to the extent in Tenants possession or otherwise obtainable by Tenant upon request, and (vii) all keys to the Demised Premises or the Common Elements.
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Manager or such Subtenant at any such time at Tenants own cost and expense, provided that Landlord shall give Tenant at least thirty (30) days prior written notice requesting the removal of any such personal property of Tenant, such Manager or such Subtenant from the Demised Premises and the Common Elements. From and after the Expiration Date, Landlord shall not be responsible for any loss or damage occurring to any property owned by Tenant, such Manager or any Subtenant.
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YOUR CONSENT TO THE [DESCRIBE REQUEST] SHALL BE DEEMED GIVEN IF YOU FAIL TO RESPOND TO THIS REQUEST WITHIN [SPECIFIED PERIOD] FROM THE DATE OF YOUR RECEIPT OF THIS NOTICE.
Whenever the period of time for Landlord to respond to Tenants request for Landlords consent is not specified, such period of time shall be deemed to be twenty-three (23) Business Days from receipt of Tenants notice requesting such consent, and Landlords consent shall be deemed given if Landlord shall have not responded to such request within such twenty-three Business Day period, provided that Tenants request shall contain the aforementioned notice, appropriately modified. The provisions of this Section 28.3(a) shall not apply to consents covered by Section 28.3(b) hereof or to any other provision of this Lease that specifically
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provides for additional or other conditions for the granting of Landlords deemed consent. Notwithstanding anything to the contrary in the foregoing, if within the period specified for Landlord to respond to Tenants consent request Landlord makes a reasonable request to Tenant for additional information regarding the subject matter of such consent request, the period of time for Landlord to respond to Tenants request shall not commence until Landlord receives the requested information.
THIS CONSENT REQUEST IS SUBJECT TO THE DEEMED CONSENT PROVISIONS OF SECTION 28.3(B) OF THE LEASE.
If Landlord fails to respond to Tenants request within twenty-three (23) Business Days from receipt of Tenants notice requesting Landlords consent, or Landlord fails to make a reasonable request for additional information related thereto within such thirty-day period and thereafter to respond to such request within twenty-three (23) Business Days after written submission of such additional information as Landlord shall have reasonably requested, Tenant shall have the right to give Landlord a reminder notice, which reminder notice shall contain the following caption in bold and capitalized type:
YOUR CONSENT TO THE [DESCRIBE REQUEST] SHALL BE DEEMED GIVEN IF YOU FAIL TO RESPOND TO THIS REQUEST WITHIN FIVE (5) BUSINESS DAYS FROM THE DATE OF YOUR RECEIPT OF THIS NOTICE.
If Landlord fails to grant or deny the requested consent within five (5) Business Days after its receipt of such reminder notice, Landlords consent thereof shall be deemed given. Whenever in the above-enumerated provisions of this Lease the period of time for Landlord to respond to Tenants request for Landlords consent is specified, the foregoing provisions of this Section 28.3(b) shall apply, except that all references above to twenty-three (23) Business Days shall be replaced by the period of time so specified.
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NYCEDC or the City in no event whatsoever shall be liable for any latent or patent defects in the Demised Premises or the Common Elements.
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attorneys fees and disbursements and court costs, incurred by Landlord in connection with (A) the enforcement of Landlords rights and remedies with respect to all defaults or Events of Default in existence at the time of the termination of the Lease (to the extent set forth in the notice to be delivered pursuant to Section 31.6(a) hereof), (B) the termination of this Lease and (C) the preparation of such new lease; (ii) unless Landlord concurrently receives an assumption in writing by such Recognized Mortgagee, its designees or nominee of Tenants obligations, if any, under the Project Documents; and (iii) if Landlord is not then allowed to enter into such new lease by order of a court of competent jurisdiction. To the extent not set forth in the notice given to the Recognized Mortgagee pursuant to Section 31.6(a) hereof, Landlord agrees to notify the Recognized Mortgagee, concurrently with the giving of such new lease, of any unperformed Obligations of, and/or defaults by, Tenant, which, to the best of Landlords knowledge, then exist.
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claims of persons or entities claiming through or under Landlord, other than Tenant and those claiming by, through or under Tenant.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Lease as of the day and year first above written.
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Landlord : |
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42nd ST. DEVELOPMENT PROJECT, INC. |
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By: |
/s/ Naresh Kapadia |
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Name: Naresh Kapadia |
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Title: Assistant VP, Planning and Design |
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Tenant : |
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NYT REAL ESTATE COMPANY LLC |
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By: |
/s/ Kenneth A. Richieri |
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Name: |
Kenneth A. Richieri |
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Title: |
Manager |
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SCHEDULE 1
PILOT SCHEDULE
PILOT Year |
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Office PILOT
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Retail PILOT
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1 |
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$ |
1.00 |
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$ |
1.00 |
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2 |
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3.00 |
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3.00 |
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3 |
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5.00 |
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5.00 |
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4 |
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7.00 |
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7.00 |
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5 |
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10.00 |
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12.00 |
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6 |
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10.05 |
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12.06 |
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7 |
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10.15 |
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12.18 |
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8 |
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10.31 |
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12.37 |
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9 |
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10.51 |
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12.62 |
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10 |
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10.78 |
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12.93 |
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11 |
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11.04 |
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13.25 |
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12 |
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11.32 |
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13.59 |
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13 |
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11.60 |
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13.92 |
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14 |
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11.89 |
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14.27 |
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15 |
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12.19 |
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14.63 |
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16 |
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12.50 |
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15.00 |
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17 |
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12.81 |
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15.37 |
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18 |
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13.13 |
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15.75 |
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19 |
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13.46 |
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16.15 |
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20 |
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13.79 |
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16.55 |
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21 |
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14.14 |
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16.97 |
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22 |
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14.49 |
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17.39 |
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23 |
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14.85 |
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17.82 |
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24 |
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15.23 |
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18.27 |
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25 |
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15.61 |
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18.73 |
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26 |
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16.00 |
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19.20 |
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27 |
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16.40 |
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19.68 |
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28 |
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16.81 |
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20.17 |
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29 |
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17.83 |
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20.67 |
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EXHIBIT A
THE PROJECT DOCUMENTS (Recitals)
(1) Agreement of Lease, dated as of December 12, 2001, by and between 42 nd St. Development Project, Inc. (42DP) and The New York Times Building LLC (Developer).
(2) Site 8 South Land Acquisition and Development Agreement, dated as of December 12, 2001, by and among New York State Urban Development Corporation d/b/a Empire State Development Corporation (ESDC), 42DP and Developer.
(3) [Intentionally Omitted]
(4) Site 8 South Declaration of Design, Use and Operation, dated as of December 12, 2001, by and among ESDC, 42DP and Developer.
(5) [Intentionally Omitted]
(6) [Intentionally Omitted]
(7) Site 8 South Project Agreement, dated as of the December 12, 2001, by and among ESDC, 42DP, The City of New York, Developer, NYT Real Estate Company LLC and FC Lion LLC.
(8) Agreement of Sublease (NYT), dated as of the date hereof, by and among 42nd St. Development Project, Inc. and NYT Real Estate Company LLC.
(9) Agreement, dated as of December 12, 2001, by and among the Metropolitan Transit Authority and Developer.
(10) Vault Sublicense, dated as of December 12, 2001, by and among the 42DP and Developer.
(11) Condominium Board of Managers Assumption Agreement, dated as of August 15, 2006
A-1
EXHIBIT B
APPROVED CERTIFIED PUBLIC ACCOUNTING FIRMS (§ 1.1(a)(xxxi))
1. Ernst & Young
2. Pricewaterhouse Coopers
B-1
EXHIBIT C
FORM OF COLLATERAL ASSIGNMENT (§ 1.1(a)(xxxv))
THIS AGREEMENT, made this day of , , by and among ( Third Party ), a [insert State] [insert type of entity] having an office at , [Tenant] ( Assignor ), a having an office at [ ], and 42ND ST. DEVELOPMENT PROJECT, INC. ( Assignee ), a subsidiary of New York State Urban Development Corporation ( UDC ) d/b/a Empire State Development Corporation, a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation having an office at 633 Third Avenue, 33 rd floor, New York, New York 10017.
W I T N E S S E T H
WHEREAS, UDC and The City of New York (the City ) have developed, and are in the process of implementing, a rehabilitation and renewal plan for an area of midtown Manhattan surrounding West 42nd Street between Broadway and Eighth Avenue, commonly known as the 42nd Street Development Project; and
WHEREAS, pursuant to an Agreement of Sublease (the Lease ) (the terms defined therein and not otherwise defined herein being used herein as therein defined), dated as of , 2009, between Assignee, as landlord, and Assignor, as tenant, Assignee leased and demised to Assignor certain premises more particularly described in Exhibit F-2 annexed to the Lease (the Property ) and all right, title and interest of Assignee in and to all improvements thereon, for the development and operation of the Property in accordance with the terms of the Lease; and
WHEREAS, pursuant to the [construction agreement to be assigned] (the Agreement ), dated as of , between Assignor and Third Party, Third Party has agreed to provide [construction management] services in connection with the Property; and
WHEREAS, as collateral security for payment and performance of Assignors obligations under the Lease (the Obligations ), Assignor desires to collaterally assign to Assignee all right, title and interest of Assignor in and to the Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Assignor and Third Party hereby consent to the collateral assignment of the Agreement to Assignee pursuant to and on the terms and conditions of this Agreement.
2. Third Party hereby agrees and confirms that the Agreement and all of its rights and interests thereunder, including, but not limited to, rights to payment or fees, are and, at all times shall be, subject and subordinate to the Lease.
C-1
3. Subject to the provisions of Paragraph 4 hereof, Assignor hereby grants, transfers and assigns to Assignee all of Assignors right, title and interest in and to, and the right to have uninterrupted use and enjoyment of the benefits under, the Agreement and all present and future amendments thereto. The foregoing assignment is subject to any assignment by Assignor of the Agreement to any Recognized Mortgagee and the rights of any Recognized Mortgagee thereunder. Assignor and Third Party covenant and agree to execute such further and additional instruments and assignments as may be requested by Assignee to vest in Assignee all rights and interest of Assignor under the Agreement. The Agreement is assigned hereunder for the purpose of securing the payment and performance by Assignor of its Obligations.
4. This Assignment is made upon the condition that for so long as there shall be no Event of Default on the part of Assignor or reentry upon the Property by Assignee pursuant to the terms of the Lease, Assignor shall have the right to exercise all rights, options and privileges extended to Assignor under the terms of the Agreement. Such right of Assignor shall be automatically revoked upon the occurrence of an Event of Default and thereafter, subject to the rights of any Recognized Mortgagee to which the Agreement has been assigned, the right is hereby expressly given to Assignee to enforce the terms of the Agreement in the same manner and with the same force and effect as if Assignee had originally executed the Agreement as the owner of the Property. After the occurrence of an Event of Default and the failure of the Recognized Mortgagee(s) to cure such Event of Default, Assignee may elect by written notice to Third Party given within sixty (60) days after such failure by the Recognized Mortgagee(s) (i) to terminate the Agreement effective upon such notice or (ii) to assume all of the rights and obligations of Assignor under the Agreement. If Assignee shall assume such rights and obligations, the Agreement shall thereby be deemed amended to reflect the following:
(a) All rights, interests, benefits and other privileges of Assignor under the Agreement shall terminate and Assignee shall succeed to and shall have all the rights, interests, benefits and other privileges of Assignor under the Agreement and Third Party shall perform all of its obligations and agreements under the Agreement for the benefit of Assignee. All references in the Agreement to Assignor shall be read to apply to Assignee.
(b) Other than a monetary default by Assignor under the Agreement, Assignee shall not be responsible or liable for any representation or warranty made by Assignor or any act, omission or default by Assignor which occurred prior to the assumption by Assignee of the Agreement, and each such act, omission or default shall be deemed to have been waived by Third Party and shall not constitute grounds for the termination of the Agreement by Third Party or for any other claim or liability against Assignee.
(c) The obligations, responsibilities and liabilities of Assignee under the Agreement shall be limited to and enforceable only against Assignees interest in the Property and not out of or against any other assets or properties of Assignee.
5. Assignor and Third Party, jointly and separately, hereby warrant and represent to Assignee as follows:
C-2
(a) Each of them has the full and complete right, power and authority to execute, deliver and perform this Assignment and has taken all necessary corporate and partnership action, to authorize the execution, delivery and performance of this Agreement;
(b) Neither of them has made a prior assignment, pledge or hypothecation of any of the rights under the Agreement except to a Recognized Mortgagee;
(c) The Agreement is in full force and effect on the date hereof, has not been amended or modified in any way and the performance of the other party thereto is subject to no defenses, set-offs or counterclaims whatsoever and this Assignment and the Agreement constitute the valid, binding and enforceable obligations of the parties thereto;
(d) There exists no event, condition or occurrence which constitutes, or which with notice and/or the passage of time would constitute, a material breach of or default under any term or condition of the Agreement; and
(e) Neither of them has done, nor shall either of them perform any acts or omissions which might prevent Assignee from exercising its rights under this Agreement, or which might limit Assignee in such exercise.
6. Assignor and Third Party agree faithfully to observe and perform each and every one of the obligations and agreements imposed upon them under the Agreement. From and after the date hereof and without the prior written consent of Assignee, not to be unreasonably withheld or delayed, (a) no term or provision of the Agreement (including any exhibit thereto) may be altered, modified or amended in any material respect, (b) Assignor may not waive any material right under the Agreement, (c) neither Assignor nor Third Party may terminate or cancel the Agreement, and (d) neither Assignor nor Third Party may assign any interest, right or obligation under the Agreement or consent to any assignment by the other party of any such interest, right or obligation (other than an assignment to a Recognized Mortgagee or to or by Assignee ), and any of the foregoing acts, if done without such consent of Assignee, shall be null and void ab initio .
7. Assignee shall not be obligated to perform or discharge, nor shall it by acceptance of this Assignment be deemed in any manner to have assumed any of the duties or obligations under, the Agreement or be under any obligation to perform or discharge any of the obligations thereunder, unless and until Assignee elects to assume, subject to Paragraph 4(b) hereof, all of the rights and obligations of Assignor under the Agreement, nor shall Assignee be liable to any person by reason of any default by any party under the Agreement, including any default by Assignor or any other person arising prior to such assumption by Assignee. Assignor shall perform and discharge all such duties, obligations, and liabilities and hereby agrees to indemnify and hold Assignee harmless from and against any and all liability, loss, cost, damage or expense (including, without limitation, reasonable attorneys fees and expenses) which Assignee may incur under or by reason of this Assignment, or for any action taken by Assignee hereunder, or by reason of or in defense of any and all claims and demands whatsoever which may be asserted against Assignee arising out of the Agreement. In the event Assignee incurs any such liability, loss, cost, damage or expense, the amount thereof together with all reasonable
C-3
attorneys fees and disbursements shall be payable by Assignor to Assignee immediately, without demand.
8. All notices and other communications required or permitted to be given to, or served pursuant to, this Agreement, or otherwise, shall be in writing and shall be deemed to have been duly given and delivered for all purposes (a) when personally delivered to a party or authorized representative of a party, (b) when received, if delivered by a nationally recognized overnight courier service, delivery prepaid, (c) three (3) days after deposited in the United States mail, if delivered by registered or certified United States mail, postage prepaid, return receipt requested, or (d) when received, by telecopy (and confirmed by mail in the manner described above) addressed to the party to be notified at such partys address set forth herein. All notices and other communications under this Agreement shall be given to the parties hereto at the address set forth below, or such other address as may be specified in a notice designated as a notice of change of address.
C-4
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DLA Piper LLP (US) |
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1251 Avenue of the Americas |
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New York, New York 10020 |
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Attention: Martin D. Polevoy, Esq. |
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Fax No. (212) 884-8505 |
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if to Assignee: |
42nd St. Development Project, Inc. |
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633 Third Avenue, 33rd floor |
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New York, New York 10017 |
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Attn: President |
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Fax No. (212) 803-3838 |
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with copies to: |
New York City Economic Development Corporation |
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110 William Street |
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New York, New York 10038 |
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Attention: President |
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Fax No. (212) 312-3913 |
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New York City Law Department |
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100 Church Street |
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New York, New York 10007 |
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Attention: Chief, Economic Development Division |
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Fax No. (212) 227-5648 |
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Shearman & Sterling LLP |
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599 Lexington Avenue |
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New York, New York 10022-6069 |
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Attention: Chris M. Smith, Esq. (3578/13) |
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Fax No. (212) 848-7300 |
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Goulston & Storrs, PC |
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750 Third Avenue |
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22nd Floor |
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New York, NY 10017 |
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Attention: Max Friedman, Esq. |
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Fax No. (212) 878-5524 |
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New York State Urban Development Corporation |
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d/b/a Empire State Development Corporation |
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633 Third Avenue |
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New York, New York 10017 |
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Attention: 42nd St. Development Project, Inc. |
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Fax No. ( ) |
9. The acceptance of this Assignment shall not constitute a waiver of any of the rights and remedies of Assignee under the Lease. Further, nothing contained in this Assignment and no act or action taken or done, or omitted to be taken or done, by Assignee pursuant to the powers and rights granted it hereunder shall be deemed to be a waiver by Assignee of any of its rights and remedies against Assignor in connection with, or in respect of, any of the Obligations. The right of Assignee to collect and enforce collection and performance of the Obligations and to enforce any other security and collateral therefor held by it may, to the extent permitted by law, be exercised by Assignee either prior to, simultaneously with, or subsequent to any action taken by Assignee hereunder.
10. Assignor shall execute and deliver, or cause to be executed and delivered, to Assignee all other instruments, certificates and agreements as Assignee may reasonably require, including, but not limited to, estoppel certificates stating that this Assignment or the Agreement is in full force and effect and that there are no defenses or offsets thereto (or if this Assignment or the Agreement is not in full force and effect or there are any defenses or offsets thereto, specifying in reasonable detail such matters), to effect, confirm or assure the rights and remedies intended to be granted to Assignee under this Assignment.
11. If all or any portion of any provision of this Assignment shall be held to be invalid, illegal or unenforceable in any respect or in any jurisdiction, then such invalidity, illegality or unenforceability shall not affect any other provision hereof and such provision shall be limited and construed in such jurisdiction as if such invalid, illegal or unenforceable provision or portion thereof were not contained herein.
12. This Assignment may not be changed or terminated except by an agreement in writing, signed by the party against whom enforcement of the change is sought. This Assignment shall be governed by and construed in accordance with the law of the State of New York. All terms and words used in this Assignment, regardless of the number or gender in which they are used, shall be deemed to include any other number and any other gender as the context may require.
13. This Assignment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns and to the City of New York as holder of a reversionary estate in the Property.
14. No director, member, officer, employee, agent or other person authorized to act on behalf of any of the parties to this Agreement shall have any personal liability in connection with this Assignment or any failure of any of the parties hereto to perform its
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respective obligations under this Assignment. The liability of Assignor, EDC, ESDC, 42DP and the City under this Assignment shall be limited pursuant to Articles 17 and 18 of the Lease.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Assignment as of the day and year first above written.
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42ND ST. DEVELOPMENT PROJECT, INC. |
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[Name of Third Party] |
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EXHIBIT F-1
DEMISED PREMISES (§ 1.1 (a) (lxi))
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 Registers Office.
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
Description of Demised Premises Units
Unit Designation |
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Tax Lot |
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Percentage Interest In
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21-A |
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1028 |
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1.7711% |
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22-A |
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1029 |
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1.7711% |
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23-A |
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1030 |
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1.7711% |
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24-A |
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1031 |
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1.7711% |
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25-A |
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1032 |
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1.7711% |
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26-A |
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1033 |
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1.7711% |
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27-A |
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1034 |
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1.7711% |
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EXHIBIT F-2
THE LAND (§ 1.1(a)(cxxv))
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.
EXHIBIT G
PERMITTED
ENCUMBRANCES (§ 1.1(a)(clxxxi))
1. Public and governmental utility facilities having a physical manifestation within the area of the Property; all recorded easements, licenses and other agreements, if any, existing as of the date hereof for such public and governmental utility facilities; and reasonable rights of access to such public and governmental utility facilities necessary for the maintenance, operation, repair, replacement or use of the same whether or not embodied in recorded instruments.
2. The right, title and interest of the City to property lying within the lines of any street, avenue or public place, as the same is shown on the present City map.
3. All equipment and other property of the City, including but not limited to police and fire communication lines, necessary for the maintenance of the public health and safety and having a physical manifestation within the area being leased; all recorded easements, licenses and other agreements, if any, existing as of the date hereof for such equipment and other property of the City; and reasonable rights of access to all such equipment and other property of the City necessary for the maintenance, operation, repair, replacement or use of the same whether or not embodied in recorded instruments.
4. All rights, title and interest of The New York City Transit Authority (the T.A.) in and to the following property, if any to the extent located within the property being acquired: (A) routes, tracts, tunnels, switches, siding, extensions, connections, platform, structures or terminals; (b) wires, conduits, pipes, ducts, telephone, signal and other communication or service facilities; (c) column, footings, bracing, foundations and other structural members; and (d) any other devices, equipment and facilities used in connection with the operation or maintenance of the subway system.
5. The general project plan with respect to the development of the 42nd Street Development Project (including the Property), adopted by the directors of UDC in June 1981, and thereafter amended, as approved by the City (as the same may be further amended and approved).
6. Any other matters shown on the acquisition map used in connection with ESDCs condemnation of the Property, and which are specifically excluded on such map from the acquisition in connection therewith (provided, however, that no such matters materially impair the ability to construct a new building on the Property).
7. Site 8 South Project Agreement, dated as of December 12, 2001 by and among ESDC, 42DP, the City, NYTB, NYT Real Estate Company LLC and FC Lion LLC.
8. Site 8 South Land Acquisition and Development Agreement, dated as of December 12, 2001, by and among ESDC, 42DP and NYTB, as amended by First Amendment to Site 8
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South Land Acquisition and Development Agreement, dated as of February 14, 2003 by 42DP, ESDC and NYTB.
9. Site 8 South Declaration of Design, Use and Operation, dated as of December 12, 2001 by and among ESDC, 42DP and NYTB.
10. Agreement, dated as of December 12, 2001, by and among 42DP, The New York City Transit Authority, NYTB and the City.
11. The lien for any BID assessments not yet due and payable (subject to adjustment as provided in this Lease).
12. Sewer Easement recited in Deed recorded in Liber 959 Cp. 298, if existing.
13. Declaration of Covenants and Restrictions made by New York State Urban Development Corporation dated as of June 21, 1988, recorded April 20, 1990 in Reel 1686 Page 383.
14. Reversionary estate of the City.
G-2
EXHIBIT H
FORM OF NOTICE OF UNREIMBURSED ESAC (§ 3.1(b)(ii))
[Tenant letterhead]
as of , 200 [each PILOT payment date]
VIA HAND
42
nd
St. Development Project, Inc.
633 Third Avenue, 33
rd
floor
New York, New York 10017
Attention: President
Site 8 South Unreimbursed ESAC (Allocated)
Ladies and Gentlemen:
Reference is made to that certain Agreement of Lease (as it hereinbefore and hereafter may be amended, the Lease ), dated as of , 2009, by and between 42 nd St. Development Project, Inc. ( Landlord ) and [Tenant] ( Tenant ). Capitalized terms used herein but not defined herein shall have the meanings set forth in the Lease.
Pursuant to Section 3.1(b)(ii) of the Lease and in connection with Tenants current payment of PILOT, Tenant hereby certifies to Landlord that:
(a) Tenant will offset 85% of the PILOT payment due under the Lease as of the date hereof against Tenants outstanding balance of unreimbursed Excess Site Acquisition Costs (Allocated);
(b) Tenants outstanding balance of unreimbursed Excess Site Acquisition Costs (Allocated) as of , the closing date of the last Quarterly ESAC Report (as defined in the Site 8 South LADA), is $ ; and
(c) An amount of unreimbursed Excess Site Acquisition Costs (Allocated)equal to or greater than the offset amount set forth in (a) above remains to be credited.
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Yours Truly, |
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By: |
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Title: |
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cc: |
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President New York City Economic Development Corporation |
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Chief, Economic Development Division New York City Law Department |
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Chris M. Smith, Esq. - Shearman & Sterling LLP |
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Max Friedman, Esq. Goulston & Storrs, PC |
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42 nd St. Development Project, Inc. New York State Urban Development Corporation |
H-2
EXHIBIT I
APPROVED MAJOR CONTRACTORS (§ 9.6 (b)(ii))
Mayrich Construction Corp.
Urban Foundation/Engineering LLC
Canron Construction Corp.
SMI Owen Steel Co.
Kline Iron & Steel
Sorbara Construction Corp.
Northside Corp.
Pinnacle Concrete
E. Patti & Sons
C&D Fireproofing & Plastering
Permasteelisa Cladding Technologies
GlassAlum International Corp.
Harmon Ltd.
Benson Industries, Inc.
Wolkow Braker Roofing Corp.
JP Patti Company, Inc.
Eagle One Roofing
NY Roofing Co.
Nastasi & Associates
Woodword Construction
Component Assembly Systems
ASM Electric & Machine Corp.
Fresh Meadows Mech. Corp.
Centrifugal Mechanical
FW Sims
Fred Geller Electrical, Inc.
Zwicker Electric
EJ Electric
Sirina Fire Protection
Belrose Fire Suppression
Rael Automatic Sprinkler Co., Inc.
Almar Plumbing & Heating Corp.
Olympic Plumbing & Heating
Schindler Elevator Corp.
Otis Elevator Co.
ThyssekKrupp Elevator
Fujitech
EXHIBIT J
FORM OF NON ADVERSE STRUCTURAL EFFECT STATEMENT OF ENGINEER
OR ARCHITECT (§ 9.9)
[Engineers/Architects letterhead]
as of , 200
VIA HAND
42
nd
St. Development Project, Inc.
633 Third Avenue, 33
rd
floor
New York, New York 10017
Attention: President
Site 8 South Alterations
Ladies and Gentlemen:
Reference is made to that certain Agreement of Lease (as it hereinbefore may have been and hereafter may be amended, the Lease ), dated as of , 2009, by and between 42 nd St. Development Project, Inc. ( Landlord ) and [Tenant] ( Tenant ). Capitalized terms used herein but not defined herein shall have the meanings set forth in the Lease.
Pursuant to Section 9.9 of the Lease, the undersigned hereby certifies that: (a) it has reviewed Section 9.9 of the Lease and is familiar therewith; (b) it has assessed the Alterations listed on Schedule A attached hereto; and (c) based solely on such assessment, and without regard to any representations or other statements made by Tenant or any other party, such Alterations shall have no adverse effect on a Structural Component that is greater than a Nonadverse Structural Effect.
Yours Truly,
[Signature block of Engineer/Architect]
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President New York City Economic Development Corporation |
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Chief, Economic Development Division New York City Law Department |
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Chris M. Smith, Esq. - Shearman & Sterling LLP |
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Max Friedman, Esq. Goulston & Storrs, PC |
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42 nd Street Development Project, Inc. New York State Urban Development Corporation |
Schedule A to Exhibit J
Alterations
[Insert description of Alterations]
EXHIBIT K
FORM OF NONDISTURBANCE AGREEMENT (§ 13.2(b))
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT (this Agreement ), dated as of , 200 , between 42ND ST. DEVELOPMENT PROJECT, INC., a New York corporation, having an office at 633 Third Avenue, 33rd Floor, New York, New York 10017 (the Ground Lessor ), and , a , having an office at (the Landlord ), and , a having an office at (the Tenant ).
W I T N E S S E T H :
WHEREAS, Tenant has entered into a lease dated , 20 between Landlord, as sublandlord, and Tenant, as subtenant, with respect to certain space (the Demised Premises ) in the building located at , New York, New York (the Premises ) (said sublease, as heretofore or hereafter amended and supplemented, the Lease );
WHEREAS, Ground Lessor is the ground lessor of the Premises pursuant to that certain Agreement of Lease dated as of , 2001, between Ground Lessor and (the Ground Lease ); and
WHEREAS, Ground Lessor, Landlord and Tenant desire to enter into this Agreement upon the terms, covenants and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and the agreements of the parties contained herein, the parties hereto hereby covenant and agree as follows:
1. Except as expressly stated herein, nothing in this Agreement shall be construed to be an approval by Ground Lessor of the provisions of the Lease.
2. Tenant agrees that the Lease is and shall be subject and subordinate to the Ground Lease and all renewals, amendments, modifications, consolidations, replacements and extensions thereof.
3. Ground Lessor hereby agrees that so long as the Lease shall be in full force and effect, Tenant shall not be in default in the payment of rent or additional rent due under the Lease and Tenant shall not be in default in the performance or observance of any of the other obligations or conditions of the Lease beyond any applicable cure period (the Nondisturb Conditions ): (a) Ground Lessor shall not join Tenant as a party defendant in any action or proceeding which may be instituted or taken by Ground Lessor under the Ground Lease, by reason of any default by Landlord thereunder, to terminate the Ground Lease, to remove or evict the Landlord or to recover possession of the Premises, unless required by law in order to make such action or proceeding effective; (b) Tenant shall not be evicted from the Demised Premises; and (c) Tenants subleasehold estate under the Lease shall not be diminished, interfered with, disturbed or terminated.
4. Tenant hereby agrees that in the event of any act or omission by Landlord which would give Tenant the right, either immediately or after the lapse of a period of time, to terminate the Lease, or to claim a partial or total eviction, Tenant shall not exercise any such right: (a) until it has given written notice of such act or omission to Ground Lessor; and (b) until a reasonable period for remedying such act or omission shall have elapsed following such giving of notice. Tenant from and after the date hereof shall send a copy of any notice of default or notice in connection with the commencement of any action to terminate the Lease or similar statement under the Lease to Ground Lessor at the same time such notice or statement is sent to Landlord under the Lease and agrees that, notwithstanding any provisions of the Lease to the contrary, such notice shall not be effective unless Ground Lessor shall have been given such notice and shall have failed to cure such default as herein provided. All notices given under this Agreement shall be sent by certified or registered mail, postage prepaid, return receipt requested, or shall be delivered to the parties at the following addresses set forth above (or at such other addresses as the parties hereto shall specify in a written notice to the other parties at the addresses specified herein). Any notices hereunder shall be deemed to be given on the earlier to occur of: (i) the day of receipt; and (ii) three (3) days after deposit in the mail.
5. Tenant and Ground Lessor hereby agree that, in the event that Ground Lessor shall enter into and become possessed of the Premises by reason of default on the part of Landlord under the Ground Lease or by reason of the termination of the Ground Lease, then, so long as the Nondisturb Conditions shall be satisfied, the Lease shall continue as a direct lease between Ground Lessor and Tenant upon all of the terms, covenants, conditions and agreements as set forth in the Lease, and Tenant agrees to be bound thereby and to attorn to Ground Lessor and recognize Ground Lessor as its landlord; provided , however , that Ground Lessor shall not:
(a) be liable for any act or omission or negligence of any prior landlord under the Lease;
(b) be subject to any counterclaim, offset or defense, which theretofore accrued to the Tenant against the prior landlord under the Lease;
(c) be subject to any counterclaim, offset or defense at any time during the term of the Lease with respect to the payment of rent or additional rent by Tenant;
(d) be bound by any modification or amendment of such Lease (unless Ground Lessor shall have theretofore received a copy of and consented in writing to such modification or amendment);
(e) be bound by any payment of rent or additional rent for more than one (1) month in advance (unless actually received by Ground Lessor);
(f) be liable for any security deposit given by Tenant under the Lease, unless and to the extent actually received by Ground Lessor;
(g) be obligated to perform any work of any kind in the Demised Premises or the Premises;
K-2
(h) in the event of a casualty, be obligated to repair or restore the Premises or any portion thereof beyond such repair or restoration as may be reasonably accomplished from the net insurance proceeds actually made available to Ground Lessor;
(i) in the event of a partial condemnation, be obligated to repair or restore the Premises or any part thereof beyond such repair or restoration as may be reasonably accomplished from the net proceeds of any award actually made available to Ground Lessor;
(j) be subject to any right of cancellation or termination which requires payment by the landlord thereunder of a charge, fee or penalty for such cancellation or termination, except if Ground Lessor voluntarily exercises such right of cancellation or termination other than as a result of a casualty or condemnation;
(k) be subject to any right of first refusal or first offer to purchase the Premises or any portion thereof;
(l) be obligated to give Tenant all or any portion of any insurance proceeds or condemnation awards received by Ground Lessor as a result of a casualty or condemnation;
(m) be subject to liability for any amounts in excess of the amounts set forth in Article 17 of the Ground Lease; or
(n) be bound for a term in excess of ten (10) years from the commencement date of the Lease.
Upon the request of either Tenant or Ground Lessor, Tenant or Ground Lessor, as the case may be, shall promptly execute and deliver to the other an agreement or other instrument in recordable form which may be necessary or appropriate to evidence such attornment.
6. Landlord and Tenant shall not change, or consent to a change in, the terms, covenants, conditions and agreements of the Lease in any manner which would be binding on Ground Lessor without the express consent in writing of Ground Lessor.
7. Tenant further acknowledges that pursuant to Section 13.4 of the Ground Lease, the Ground Lessor may elect to collect rent and all other sums due under the Lease under certain circumstances. In the event that the Ground Lessor elects to collect rent or other charges under Section 13.4 of the Ground Lease, then from and after such election, until further notice from Ground Lessor, Tenant shall pay its rent, additional rent and all other sums due under the Lease directly to Ground Lessor.
8. This Agreement may not be modified, amended or terminated unless in writing and duly executed by the party against whom the same is sought to be asserted and constitutes the entire agreement between the parties with respect to the subject matter hereof.
9. This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and assigns.
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10. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York applicable to agreements made and to be performed entirely within said state.
[SIGNATURES ON NEXT PAGE]
K-4
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.
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42ND ST. DEVELOPMENT PROJECT, INC. |
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Title: President |
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EXHIBIT M
FORM OF NOTICE OF DEFAULT (§ 14.2)
42
ND
ST. DEVELOPMENT PROJECT, INC.
633 Third Avenue, 33
rd
Floor
New York, New York 10017
as of , 200
VIA HAND
NYT Real Estate Company LLC
c/o The New York Times Company
620 Eighth Avenue
New York, New York 10018
Attention: General Counsel
Site 8 South NOTICE OF DEFAULT
Ladies and Gentlemen:
Reference is made to that certain Agreement of Lease (as it hereinbefore may have been and hereafter may be amended, the Lease ), dated as of , 2009, by and between 42 nd St. Development Project, Inc. ( Landlord ) and [Tenant] ( Tenant ). Capitalized terms used herein but not defined herein shall have the meanings set forth in the Lease.
Pursuant to Section 14.2 of the Lease, Tenant is hereby given notice that it is in default under Section of the Lease for [STATE DEFAULT]. Under the Lease, Tenant has [STATE PERIOD] in which to cure this Default.
Nothing in this letter shall be construed to be a waiver of any right or remedy available to Landlord under the Lease, at law or in equity, all of which are hereby expressly reserved.
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Yours Truly, |
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42 ND ST. DEVELOPMENT PROJECT, INC. |
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Director of Real Estate The New York Times Company |
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Martin D. Polevoy, Esq. DLA Piper LLP (US) |
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Max Friedman, Esq. Goulston & Storrs, PC |
M-1
EXHIBIT N
FORM OF SECOND NOTICE OF DEFAULT (§ 14.2)
42
ND
ST. DEVELOPMENT PROJECT, INC.
633 Third Avenue, 33
rd
Floor
New York, New York 10017
as of , 200
VIA HAND
NYT Real Estate Company LLC
c/o The New York Times Company
620 Eighth Avenue
New York, New York 10018
Attention: General Counsel
Site 8 South SECOND NOTICE OF DEFAULT
Ladies and Gentlemen:
Reference is made to that certain Agreement of Lease (as it hereinbefore may have been and hereafter may be amended, the Lease ), dated as of , 2009, by and between 42 nd St. Development Project, Inc. ( Landlord ) and [Tenant] ( Tenant ). Capitalized terms used herein but not defined herein shall have the meanings set forth in the Lease.
Pursuant to Section 14.2 of the Lease, Tenant is hereby given notice that Tenants Default under Section of the Lease for [STATE DEFAULT] has not been cured within the cure period for such Default under the Lease. If Tenant has not cured the aforesaid Default within 5 Business Days of [DATE OF THIS NOTICE IF SENT ON BUSINESS DAY OR DATE OF NEXT SUCCEEDING BUSINESS DAY IF DATE OF THIS NOTICE IS NOT A BUSINESS DAY], an Event of Default shall be deemed to have occurred.
Nothing in this letter shall be construed to be a waiver of any right or remedy available to Landlord under the Lease, at law or in equity, all of which are hereby expressly reserved.
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Yours Truly, |
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42 ND ST. DEVELOPMENT PROJECT, INC. |
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Director of Real Estate The New York Times Company |
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Martin D. Polevoy, Esq. DLA Piper LLP (US) |
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Max Friedman, Esq. Goulston & Storrs, PC |
N-1
EXHIBIT R
FORM OF MEMORANDUM OF LEASE (§ 33.1)
MEMORANDUM OF AGREEMENT OF SUBLEASE
By and Between
42nd ST. DEVELOPMENT PROJECT, INC.,
as Landlord
and
NYT REAL ESTATE COMPANY LLC,
as Tenant
Premises:
Block: 1012
Lots: 1028, 1029, 1030, 1031, 1032, 1033, 1034
Address:
620 Eighth Avenue
Borough of Manhattan
County, City and State of New York
RECORD AND RETURN TO:
DLA Piper LLP (US)
1251 Avenue of the Americas
New York, New York 10020
Attention: Marc Hurel, Esq.
MEMORANDUM OF AGREEMENT OF SUBLEASE
MEMORANDUM OF AGREEMENT OF SUBLEASE (this Memorandum ), is made as of the 6th day of March, 2009, by and between 42ND ST. DEVELOPMENT PROJECT, INC. ( 42DP ), a subsidiary of New York State Urban Development Corporation ( UDC ) d/b/a Empire State Development Corporation ( ESDC ), a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, having an office at 633 Third Avenue, 33rd floor, New York, New York 10017, as landlord (in such capacity, Landlord ), and NYT REAL ESTATE COMPANY LLC, a New York limited liability company, having an office at c/o The New York Times Company, 620 Eighth Avenue, New York, New York 10018, as tenant (in such capacity T enant ).
W I T N E S S E T H :
WHEREAS , Landlord and The New York Times Building LLC entered into that certain Agreement of Lease dated as of December 12, 2001, as amended by letter dated April 8, 2004 (the Initial Ground Lease ) with respect to certain land more particularly therein and all improvements then or thereafter located thereon;
WHEREAS , NYTB, as landlord, entered into that certain Agreement of Sublease dated as of December 12, 2001 with Tenant, as tenant (the Initial NYTC Sublease ),;
WHEREAS , NYTB submitted the Initial Ground Lease to a leasehold condominium structure pursuant to Article 9-B of the Real Property Law of the State of New York;
WHEREAS , pursuant to that certain Assignment and Assumption Agreement dated as of August 15, 2006 (being the Lease Assignment Date under the Initial Ground Lease) between NYTB and Landlord (the Assignment ), NYTB assigned to Landlord all of NYTBs right, title and interest in and to the Initial Ground Lease and the Initial NYTC Sublease;
WHEREAS , pursuant to the provisions of the Initial Ground Lease and the Assignment, the Assignment did not cause a merger of the interests of landlord and tenant under the Initial Ground Lease, which interests are and remain separate and distinct;
WHEREAS, the Initial Ground Lease was amended and restated pursuant to Amended and Restated Agreement of Lease dated as of August 15, 2006 and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644736, which Amended and Restated Agreement of Lease was amended by First Amendment to Amended and Restated Agreement of Lease dated as of January 29, 2007 and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100154;
WHEREAS , the Initial NYTC Sublease was amended pursuant to First Amendment to Agreement of Sublease (NYT) dated as of 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 as of 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 (the Initial NYTC Sublease, as so amended, and as further amended by the Third Amendment, hereinafter defined, the Existing NYTC Sublease );
WHEREAS, by Third Amendment to Agreement of Sublease (NYT) dated of even date herewith and intended to be recorded in the Office of the City Register of the City of New York (the Third Amendment ), Landlord and Tenant further modified the Existing NYTC Sublease, inter alia , to remove from the premises demised thereunder a portion of the NYTC Collective Unit (as defined in the Condominium Declaration) consisting of Units 21-A, 22-A, 23-A, 24-A, 25-A, 26-A and 27-A, together their undivided percentage interest in the Common Elements and the NYTC Limited Common Elements, as more particularly described on Exhibit A annexed hereto (the Demised Premises ), upon the condition that Landlord and Tenant enter into a new sublease covering the Demised Premises on substantially the same terms and conditions of the Existing NYTC Sublease;
WHEREAS, in satisfaction of such condition, Tenant and Landlord have entered into that certain Agreement of Sublease (NYT-2) dated of even date herewith covering the Demised Premises (the Severance Lease ); and
WHEREAS , in accordance with Sections 291-c and 294(7) of the New York State Real Property Law and Section 33.1 of the Severance Lease, the parties desire to record a memorandum summarizing certain (but not all) of the provisions, covenants and conditions set forth in the Severance Lease.
NOW, THEREFORE, Landlord and Tenant declare as follows:
1. The name and address of Landlord is:
42ND ST. DEVELOPMENT PROJECT, INC.
633 Third Avenue, 33rd floor
New York, New York 10017
2. The name and address of the Tenant is:
NYT REAL ESTATE COMPANY LLC
c/o The New York Times Company
620 Eighth Avenue
New York, New York 10018
3. The premises under the Severance Lease are the Demised Premises.
4. The term of the Severance Lease commenced on March 6, 2009 (the Commencement Date ) and ends on December 11, 2100 (unless sooner terminated in accordance with the terms, covenants or conditions of the Severance Lease or pursuant to law) (the Expiration Date ).
5. Pursuant to and in accordance with the Severance Lease, after the Scheduled PILOT Conversion Date (as defined in the Severance Lease) or as otherwise expressly permitted under the Severance Lease, Tenant, simultaneously with the tenants under all other Severance Subleases (as defined in the Severance Lease), shall have the right, which right shall be exercised by notice to Landlord (the Purchase Option Notice ), to purchase (or have a designee purchase) all of the interest of 42DP (if any) and the City in the portion of the Land and the Improvements comprising the Demised Premises, and the undivided interest in the Common Elements associated therewith (the Purchase Option ) on a date identified in the Purchase Option Notice and being no less than ninety (90) days after the date of the Purchase Option Notice (such date, the Purchase Option Closing Date ) and on the terms and conditions set forth in Article V of the Severance Lease. The Purchase Option Notice may be delivered prior to the Scheduled PILOT Conversion Date so long as the Purchase Option Closing Date set forth therein occurs on or subsequent to the Scheduled PILOT Conversion Date.
6. This Memorandum is subject to all of the terms, conditions and provisions of the Severance Lease and shall not be construed to vary or otherwise affect such terms, conditions and provisions or the rights and obligations of the parties thereto. In the event of any conflict between the terms, conditions and provisions of the Severance Lease and this Memorandum, the terms, conditions and provisions of the Severance Lease shall control.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Memorandum on the date hereinabove first set forth.
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ACKNOWLEDGMENTS
STATE OF NEW YORK |
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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 of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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STATE OF NEW YORK |
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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 of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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EXHIBIT A
DEMISED PREMISES
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 Registers 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.
Exhibit 10.6
FIRST AMENDMENT TO AGREEMENT OF SUBLEASE (NYT-2)
By and Between
42ND ST. DEVELOPMENT PROJECT, INC. ,
as Landlord
and
NYT BUILDING LEASING COMPANY LLC,
as Tenant
Premises :
Block: 1012
Lots: 1028-1034 (formerly part of Lot 1)
Address
620-628 8 th Avenue
263-267 and 241-261 West 40 th Street
242-244 West 41 st Street
231-235 West 40 th Street
248-256, 260-262 and 268 West 41 st Street
634 and 630-632 8 th Avenue
Borough of Manhattan
County, City and State of New York
RECORD AND RETURN TO :
DLA Piper LLP (US)
1251 Avenue of the Americas
New York, New
York 10020
Attention: Marc Hurel, Esq.
FIRST AMENDMENT TO AGREEMENT OF SUBLEASE (NYT-2)
THIS FIRST AMENDMENT TO AGREEMENT OF SUBLEASE (NYT) (this Amendment ) is made as of the day of March, 2009, by and between 42ND ST. DEVELOPMENT PROJECT, INC. ( 42DP ), a subsidiary of New York State Urban Development Corporation ( UDC ) d/b/a Empire State Development Corporation ( ESDC ), a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, having an office at 633 Third Avenue, 33 rd floor, New York, New York 10017, as landlord (in such capacity, Landlord ), and NYT BUILDING LEASING COMPANY LLC, a New York limited liability company having an office at c/o The New York Times Company, 620 Eighth Avenue, New York, New York 10018, as tenant (in such capacity, Tenant ).
W I T N E S S E T H :
WHEREAS , Landlord and The New York Times Building LLC ( NYTB ) entered into that certain Agreement of Lease dated as of December 12, 2001, as amended by letter dated April 8, 2004 (the Initial Ground Lease ), with respect to certain land and improvements more particularly described in the Initial Ground Lease, a memorandum of which was recorded October 24, 2003 in the Office of the City Register of the City of New York (the Office of the City Register ) as CRFN 2003000433122;
WHEREAS , NYTB, as landlord, entered into
(a) that certain Agreement of Sublease (NYT) dated as of December 12, 2001 with NYT Real Estate Company LLC ( NYTRE ), as tenant, a memorandum of which was recorded October 24, 2003 as CRFN 2003000433125 in the Office of the City Register (the Initial NYTC Sublease ), which Initial NYTC Sublease was amended by First Amendment to Agreement of Sublease (NYT) dated as of August 15, 2006 between Landlord and NYTRE 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 Landlord and NYTRE 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) (the Third NYTC Amendment ) dated as of March 6, 2009 between Landlord and NYTRE and recorded in the Office of the City Register of the City of New York on March , 2009 as CRFN , the tenants interest in which Initial NYTC Sublease as so amended was assigned to and assumed by 620 Eighth NYT (NY) Limited Partnership, a Delaware limited partnership ( 620 Eighth ) pursuant to that certain Assignment and Assumption of Sublease dated as of March 6, 2009 between NYTRE, as assignor, and 620 Eighth, as assignee, and recorded in the Office of the City Register of the City of New York on March , 2009 as CRFN , and as further amended by that certain Fourth Amendment to Agreement of Sublease (NYT) between Landlord and 620 Eighth dated of even date herewith and intended to be recorded in the Office of the City Register of the City of New York (the Initial NYTC Sublease, as so amended and assigned, the NYTC Sublease );
(b) that certain Agreement of Sublease (Office) dated as of December 12, 2001 with FC Lion LLC ( FC Lion ), as tenant, a memorandum of which was recorded October 24, 2003 as CRFN 2003000433123 in the Office of the City Register (the Initial FC Office Sublease ), the tenants interest in which Initial FC Office Sublease was assigned to and assumed by FC Eighth Ave., LLC, a Delaware limited liability company ( FC Eighth ) pursuant to that certain Assignment and Assumption of Sublease Agreement dated as of August 15, 2006 between FC Lion, as assignor, and FC Eighth, as assignee, and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644730, and which Initial FC Office Sublease was amended by First Amendment to Agreement of Sublease (Office) dated as of August 15, 2006 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644733, by Second Amendment to Agreement of Sublease (Office) dated as of January 29, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100155, by Third Amendment to Agreement of Sublease (Office) dated as of October 11, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on January 8, 2008 as CRFN 2008000008732, and by Fourth Amendment to Agreement of Sublease (Office) dated as of March 6, 2009 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on March , 2008 as CRFN , and by Fifth Amendment to Agreement of Sublease (Office) even date herewith and intended to be recorded in the Office of the City Register of the City of New York (the Initial FC Office Sublease, as so assigned and amended, the FC Office Sublease ); and
(c) that certain Agreement of Sublease (Retail) dated as of December 12, 2001 with FC Lion, as tenant, a memorandum of which was recorded October 24, 2003 as CRFN 2003000433124 in the Office of the City Register (the Initial FC Retail Sublease ), the tenants interest in which Initial FC Retail Sublease was assigned to and assumed by FC Eighth pursuant to that certain Assignment and Assumption of Sublease Agreement dated as of August 15, 2006 between FC Lion, as assignor, and FC Eighth, as assignee, and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644731, and which Initial FC Retail Sublease was amended by First Amendment to Agreement of Sublease (Retail) dated as of August 15, 2006 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644734, by Second Amendment to Agreement of Sublease (Retail) dated as of January 29, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100156, by Third Amendment to Agreement of Sublease (Retail) dated as of October 11, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on January 8, 2008 as CRFN 2008000008733, and by Fourth Amendment to Agreement of Sublease (Retail) dated as of March 6, 2009 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on March , 2008 as CRFN , and by Fifth Amendment to Agreement of Sublease (Retail) even date herewith and intended to be recorded in the Office of the City Register of the City of New York (the Initial FC Retail Sublease, as so assigned and amended, the FC Retail Sublease );
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WHEREAS , NYTB submitted the Initial Ground Lease to a leasehold condominium structure pursuant to Article 9-B of the Real Property Law of the State of New York;
WHEREAS , pursuant to that certain Assignment and Assumption Agreement dated as of August 15, 2006 (being the Lease Assignment Date under the Initial Ground Lease) between NYTB and Landlord (the Assignment ), NYTB assigned to Landlord all of NYTBs right, title and interest in and to the Initial Ground Lease and the NYTC Sublease, the FC Office Sublease and the FC Retail Sublease;
WHEREAS , pursuant to the provisions of the Initial Ground Lease and the Assignment, the Assignment did not cause a merger of the interests of landlord and tenant under the Initial Ground Lease, which interests are and remain separate and distinct;
WHEREAS , the Initial Ground Lease was amended and restated pursuant to Amended and Restated Agreement of Lease dated as of August 15, 2006 and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644736, which Amended and Restated Agreement of Lease was amended by First Amendment to Amended and Restated Agreement of Lease dated as of January 29, 2007 and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100154;
WHEREAS, pursuant to the Third NYTC Amendment, Landlord and NYTRE modified the Initial NYTC Sublease, inter alia, to remove from the premises demised thereunder a portion of the NYTC Collective Unit (as defined in the Condominium Declaration) consisting of Units 21-A, 22-A, 23-A, 24-A, 25-A, 26-A and 27-A, together their undivided percentage interest in the Common Elements and the NYTC Limited Common Elements (the New NYTC Sublease Premises );
WHEREAS, Landlord and NYTRE entered into that certain Agreement of Sublease (NYT-2) dated as of March 6, 2009 with respect to the New NYTC Sublease Premises, a memorandum of which Agreement of Sublease (NYT-2) was recorded March , 2009 as CRFN in the Office of the City Register, the tenants interest in which Agreement of Sublease (NYT-2) was assigned to and assumed by Tenant, pursuant to that certain Assignment and Assumption of Sublease dated as of March 6, 2009 between NYTRE, as assignor, and, NYTBLC, as assignee, and recorded in the Office of the City Register of the City of New York on March , 2009 as CRFN (said Agreement of Sublease (NYT-2), as so assigned and as amended hereby, the NYTC-2 Sublease );
WHEREAS , simultaneously herewith the Unit Owners (as defined in the Condominium Declaration) are executing a Fourth Amendment to Declaration of Leasehold Condominium to reflect (i) some minor adjustments, corrections and modifications with respect to the percentage interest in the Common Elements allocated to the Units; and (ii) the combination of Units 1-E (tax lot 1007) and 1-A (tax lot 1003) into one unit to be known as Unit 1-A (tax lot 1003); and
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WHEREAS, Landlord and Tenant desire to amend the NYTC-2 Sublease for the purposes hereinafter set forth.
NOW, THEREFORE , in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions . All capitalized terms used herein without definition shall have the meanings ascribed to them in the NYTC Sublease.
2. Legal Description . Exhibit A to the Third Amendment is hereby deleted and replaced in its entirety by the document attached hereto as Exhibit A . All references to Exhibit A in the First Amendment, Second Amendment and Third Amendment shall be deemed to refer to the document attached hereto as Exhibit A .
3. Recording . Landlord and Tenant agree that Tenant shall cause this Amendment to be recorded and that Tenant shall pay any transfer or similar taxes that may be payable as a result of this Amendment.
4. No Other Amendments . As modified by this Amendment, the NYTC-2 Sublease remains in full force and effect.
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IN WITNESS WHEREOF , Landlord and Tenant have executed this Amendment as of the day and year first written above.
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LANDLORD : |
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42ND ST. DEVELOPMENT PROJECT, INC., as Landlord |
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/s/ Naresh Kapadia |
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Name: Naresh Kapadia |
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Title: Assistant VP, Planning and Design |
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TENANT : |
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NYT BUILDING LEASING COMPANY LLC |
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/s/ Kenneth A. Richieri |
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Name: Kenneth A. Richieri |
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Title: Manager |
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ACKNOWLEDGMENTS
STATE OF NEW YORK |
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On the day of 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 of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that _he executed the same in h_ capacity, and that by h__ signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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STATE OF NEW YORK |
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On the day of 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 of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that _he executed the same in h_ capacity, and that by h__ signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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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 recorded as CRFN , and Fourth Amendment to Declaration dated March 6, 2009 to be recorded with the Register (which Declaration, and any further amendments thereto, are hereinafter collectively called the Declaration ), establishing a plan for leasehold condominium ownership of said Building and the land upon which the same is erected (hereinafter sometimes collectively called the Property ) and also designated and described as Tax Lots No. (SEE SCHEDULE ANNEXED), Block 1012 Section 4, Borough of MANHATTAN on the Tax Map of the Real Property Assessment Department of the City of New York and on the floor plans of said Building certified by 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 Registers 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.
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Exhibit 99.1
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Press Release
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For The New York Times
Company
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For W. P. Carey & Co. LLC
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This press release can be downloaded from www.nytco.com and www.wpcarey.com |
THE NEW YORK TIMES COMPANY AND W. P. CAREY ANNOUNCE
CLOSING OF SALE-LEASEBACK TRANSACTION FOR A PORTION OF
THE NEW YORK TIMES BUILDING
NEW YORK, March 9, 2009 The New York Times Company and investment firm W. P. Carey & Co. LLC announced today that they had entered into a sale-leaseback transaction for $225 million for part of the space that the Times Company owns in its New York headquarters. The purchase was made by W. P. Carey and two of its publicly-held, non-traded REIT affiliates, CPA ® :16 Global and CPA ® :17 Global.
The transaction encompasses 21 floors, or approximately 750,000 rentable square feet, currently occupied by the Times Company. The 52-story building, designed by Italian architect Renzo Piano and completed in 2007, is located on Eighth Avenue, between 40 th and 41 st Streets.
W. P. Carey was able to clearly understand our Company, our facility and our objectives, said Janet L. Robinson, president and CEO, the Times Company. Its history and outstanding reputation in the sale-leaseback industry gave us the confidence that it would be the right firm with which to do this transaction.
W. P. Carey continues to provide as it has for more than 35 years sale-leaseback financing to companies in all stages of the credit cycle, noted Gordon F. DuGan, president and CEO, W. P. Carey. We are proud to work with such a world-class media company and to purchase such a world-class asset. Todays economic environment presents incredible challenges and opportunities,
and we look forward to diligently adhering to the defensive, risk management-driven investment strategy that has provided historically solid performance.
The lease term is 15 years and t here is an option for the Times Company to repurchase the condominium interest for $250 million during the 10th year of the lease term. The rental payment will be $24 million for the first year and will escalate through the term of the lease. The Times Company plans to use the proceeds to retire long-term debt.
The Times Company was advised by Andrew Sachs and Michael Rotchford of Cushman & Wakefield.
The New York Times Company (NYSE: NYT), a leading media company with 2008 revenues of $2.9 billion, includes The New York Times, the International Herald Tribune, The Boston Globe, 16 other daily newspapers, WQXR-FM and more than 50 Web sites, including NYTimes.com, Boston.com and About.com. The Companys core purpose is to enhance society by creating, collecting and distributing high-quality news, information and entertainment.
Except for the historical information contained herein, the matters discussed in this press release are forward-looking statements that involve risks and uncertainties that could cause actual results to differ materially from those predicted by such forward-looking statements. These risks and uncertainties include national and local conditions, as well as competition, that could influence the levels (rate and volume) of retail, national and classified advertising and circulation generated by our various markets and material increases in newsprint prices. They also include other risks detailed from time to time in the Times Companys publicly filed documents, including the Companys Annual Report on Form 10-K for the year ended December 28, 2008. The Company undertakes no obligation to publicly update any forward-looking statement, whether as a result of new information, future events or otherwise.
W. P. Carey & Co. LLC (NYSE: WPC) is an investment management company that provides long-term sale-leaseback and build-to-suit financing for companies worldwide and manages a global investment portfolio worth approximately $10 billion. Publicly traded on the New York Stock Exchange (WPC), W. P. Carey and its CPA ® series of income-generating, non-traded REITs help companies and private equity firms unlock capital tied up in real estate assets. The W. P. Carey Groups investments are highly diversified, comprising contractual agreements with approximately 300 long-term corporate obligors spanning 28 industries and 14 countries. http://www.wpcarey.com
This press release contains forward-looking statements within the meaning of the Federal securities laws. A number of factors could cause W. P. Careys actual results, performance or achievement to differ materially from those anticipated. Among those risks, trends and uncertainties are the general economic climate; the supply of and demand for office and industrial properties; interest rate levels; the availability of financing; and other risks associated with the acquisition and ownership of
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properties, including risks that the tenants will not pay rent, or that costs may be greater than anticipated. For further information on factors that could impact the Company, reference is made to the Companys filings with the Securities and Exchange Commission.
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This press release can be downloaded from www.nytco.com |
THE NEW YORK TIMES COMPANY ANNOUNCES
REDEMPTION OF ITS 4.5% NOTES DUE 2010
NEW YORK, March 9, 2009 The New York Times Company announced today that it has called for redemption of all $250 million outstanding aggregate principal amount of its 4.5% notes due 2010. The notes will be redeemed, in accordance with their terms, at a redemption price equal to the present value of the principal and unpaid interest, plus accrued interest to the redemption date. The Company will use the proceeds from its recently completed sale-leaseback for a portion of the space that the Company owns in its New York headquarters to fund the redemption payment.
This press release does not constitute a notice of redemption of the 4.5% notes due 2010. The redemption is being made solely pursuant to a notice of redemption dated March 9, 2009, which will be delivered to the holders of the notes by The Bank of New York Mellon, the trustee under the indenture governing the notes.
The New York Times Company (NYSE: NYT), a leading media company with 2008 revenues of $2.9 billion, includes The New York Times, the International Herald Tribune, The Boston Globe, 16 other daily newspapers, WQXR-FM and more than 50 Web sites, including NYTimes.com, Boston.com and About.com. The Companys core purpose is to enhance society by creating, collecting and distributing high-quality news, information and entertainment.
Except for the historical information contained herein, the matters discussed in this press release are forward-looking statements that involve risks and uncertainties that could cause actual results to differ materially from those predicted by such forward-looking statements. These risks and uncertainties include national and local conditions, as well as competition, that could influence the levels (rate and volume) of retail, national and classified advertising and circulation generated by our various markets and material increases in newsprint prices. They also include other risks detailed from time to time in the Companys publicly filed documents, including the Companys Annual Report on Form 10-K for the year ended December 28, 2008. The Company undertakes no
obligation to publicly update any forward-looking statement, whether as a result of new information, future events or otherwise.
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