AGREEMENT OF LEASE
between
THE CITY OF NEW YORK,
Landlord,
and
NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION
Tenant.
Dated as of December 15, 1993
Premises
Block 4183, p/o Lot 1, Block 4242, p/o Lot 1, Block
4243, p/o Lot 1, Block 4280, p/o Lot 1, Block 4281,
p/o Lot 1, Block 4282, Lot 1, Block 4283, Lot 1, Block
4284, Lot 1, Block 4306, p/o Lot 1 and Lot 44, Block
4307, Lot 1 and p/o Lot 4, Block 4308, Lot 1 and Lot
36, Block 4310, Lot 32, Block 4336, Lot 35 and p/o Lot
50, Block 4337, Lot 62 and p/o Lot 76, and Block 4339,
Lot 46, plus demapped portions of 25th Avenue, 28th
Avenue, 138th Street and 139th Street on the Tax Map
for the Borough of Queens, in the County of Queens,
City and State of New York, and assigned new tentative
tax block and lot numbers Block 4282, Lot 100 for
future identification.
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS................................. 3
ARTICLE 2 DEMISE OF PREMISES AND TERM OF LEASE........ 31
Section 2.01. Demise of Premises; Term 31
Section 2.02. Pre-Possessory Date Access
and Use 31
ARTICLE 3 RENTAL...................................... 34
Section 3.01. Method and Place of Payment 34
Section 3.02. Base Rent 34
Section 3.03. [Intentionally Omitted] 36
Section 3.04. [Intentionally Omitted] 36
Section 3.05. Payments in Lieu of Taxes 36
Section 3.06. Offset for Funding Default 47
Section 3.07. [Intentionally Omitted] 47
Section 3.08. Exemption From Certain Taxes 47
Section 3.09. Impositions and College Point
Improvement Fund Payments 55
Section 3.10. Single Tax Lot 60
Section 3.11. Tax Benefits Applications 60
ARTICLE 4 OFFSETS AGAINST RENTAL...................... 62
Section 4.01. Offsets Against Rental 62
Section 4.02. Notice of Offset 63
Section 4.03. Inability to Take Full Amount
of Offset 64
ARTICLE 5 PROHIBITION AGAINST LANDLORD TRANSFERS
AND ENCUMBRANCES............................ 65
Section 5.01. Prohibited Encumbrances 65
Section 5.02. Prohibited Transfers 65
ARTICLE 6 LATE CHARGES................................ 67
ARTICLE 7 INSURANCE................................... 68
Section 7.01. Insurance Requirements 68
Section 7.02. Treatment of Proceeds 69
Section 7.03. General Requirements Applicable
to Policies 70
Section 7.04. Increases in Coverage 73
Section 7.05. No Representation as to Adequacy
of Coverage 73
Section 7.06. Blanket and/or Umbrella Policies 73
Section 7.07. Liability Insurance Requirements 74
Section 7.08. Property and Other Insurance
Requirements 75
Section 7.09. Construction Insurance Requirements 76
Section 7.10. Deductibles 77
Section 7.11. No Separate Contractor Coverage
Required 77
ARTICLE 8 DAMAGE, DESTRUCTION AND RESTORATION......... 79
Section 8.01. Notice to Landlord 79
Section 8.02. Tenant's Option Upon a Substantial
Casualty Loss 79
Section 8.03. Lease Termination or Purchase 80
Section 8.04. Casualty Restoration Construction
Work 80
Section 8.05. Restoration Funds 81
Section 8.06. Effect of Casualty on This Lease 82
ARTICLE 9 CONDEMNATION................................ 83
Section 9.01. Substantial Condemnation 83
Section 9.02. Less Than A Substantial
Condemnation 85
Section 9.03. [Intentionally Omitted] 86
Section 9.04. Temporary Taking 86
Section 9.05. Governmental Action Not Resulting
in a Condemnation 88
Section 9.06. Collection of Awards 89
Section 9.07. Tenant's Approval of Settlements 89
Section 9.08. Negotiated Sale 89
Section 9.09. Reduction of Base Rent and
Land PILOT 89
Section 9.10. Reduction of Purchase Price 90
ARTICLE 10 TRANSFER AND SUBLETTING..................... 91
Section 10.01. Tenant's Right to Assign, Sublet,
Transfer, Etc. 91
Section 10.02. Subtenant Violation 101
Section 10.03. Tenant's Right to Sublease 101
ARTICLE 11 MORTGAGES................................... 102
Section 11.01. Effect of Mortgages 102
Section 11.02. Mortgagee's Rights Not Greater
than Tenant's 102
Section 11.03. Notice and Right to Cure Tenant's
Defaults 103
Section 11.04. Execution of New Lease 106
ii
Section 11.05. Recognition by Landlord of Recognized
Mortgagee Most Senior in Lien 109
Section 11.06. Appearance at Condemnation
Proceedings 110
Section 11.07. Rights Limited to Recognized
Mortgagees 110
Section 11.08. Consent to Assignment of Tenant
Rights 110
Section 11.09. Prohibition Against Surrender 112
Section 11.10. No Merger 112
Section 11.11. No Subordination to Fee Mortgage 112
Section 11.12. No Modifications 112
Section 11.13. Estoppel Certificate 113
Section 11.14. Modification of Lease 113
Section 11.15. Chattel Mortgages 114
Section 11.16. Additional Notices to Mortgagees 115
Section 11.17. Provisions of Lease Continue in
Effect After Foreclosure 115
ARTICLE 12 CAR POUND................................... 116
Section 12.01. Removal of Car Pound 116
Section 12.02. Damages for Tenant's Failure to
Construct after Notice 117
Section 12.03. Damages for Landlord's Failure
to Remove Car Pound 119
Section 12.04. Tenant's Self-Help Remedy 123
Section 12.05. Tenant's Right to Terminate
the Lease 125
Section 12.06. Interim Car Pound 126
Section 12.07. Interim Car Pound License 127
ARTICLE 13 CONSTRUCTION WORK........................... 128
Section 13.01. Construction of the Project 128
Section 13.02. Subsequent Construction Work 139
Section 13.03. [Intentionally Omitted] 139
Section 13.04. Supervision of Architect 140
Section 13.05. Conditions Precedent to Tenant's
Commencement of All Construction
Work 140
Section 13.06. Completion of Construction Work 141
Section 13.07. Title to the Improvements
and Materials 142
Section 13.08. [Intentionally Omitted] 143
Section 13.09. Construction Agreements 143
Section 13.10. Consent for Demolition 145
ARTICLE 14 REPAIRS, MAINTENANCE, ETC................... 146
Section 14.01. Maintenance of the Premises, Etc. 146
Section 14.02. [Intentionally Omitted] 146
Section 14.03. Free of Dirt, Snow, Etc. 146
Section 14.04. No Obligation of Landlord
To Repair or to
Supply Utilities 146
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ARTICLE 15 CAPITAL IMPROVEMENTS........................ 148
Section 15.01. Capital Improvements 148
ARTICLE 16 REQUIREMENTS OF GOVERNMENTAL AUTHORITIES.... 149
Section 16.01. Requirements 149
ARTICLE 17 DISCHARGE OF LIENS; BONDS................... 151
Section 17.01. Creation of Liens 151
Section 17.02. Discharge of Liens 151
ARTICLE 18 REPRESENTATIONS............................. 153
Section 18.01. Landlord's Representations
and Warranties 153
Section 18.02. Tenant's Acknowledgment of No
Other Representations 155
Section 18.03. No Payments 156
ARTICLE 19 LANDLORD NOT LIABLE FOR INJURY OR
DAMAGE, ETC................................. 157
Section 19.01. Landlord not Liable for Injury
or Damage, Etc. 157
Section 19.02. Waiver of Claims 158
ARTICLE 20 INDEMNIFICATION OF LANDLORD AND OTHERS...... 159
Section 20.01. Tenant's Obligation to Indemnify 159
Section 20.01A. Landlord's Obligation to Indemnify 160
Section 20.02. Contractual Liability 161
Section 20.03. Defense of Claim, Etc. 161
Section 20.04. Notice 163
Section 20.05. Survival Clause 163
ARTICLE 21 PURCHASE OPTION ............................ 164
Section 21.01. Purchase Option 164
Section 21.02. Default under Purchase Agreement;
Extension of Term 167
Section 21.03. Condemnation 171
Section 21.04. Right to Terminate 171
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ARTICLE 22 LANDLORD'S RIGHT TO PERFORM TENANT'S
COVENANTS................................... 172
Section 22.01. Landlord's Right to Perform 172
Section 22.02. Reimbursement of Amounts Paid 172
Section 22.03. Waiver, Release and Assumption of
Obligations 172
ARTICLE 23 USE OF THE PREMISES......................... 174
Section 23.01. Permitted Uses 174
Section 23.02. Prohibited Uses 174
ARTICLE 24 EVENTS OF DEFAULT, CONDITIONAL
LIMITATIONS, REMEDIES, ETC.................. 175
Section 24.01. Definition 175
Section 24.02. Enforcement of Performance 177
Section 24.03. Expiration and
Termination of Lease 177
Section 24.04. Arbitration of Certain Defaults 180
Section 24.05. Receipt of Moneys after Notice
or Termination 181
Section 24.06. Exercise of Purchase Option 181
Section 24.07. Strict Performance 182
Section 24.08. Right to Enjoin Defaults 182
Section 24.09. Survival of Article 183
ARTICLE 25 NOTICES..................................... 184
Section 25.01. All Notices, Communications,
Etc. in Writing 184
Section 25.02. Service 185
ARTICLE 26 NO SUBORDINATION............................ 186
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ARTICLE 27 SANITARY SEWER.............................. 187
Section 27.01. Requirement of Sanitary Sewer 187
Section 27.02. Obligation to Construct Sanitary
Sewer 188
Section 27.03. Damages for Landlord's Failure
to Construct Sanitary Sewer 190
Section 27.04. Damages for Delaying Tenant's
Construction of the Sanitary
Sewer 191
Section 27.05. Sewer Self-Help Remedy 192
ARTICLE 28 ABANDONMENT OF THE PROJECT.................. 194
Section 28.01. Effect of Abandonment of the Project 194
Section 28.02. Loss of Certain Benefits 194
Section 28.03. Reimbursement of Funding 195
Section 28.04. Right to Terminate 196
ARTICLE 29 CERTIFICATES BY LANDLORD AND TENANT......... 198
Section 29.01. Certificate of Tenant 198
Section 29.02. Certificate of Landlord 198
ARTICLE 30 CONSENTS AND APPROVALS...................... 200
Section 30.01. Effect of Granting or Failure to
Grant Approvals or Consents 200
Section 30.02. Remedy for Refusal to Grant
Consent or Approval 200
Section 30.03. No Unreasonable Delay 201
Section 30.04. No Fees Etc. 201
ARTICLE 31 SURRENDER AT END OF TERM.................... 202
Section 31.01. Surrender of Premises 202
Section 31.02. Delivery of Subleases, Etc. 202
Section 31.03. Personal Property 203
Section 31.04. Survival Clause 204
ARTICLE 32 ENTIRE AGREEMENT............................ 205
ARTICLE 33 QUIET ENJOYMENT............................. 206
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ARTICLE 34 ARBITRATION................................. 207
Section 34.01. Disputes to be Submitted to
Arbitration 207
Section 34.02. Procedure for Arbitration 207
Section 34.03. Selection of Arbiter 208
Section 34.04. Recognized Mortgagees 210
Section 34.05. Arbiter's Decision 210
Section 34.06. Lists of Arbiters 210
ARTICLE 35 ADMINISTRATIVE AND JUDICIAL
PROCEEDINGS, CONTESTS, ETC.................. 215
Section 35.01. Tax Contest Proceedings 215
Section 35.02. Imposition Contest Proceedings 216
Section 35.03. Requirement Contest 217
Section 35.04. Landlord's Participation
in Contest Proceedings 218
ARTICLE 36 SALES AND COMPENSATING USE TAXES............ 219
Section 36.01. Exemption 219
Section 36.02. Public Purpose Payments 219
ARTICLE 37 REPORTS, SUBMISSIONS AND RECORDS............ 221
Section 37.01. Financial Reports 221
Section 37.02. Submission of Certificates
of Occupancy 221
ARTICLE 38 RECORDING OF LEASE.......................... 222
ARTICLE 39 TENANT'S PROPERTY........................... 223
ARTICLE 40 NONDISCRIMINATION; AFFIRMATIVE ACTION....... 224
Section 40.01. Executive Order No. 50 224
Section 40.02. Limitations 225
Section 40.03. E.O. 50 Remedies 226
Section 40.04. Nondiscrimination; Affirmative
Action 227
Section 40.05. Nondiscrimination Remedies 228
ARTICLE 40A INVESTIGATIONS, ETC......................... 230
Section 40A.01. Cooperation in Investigations 230
Section 40A.02. Hearing 231
Section 40A.03. Adjournments of Hearing, Etc. 232
Section 40A.04. Penalties 232
Section 40A.05. Criteria for Determination 234
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Section 40A.06. Payment of Penalties 235
Section 40A.07. Definitions 235
Section 40A.08. Exclusive Remedy 236
Section 40A.09. Right to Dispute Determinations
of Deputy Mayor 237
ARTICLE 41 EMPLOYMENT REPORTING AND
REQUIREMENTS................................ 238
Section 41.01. Employment Reporting
and Requirements 238
ARTICLE 42 APPOINTMENT OF LEASE ADMINISTRATOR.......... 240
Section 42.01. Appointment of Lease Administrator 240
Section 42.02. Revocation of Appointment 240
Section 42.03. Binding Nature of Lease
Administrator's Actions 240
Section 42.04. Obligation of Landlord to Perform
Certain Acts 241
ARTICLE 43 MISCELLANEOUS............................... 243
Section 43.01. Captions 243
Section 43.02. Table of Contents 243
Section 43.03. Reference to Landlord and Tenant 243
Section 43.04. Person Acting on Behalf of a Party
Hereunder 243
Section 43.05. Comptroller's Statutory
Right of Audit 244
Section 43.06. Limitation on Liability 244
Section 43.07. Remedies Cumulative 248
Section 43.08. Merger 248
Section 43.09. Performance at Party's Sole
Cost and Expense 249
Section 43.10. Relationship of Landlord and Tenant 249
Section 43.11. Waiver, Modification, Etc. 249
Section 43.12. [Intentionally Omitted] 249
Section 43.13. Governing Law 249
Section 43.14. Successors and Assigns 250
Section 43.15. Publicity 250
Section 43.16. [Intentionally Omitted] 250
Section 43.17. [Intentionally Omitted] 250
Section 43.18. Termination by Tenant 251
Section 43.19. Hazardous Substances, Etc. 251
ARTICLE 44 STORM DRAINAGE SYSTEM....................... 254
ARTICLE 45 BROKERS..................................... 255
ARTICLE 46 WHITESTONE ROAD............................. 256
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EXHIBITS
PAGE
Exhibit A - Mayoral Authorization 2
Exhibit B - Land 17
Exhibit C - Maximum Improvement PILOT 18
Exhibit D - Maximum Land PILOT 19
Exhibit E - Sanitary Sewer Easement 31
Exhibit F - [Intentionally Omitted]
Exhibit G - Title Matters 31
Exhibit H - Form of Assumption Agreement 92
Exhibit I - Plan of Parcels A, B and C 31
Exhibit J - South Brooklyn Marine Terminal Site 124
Exhibit K - Agreement of Sale and Purchase 165
Exhibit L - [Intentionally Omitted]
Exhibit M-1 Reimbursement Schedule 195
Exhibit M-2 Amortized Reimbursement Schedule 195
Exhibit N - Employment Questionnaire 238
Exhibit O - Site Connection Proposal Form 254
Exhibit P - E.O. 50 Construction Contract Rider 224
ix
AGREEMENT OF LEASE
AGREEMENT OF LEASE, made as of the 15th day of
December, 1993, between THE CITY OF NEW YORK, a municipal
corporation of the State of New York, having an address at City
Hall, New York, New York 10007, as landlord, and NEW YORK CITY
ECONOMIC DEVELOPMENT CORPORATION, a local development
corporation formed under Section 1411 of the New York
Not-for-Profit Corporation Law, having an address at 110
William Street, New York, NY 10038, as tenant.
W I T N E S S E T H:
RECITALS
WHEREAS:
(1) The City of New York is the owner of the Land (as
hereinafter defined) and any buildings and other improvements
situated thereon or therein.
(2) The parties desire to provide a public benefit by
providing for the construction and operation on the Land of a
new facility for the printing, production and distribution of
newspapers to be constructed and operated by The New York Times
Newspaper Division of The New York Times Company or an
Affiliate (as hereinafter defined) of The New York Times
Newspaper Division of The New York Times Company.
(3) The Mayor of the City of New York has authorized
the City of New York to enter into this Lease pursuant to
Mayoral Authorization Cal. No. 9, dated January 13, 1993, a
copy of which is annexed hereto as Exhibit A.
(4) It is anticipated that the number of permanent
jobs to be retained and/or created in connection with the
Project (as hereinafter defined) is approximately 410 - 710,
depending upon the size of the Project to be constructed by
Tenant (as hereinafter defined), based upon manning levels
currently in effect under conditions resulting from current
technology and collective bargaining agreements currently in
effect; provided, however, that The New York Times Newspaper
Division of The New York Times Company makes no representations
as to the number of jobs to be retained and/or created under
conditions resulting from future technological advances or
modifications to existing collective bargaining agreements or
new collective bargaining agreements that may become effective
during the Term (as hereinafter defined).
TERMS OF AGREEMENT
NOW, THEREFORE, it is hereby mutually covenanted and
agreed by and between the parties hereto that this Lease is
made upon and subject to the terms, covenants and conditions
hereinafter set forth.
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ARTICLE 1
DEFINITIONS
For all purposes of this Lease, the terms defined in
this Article shall have the following meanings:
"Abandonment of the Project" means any of the
following occurrences:
(a) Tenant shall have delivered to Landlord
written notice of its election to abandon the Project
as of the date specified in such notice, in which
event Abandonment of the Project shall be effective on
such date.
(b) at any time during the period between the
Lease Execution Date and the Operational Date, Tenant
shall have permanently relocated substantially all of
the jobs and/or functions directly related to the
printing, bundling, collating, production and
distribution of The New York Times newspaper located,
on the Lease Execution Date, at the 43rd Street
Facility to another facility outside of the City of
New York, in which event Abandonment of the Project
shall be effective on the effective date of such
permanent relocation of jobs and/or functions;
(c) at any time after the Construction
Commencement Date Tenant shall have failed to make
reasonable and diligent efforts to construct a
-3-
facility constituting at least the Minimum Printing
Facility to completion, and as a result of such
failure Tenant shall not Substantially Complete
construction of a facility constituting at least the
Minimum Printing Facility by the Scheduled Completion
Date (subject to Unavoidable Delays), and such failure
to Substantially Complete construction of a facility
constituting at least the Minimum Printing Facility
shall continue for thirty (30) days after written
notice from Landlord, in which event Abandonment will
be effective on the day after the expiration of such
30-day period (provided that prior to the expiration
of such 30-day period, Tenant has not commenced to
cure such failure);
(d) on or before the Outside Operation Date,
Tenant shall have failed to equip the Minimum Printing
Facility with printing presses and such other
equipment as is necessary to enable the Minimum
Printing Facility to be operational for the printing,
collating, bundling and distribution of newspapers and
magazines or other periodicals or printed materials
and to commence the operation of the Minimum Printing
Facility, in which event Abandonment shall be
effective on the Outside Operation Date; or
-4-
(e) at any time after the Operational Date,
Tenant shall have ceased operation of the Minimum
Printing Facility and failed to resume the operation
of the Minimum Printing Facility as a major printing
facility serving the New York City Metropolitan Area
within a five (5) year period and such failure shall
have continued for thirty (30) days after written
notice from Landlord, in which event Abandonment will
be effective on the day after expiration of such
30-day period (provided that prior to the expiration
of such 30-day period, Tenant has not commenced to
cure such failure).
Notwithstanding anything to the contrary contained herein,
Abandonment of the Project shall in no event be deemed to have
occurred if The New York Times Company or any successor thereto
shall have assigned its interest in this Lease in accordance
with the provisions hereof and the assignee of such interest in
this Lease shall either perform or continue to perform the
obligations of the Tenant set forth herein with respect to the
construction, equipping and operation of the Minimum Printing
Facility. Nothing contained herein shall be construed as
granting to any such assignee any extension of the time periods
set forth herein for the performance of such obligations.
"Accounting Principles" at any time means the then
current generally accepted accounting principles consistently
-5-
applied which relate to the accrual method of accounting, but
subject to the exceptions, if any, expressly set forth in this
Lease.
"Acquisition Date" has the meaning provided in Section
21.02.
"Affiliate" means, with respect to any Person, any
other Person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under
common control with, such Person. For purposes hereof, the term
"control" means the possession by a Person, directly or
indirectly, of the power to direct or cause the direction of
the management and policies of another Person through the
ownership of voting rights or interests, by contract, or
otherwise. Ownership of or by a Person includes beneficial
ownership effected by ownership or control of intermediate
entities. Unless the context otherwise requires, any reference
to an "Affiliate" in this Lease shall be deemed to refer to an
Affiliate of Tenant.
"Amortized EDC Reimbursement Amount" has the meaning
provided in Section 28.03(b).
"Amortized Reimbursement Schedule" has the meaning
provided in Section 28.03(b).
"Arbiter" has the meaning provided in Section 34.02(a).
"Architect" means any registered architect,
architectural firm, professional engineer or engineering firm,
-6-
or a combined practice or association, licensed in the State of
New York selected by Tenant, or any licensed architect or
engineer on the staff of a general contractor selected by
Tenant responsible for the performance of all or any portion of
the general construction work relative to any Construction Work
who is authorized to sign construction documents, in his or her
professional capacity, on behalf of such general contractor.
"Base Rent" has the meaning provided in Section 3.02.
"Basic Penalty Offset" has the meaning provided in
Section 12.03(b).
"Basic Purchase Price" has the meaning provided in
Section 21.01(a).
"Buildings Department" means the New York City
Department of Buildings and its successors.
"Business Day" mean any day other than a Saturday,
Sunday, legal holiday, or a day on which banking institutions
in New York City are authorized by law or executive order to
close.
"Capital Improvement" has the meaning provided in
Section 15.01(c).
"Car Pound" means the Police Department Vehicle Pound
operated on the Land by the New York City Police Department as
the same may exist on the Lease Execution Date.
"Car Pound Completion Date" has the meaning provided
in Section 12.03(b).
-7-
"Car Pound Offset Amounts" has the meaning provided in
Section 12.03.
"Car Pound Removal Date" has the meaning provided in
Section 12.01(a).
"Car Pound Removal Notice" has the meaning provided in
Section 12.01.
"Casualty Restoration" has the meaning provided in
Section 8.02(a).
"Certificate of Occupancy" means a certificate of
occupancy, either temporary or permanent, issued by the
Buildings Department.
"Certified Public Accountant" means an independent
certified public accountant or accounting firm selected by
Tenant.
"City" means The City of New York, a municipal
corporation of the State of New York.
"Collateral Assignment" has the meaning provided in
Section 10.01(b).
"College Point Improvement Fund" has the meaning
provided in Section 3.09(b)(ii).
"College Point Improvement Fund Payments" has the
meaning provided in Section 3.09(b)(iii).
"Commence Construction of the Project" or
"Commencement of Construction of the Project" has the meaning
provided in Section 13.01(b)(i).
-8-
"Comptroller" has the meaning provided in Section
37.03(b).
"Condemnation" has the meaning provided in Section
9.01(c)(i)
"Condemnation Restoration" has the meaning provided in
Section 9.02(b).
"Construction Agreement(s)" has the meaning provided
in Section 13.09(b).
"Construction Commencement Date" has the meaning
provided in Section 13.01(b)(ii).
"Construction of the Project" has the meaning provided
in Section 13.01(b)(iii).
"Construction Work" means any construction work
performed under this Lease including, without limitation,
Construction of the Project, a repair, a Restoration, a Capital
Improvement, or work performed in connection with the use,
maintenance or operation of the Premises, or any demolition
work.
"Date of Condemnation" has the meaning provided in
Section 9.01(c)(ii).
"Default" means any condition or event, or failure of
any condition or event to occur, which constitutes, or would
after notice and/or the lapse of time constitute, an Event of
Default.
"Default Damages Period" has the meaning provided in
Section 21.02(b).
-9-
"DEP Sewers" has the meaning provided in Section 43.17.
"Dispute Notice" has the meaning provided in Section
34.02(a).
"Division" means The New York Times Newspaper Division
of The New York Times Company.
"EDC" means New York City Economic Development
Corporation and its successors.
"EDC Reimbursement Amount" has the meaning provided in
Section 28.03(a).
"Engineer of Record" means the professional engineer,
if any, designated to act as engineer of record by (a) Tenant,
(b) any general contractor selected by Tenant responsible for
the performance of general construction work relative to the
construction of the Project, or (c) any construction manager
selected by Tenant responsible for the performance of
construction management services relative to the the
construction of the Project.
"Equipment" means all fixtures and personal property
incorporated in or attached to and used or usable in the
operation of or in connection with the Premises and shall
include, but shall not be limited to, all apparatus, devices,
motors, engines, dynamos, compressors, pumps, boilers and
burners, heating, lighting, plumbing, ventilating, air cooling
and air conditioning equipment; chutes, ducts, pipes, tanks,
fittings, conduits and wiring; incinerating equipment;
-10-
elevators, escalators and hoists; partitions, doors, cabinets,
hardware; floor, wall and ceiling coverings; washroom, toilet
and lavatory equipment; lobby decorations; windows, window
washing hoists and equipment; communications equipment; and all
additions thereto or replacements thereof, excluding, however,
Tenant's Property and any personal property which is owned by
Subtenants or contractors engaged in maintaining same, or by
utility companies serving the Premises.
"Event of Default" has the meaning provided in Section
24.01.
"Exempt Taxes" has the meaning provided in Section
3.08.
"Expansion Construction Commencement Date" has the
meaning provided in Section 3.05(b)(ii).
"Expansion Improvement" has the meaning provided in
Section 3.05(b)(ii)(B)(2).
"Expiration Date" means, subject to postponement
pursuant to the provisions of Section 21.02 hereof, the
earliest to occur of (i) the twenty-fifth (25th) anniversary of
the Construction Commencement Date, (ii) the thirty-fifth
(35th) anniversary of the Lease Execution Date, or (iii) the
date, if any, upon which this Lease is terminated pursuant to
any provision of this Lease.
"Failure to Exercise Notice" has the meaning provided
in Section 21.01(c).
-11-
"15th Year Normal Improvements PILOT" has the meaning
provided in Section 3.05(b)(ii)(C).
"Finance Department" means the New York City
Department of Finance and its successors.
"First Year Abatement Period" has the meaning provided
in Section 21.02(b).
"Fiscal Year" has the meaning provided in Section
3.05(d)(iv).
"Fixed Improvements Value" has the meaning provided in
Section 3.02(b)(ii)(A).
"Fixed Land PILOT" has the meaning provided in Section
3.05(b)(i)(B)(1)(y)(I).
"Floor Area" has the meaning provided for such term in
the City's Zoning Resolution effective on the Lease Execution
Date.
"4th Anniversary Date" has the meaning provided in
Section 3.02(a).
"43rd Street Facility" meants Tenant's 43rd Street
facility as it exists on the Lease Execution Date.
"Full Assessment Date" has the meaning provided in
Section 3.05(b)(ii)(A).
"Fund" means the College Point Improvement Fund.
"Funding" has the meaning provided in Funding
Agreement #1, Funding Agreement #2, Funding Agreement #3 or
Funding Agreement #4, as applicable.
-12-
"Funding Agreement #1", "Funding Agreement #2",
"Funding Agreement #3" and "Funding Agreement #4" mean,
respectively, the four funding agreements so denominated
between EDC and The New York Times Company, dated as of the
Lease Execution Date, as the same may be amended from time to
time.
"Governmental Authority or Authorities" means the
United States of America, the State of New York, New York City
and any agency, department, commission, board, bureau,
instrumentality or political subdivision of any of the
foregoing, now existing or hereafter created, having legal
jurisdiction over the Premises or any portion thereof or any
street, road, avenue or sidewalk comprising a part of,
adjoining, or in front of, the Premises, or any vault in or
under the Premises.
"Gross Building Area" means, at any time, the gross
building area of the Improvements completed as of such time as
determined by the Finance Department or, if Tenant does not
agree with such determination, Tenant shall give notice to
Lease Administrator of such disagreement, and in such event,
the Gross Building Area shall be determined by arbitration in
accordance with Article 34. Lease Administrator shall promptly
notify Tenant of the Finance Department's determination of
Gross Building Area and Lease Administrator shall have the
right to include in such notice a provision indicating that
such determination of Gross Building Area shall be binding upon
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Landlord and Tenant for purposes of this Lease unless Tenant
notifies Lease Administrator of its disagreement with such
determination within ninety (90) days after Tenant's receipt of
such notice from Lease Administrator. In the event that any
such determination of Gross Building Area becomes binding upon
Landlord and Tenant for purposes of this Lease, such
determination shall remain binding unless and until there is a
recalculation of Gross Building Area by the Finance Department
as the result of an expansion of or addition to the
Improvements. The binding nature of any such determination of
Gross Building Area shall be for purposes only of performing
calculations under Section 3.05(b)(ii) hereof, and shall not
prejudice, limit or affect in any manner Tenant's rights under
Section 35.01(a) hereof or be admissible in any action or
proceeding referred to in said Section 35.01(a).
"Hazardous Substances" has the meaning provided in the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 USCA SEC.9601 et. seq.
"Hazardous Substances Extension Period" has the
meaning provided in Section 43.19(d).
"Imposition" or "Impositions" has the meaning provided
in Section 3.09(b)(i).
"Improvements" means any building (including footings
and foundations), Equipment, and other improvements and
appurtenances of every kind and description hereafter erected,
-14-
constructed, or placed upon the Land including, without
limitation, the Initial Improvements, any Expansion
Improvements, any Capital Improvements and any and all
alterations and additions thereto and replacements and
substitutions therefor, excluding, however, Tenant's Property
and any personal property which is owned by Subtenants or
contractors engaged in maintaining same, or by utility
companies serving the Premises.
"Improvements PILOT" has the meaning provided in
Section 3.05(b)(ii).
"Improvements Taxes" has the meaning provided in
Section 3.05(d)(iii).
"Initial Improvements" means any building or buildings
(including footings and foundations), at least 360,000 square
feet in Gross Building Area (or such lesser amount of square
feet as may qualify for reimbursement under Funding Agreement
#1), first placed on the Land in accordance with the Plans and
Specifications.
"Initial Improvements PILOT Period" has the meaning
provided in Section 3.05(b)(ii).
"Initial Land PILOT Period" has the meaning provided
in Section 3.05(b)(i)(A).
"Initial Land PILOT Period Termination Date" has the
meaning provided in Section 3.05(b)(i)(A).
"Initial Three Month Period" has the meaning provided
in Section 12.03(a).
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"Institutional Lender" means (a) a state or federally
chartered savings bank, savings and loan association,
commercial bank, trust company (whether acting individually or
in a fiduciary capacity), financial institution, other entity
involved in the business of making loans or providing
financing, trust fund whose trustee is a bank or trust company,
or any similar institution, or any of the foregoing organized
under the laws of any foreign jurisdiction; an insurance
company organized and existing under the laws of the United
States or any state thereof or the laws of any foreign
jurisdiction; a religious, educational or eleemosynary
institution or any organization described in Section 501(c)(3)
of the Internal Revenue Code; a federal, state or municipal
employee's welfare, benefit, pension or retirement fund; a
brokerage, investment advisor or investment banking
organization (acting as principal or agent); any governmental
agency or entity insured by a governmental agency; any trust,
partnership, or other entity organized by any of the foregoing
for the purpose of acquiring receivables, or other assets from
or providing financing to Tenant as part of a securitized
financing; or any combination of Institutional Lenders;
provided, that each of the above entities shall qualify as an
Institutional Lender only if it shall (A) be subject (or agree
to be subject) to the jurisdiction of the courts of the State
of New York in any action with respect to its rights hereunder
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as a Recognized Mortgagee, and (B) have net assets of not less
than $50,000,000; provided, however, that with respect to any
institution acting in a trust capacity or as agent or which has
organized an entity for purposes of financing a Mortgage, such
net asset requirement shall apply to such institution rather
than to the entity for which such institution is acting in
trust for, as agent for, or has organized for the purpose of a
financing transaction, and
(b) any Affiliate of an Institutional Lender described
in clause (a).
"Land" means the land described in Exhibit B hereto.
"Land PILOT" has the meaning provided in Section
3.05(b)(i)
"Land Taxes" has the meaning provided in Section
3.05(d)(ii).
"Landlord" means the City acting in its capacity as
such (rather than in its municipal capacity), provided,
however, that if the City or any successor to its interest
hereunder transfers or assigns its interest in the Land or its
interest under this Lease (which assignee must be a municipal
entity), then from and after the date of such assignment or
transfer, the term "Landlord" shall mean the assignee or
transferee.
"Landlord Indemnitees" has the meaning provided in
Section 20.01.
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"Landlord's Liability Amount" has the meaning provided
in Section 43.06(a).
"Landlord's Sewer Commencement Date" has the meaning
provided in Section 27.02.
"Landlord's Unavoidable Delays" has the meaning
provided in Section 12.01.
"Late Charge Rate" means one percent (1%) over the
Prime Rate.
"Lease" means this Agreement of Lease and all exhibits
hereto and all amendments, modifications and supplements
thereof.
"Lease Administrator" means EDC, or an affiliate
entity controlled by EDC, acting in its capacity as
administrator of this Lease pursuant to the terms of Article 42
hereof.
"Lease Execution Date" means the date on which this
Lease has been fully executed by both parties hereto and
unconditionally delivered by each such party to the other.
"Lease Year" means each full calendar year falling
within the Term and the partial calendar year, if any, that
begins on the Possessory Date.
"Major Sublease" has the meaning provided in Section
10.01(b)(i)(B).
"Maximum Improvements PILOT" means, for any period,
the amount of Improvements PILOT for such period shown in
Exhibit C, after deducting the applicable abatement amounts
shown on said Exhibit C.
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"Maximum Land PILOT" means, for any period, the amount
of Land PILOT for such period shown in Exhibit D, after
deducting the applicable abatement amounts shown on said
Exhibit D.
"Minimum Printing Facility" means a facility for the
printing, production and distribution of newspapers, magazines
and/or other periodicals of not less than approximately 360,000
square feet of floor area, which facility and its foundation
shall be adequate to accommodate the installation and operation
therein of four printing presses and other equipment related
primarily to printing, collating, bundling and distribution
functions necessary in connection with the production of
newspapers and magazines or other periodicals or printed
materials.
"Mortgage" has the meaning provided in Section
11.01(b).
"Mortgagee" means the holder of a Mortgage.
"Normal Expansion Improvements PILOT" has the meaning
provided in Section 3.05(b)(ii)(B).
"Normal Improvements PILOT" has the meaning provided
in Section 3.05(b)(ii)(B).
"Notice Period" has the meaning provided in Section
34.02(b).
"Offset Amounts" has the meaning provided in Section
4.01.
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"Offset Dispute Notice" has the meaning provided in
Section 4.02.
"Offset Notice" has the meaning provided in Section
4.02.
"Offset Liability Portion" has the meaning provided in
Section 43.06(a).
"Operational Date" means the date on which Tenant
commences the operation of the Minimum Printing Facility.
"Outside Commencement Date" has the meaning provided
in Section 13.01(b)(iv).
"Outside Operation Date" means the date which is
five (5) years after Substantial Completion of construction of
the Minimum Printing Facility.
"Parcel A," "Parcel B," and "Parcel C" have the
meanings provided in Section 2.02.
"Permitted Encumbrances" has the meaning provided in
Section 5.1 of the Purchase Agreement.
"Permitted Testing" has the meaning provided in
Section 2.02.
"Person" means an individual, corporation,
partnership, joint venture, estate, trust, unincorporated
association; any federal, state, county or municipal government
or any bureau, department or agency thereof; and any fiduciary
acting in such capacity on behalf of any of the foregoing.
"PILOT" has the meaning provided in Section 3.05(a).
"PILOT Refund Amount" has the meaning provided in
Section 35.02.
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"Plans and Specifications" has the meaning provided in
Section 13.01(b)(v).
"Plans and Specifications Offset Amount" has the
meaning provided in Section 13.01(h).
"Possessory Date" means, subject to the applicable
provisions of Article 12 hereof, the date on which possession
of the Premises is delivered to Tenant free of the Car Pound
and all vehicles and structures and other improvements, free of
any claims to possession by any party and free of Hazardous
Substances to the extent required by Section 43.19(a) hereof,
and substantially free of any debris, but subject nevertheless
to any obligations that may be imposed upon Landlord pursuant
to the provisions of Section 43.19(c) hereof.
"Power Agreement" means that certain New York City
Public Utility Service Power Service Agreement made as of May
3, 1993 between The City of New York, acting by and through its
Public Utility Service, and the Division.
"Preliminary Site Work" has the meaning provided in
Section 13.01(b)(i).
"Premises" means the Land and the Improvements.
"Prime Rate" means the base or prime rate of interest
charged from time to time by Chemical Bank, as published in The
New York Times newspaper or by The Wall Street Journal if such
rate is not then being published by The New York Times
newspaper.
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"Printing Facility" means a facility for the printing,
production and distribution of newspapers and magazines or
other periodicals or printed materials.
"Prohibited Encumbrances" has the meaning provided in
Section 5.01.
"Prohibited Person" has the meaning provided in
Section 10.01(c).
"Project" means a Printing Facility of not less than
approximately 360,000 square feet and, in the sole discretion
of Tenant, such other buildings and Improvements as Tenant may
deem necessary in connection with such Printing Facility
including, without limitation, the expansion of the Printing
Facility to a size greater that 360,000 square feet.
"Property" has the meaning provided in Section
21.01(a).
"Public Purpose Payment" has the meaning provided in
Section 36.02.
"Public Sewer Delay" has the meaning provided in
Section 27.04.
"Purchase Agreement" has the meaning provided in
Section 21.01(d).
"Purchase Default Date" has the meaning provided in
Section 21.02(b).
"Purchase Notice" has the meaning provided in Section
21.01(b).
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"Purchase Option" means the purchase option described
in Article 21.
"Purchase Price" has the meaning provided in Section
21.01(a).
"Recognized Mortgage" has the meaning provided in
Section 11.02(b).
"Recognized Mortgagee" means the holder of a
Recognized Mortgage.
"Reimbursement Schedule" has the meaning provided in
Section 28.03(a).
"Rejection Notice" has the meaning provided in Section
34.02(b).
"Remaining Abatement Period" has the meaning provided
in Section 21.02(b).
"Remaining Improvements PILOT Period" has the meaning
provided in Section 3.05(b)(ii)(B).
"Remaining Land PILOT Period" has the meaning provided
in Section 3.05(b)(i)(B).
"Remaining Liability Portion" has the meaning provided
in Section 43.06(a).
"Rental" means Base Rent, Impositions, PILOT, College
Point Improvement Fund Payments, any amounts payable pursuant
to Article 20 or Section 36.02 and any other sums, costs or
expenses which Tenant is obligated, pursuant to any of the
provisions of this Lease, to pay.
"Requirements" has the meaning provided in Section
16.01.
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"Restoration" means either a Casualty Restoration or a
Condemnation Restoration, or both.
"Reviewable Features" has the meaning provided in
Section 13.01.
"Sales Tax Offset Limit" has the meaning provided in
Section 3.08.1(f).
"Sanitary Sewer" has the meaning provided in Section
27.01.
"Sanitary Sewer Default Date" has the meaning provided
in Section 27.03.
"Sanitary Sewer Easement" means the permanent
easement, approximately 30 feet wide, running along the portion
of the Premises fronting on the Whitestone Expressway Service
Road, more fully described in Exhibit E.
"Sanitary Sewer Offset Period" has the meaning
provided in Section 27.03.
"Sanitary Sewer Work" has the meaning provided in
Section 27.02.
"Scheduled Completion Date" has the meaning provided
in Section 13.01(b).
"Scheduled Sanitary Sewer Completion Date" has the
meaning provided in Section 27.02.
"Self-Help Notice" has the meaning provided in Section
12.04(a).
"Sewer Delay Offset Amount" has the meaning provided
in Section 27.04.
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"Sewer Delay Period" has the meaning provided in
Section 27.04.
"Sewer Drawings" has the meaning provided in Section
27.01.
"Sewer Offset Amount" has the meaning provided in
Section 27.03.
"Sewer Plans" has the meaning provided in Section
27.01.
"Sublease" means any sublease (including a
sub-sublease or any further level of subletting), occupancy,
license, franchise or concession agreement applicable to the
Premises or any part thereof.
"Subsequent Construction Work" means Construction Work
other than construction of the Initial Improvements.
"Substantial Completion Date" means the date on which
the Construction of the Initial Improvements shall have been
Substantially Completed, as certified by the Architect or
Engineer of Record in accordance with Section 13.01(b)(viii)
hereof.
"Substantial Completion" or "Substantially
Complete(d)" has the meaning provided in Section 13.01(b)(viii).
"Substantially All of the Premises" means (a) with
respect to a taking, such portion of the Premises as, when
taken, would leave a balance of the Premises that, due either
to the area so taken or the location of the part so taken in
relation to the part not so taken, would not, under zoning laws
and building regulations then existing, permit the Premises to
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be used as a Printing Facility to the same extent that the
Premises were used at the time of the taking including, without
limitation, adequate parking and other ancillary uses such as a
garage and (b) with respect to a casualty, such portion of the
Premises as, when damaged, would leave a balance of the
Premises that would not permit the Premises, in Tenant's
reasonable opinion, to be used as a Printing Facility in the
same manner and to the same extent that the Premises were used
at the time of the casualty including, without limitation,
adequate parking and other ancillary uses such as a garage.
With respect to any taking that would not be deemed a taking of
Substantially All of the Premises pursuant to clause (a) of the
immediately preceding sentence, at Tenant's sole election, to
be exercised by written notice to Landlord within one hundred
eighty (180) days after a taking, Substantially All of the
Premises shall be deemed to have been taken if the the portion
of the Premises, when taken, would leave a balance of the
Premises that, due either to the area so taken or the location
of the part so taken to the part not so taken, would not, under
zoning laws and building regulations then existing, permit the
Improvements existing at the time of the taking to be expanded
to a Printing Facility consisting of not less than 720,000
square feet of Gross Building Area and all facilities ancillary
thereto including, without limitation, adequate parking and a
garage.
"Subtenant" means any subtenant, operator, licensee,
franchisee, concessionaire or other occupant of the Premises or
any portion thereof under a Sublease.
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"Survey" means the survey of the Land performed by
Robert A. Haynes, dated August 28, 1990, incorporated herein by
reference.
"Tax Benefits" has the meaning provided in Section
3.05(d)(i).
"Taxes" has the meaning provided in Section 3.05(d)(i).
"Tax Year" has the meaning provided in Section
3.05(d)(v).
"Temporary Car Pound Relocation Site" has the meaning
provided in Section 12.04(a).
"Tenant" means the tenant under this Lease and, as of
the Lease Execution Date, the Tenant is EDC; provided, however,
that from and after the date of the contemplated assignment of
this Lease to The New York Times Company, the term "Tenant"
shall mean The New York Times Company and any successor to The
New York Times Company; and provided, further, that, from and
after such time as The New York Times Company or any successor
transfers or assigns this Lease, in accordance with this Lease,
the term "Tenant" shall mean the assignee or transferee. For
so long as the "Tenant" is The New York Times Company or any
successor thereto, the non-monetary obligations and covenants
set forth in this Lease as being the obligations or covenants
of "Tenant" shall apply only to and be performed by the
Division and the employees assigned to such Division, and
Landlord shall look solely to such Division for the performance
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of such non-monetary obligations and covenants; provided,
however, that any default by such Division in the performance
of such non-monetary obligations or covenants shall be treated
with the same force and effect pursuant to the applicable
provisions of this Lease as if such default had been committed
by "Tenant."
"Tenant Indemnitees" has the meaning provided in
Section 20.01A.
"Tenant Readiness Date" has the meaning provided in
Section 27.02.
"Tenant's Property" means all moveable partitions,
business and trade fixtures, business machinery and equipment,
communications and office equipment, tools, supplies, and spare
parts, whether or not attached to or built into the Premises,
which are installed in the Premises by Tenant or any Subtenant,
and all furniture, furnishings, and other moveable articles of
personal property owned by Tenant or any Subtenant.
Notwithstanding anything to the contrary set forth herein,
Tenant's Property shall include, without limitation, printing
presses and all other machinery and equipment used in the
process of printing, bundling, collating and distributing
newspapers, magazines and other printed materials.
"Term" has the meaning provided in Article 2.
"Title Matters" has the meaning provided in Article 2.
"Transfer" has the meaning provided in Section
10.01(b).
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"Transferee" has the meaning provided in Section
10.01(b).
"Unavoidable Delays" means delays caused by strikes,
slowdowns, walkouts, lockouts or other labor troubles; acts of
God; catastrophic weather conditions; inability to obtain labor
or materials due to labor disputes; court orders enjoining
commencement or continuation of Construction Work; enemy
action; civil commotion; shortage of fuel, supplies or labor
resulting from governmental declared priorities in connection
with a public emergency; failure or defect in the supply of
electricity, oil, gas or water to the Premises provided that
such failure or defect is not due to the action or inaction of
Tenant or any of its contractors or their subcontractors; fire,
casualty; the failure of the Lease Administrator to review,
comment on, approve, disapprove and/or inform the Buildings
Department of its approval of the Plans and Specifications
within the specified time periods, provided that such failure
is not a result of Tenant's failure to submit Plans and
Specifications in sufficient detail to permit Lease
Administrator to properly review such Plans and Specifications
or Tenant's failure to submit Plans and Specifications
appropriately modified to reflect Lease Administrator's
comments thereon, provided that such comments were submitted to
Tenant in writing in sufficient detail to make such
modifications; the failure of EDC to disburse any Funding under
-29-
Funding Agreement #1; and/or any other cause or causes not
within Tenant's control that are causing a delay in Tenant's
performance of its construction obligations hereunder. Tenant
shall make good faith efforts to notify the Lease Administrator
in writing, stating when such delay commenced, not later than
ten (10) Business Days after Tenant received knowledge of the
occurrence of any of the foregoing conditions; provided,
however, that Tenant's failure to so notify the Lease
Administrator as aforesaid shall not affect the commencement of
any Unavoidable Delay or otherwise result in any adverse
consequences to Tenant under this Lease; and provided, further,
that Tenant's financial condition or inability to obtain
financing shall not constitute an Unavoidable Delay.
"Urban Renewal Plan" means the Second Amended Urban
Renewal Plan for the College Point II Industrial Development
Project, dated February 1989, with (a) all amendments and
modifications thereto from time to time up to and including the
Lease Execution Date (but not subsequent to the Lease Execution
Date, except as set forth in clause (b) of this sentence) and
(b) any amendments or modifications thereto after the Lease
Execution Date with respect only to landscaping, compliance
with which would not require Tenant to incur a material cost.
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ARTICLE 2
DEMISE OF PREMISES AND TERM OF LEASE
Section 2.01. Demise of Premises; Term. Landlord does
hereby demise and lease to Tenant, and Tenant does hereby hire
and take from Landlord, the Premises, together with the
Improvements to be constructed thereon and all easements,
appurtenances and interests and other rights and privileges now
or hereafter belonging or appertaining to the Premises, subject
to the terms and conditions of this Lease, and subject also to
(a) the reservation of the Sanitary Sewer Easement as set forth
in Exhibit E and (b) those matters affecting title set forth in
Exhibit G (the "Title Matters"), for a term (the "Term")
commencing on the Possessory Date and expiring on the
Expiration Date, as such Term may be extended pursuant to the
provisions of Section 21.02 hereof.
Section 2.02. Pre-Possessory Date Access and Use.
Notwithstanding anything to the contrary contained
herein, Tenant, from and after the date hereof, shall have a
right of access to the entire Premises, subject to the terms
and conditions hereinafter set forth in this Section 2.02, for
the performance of Preliminary Site Work including, without
limitation, the driving of test pilings, and such Construction
Work in connection with the Construction of the Project that
Tenant may be able to perform in light of the restrictions
contained in this Section 2.02. Attached hereto as Exhibit I
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and made a part hereof is a plan of the Land divided into
three (3) parcels denominated as Parcel A, Parcel B, and Parcel
C. As of the date hereof, the Car Pound occupies Parcel C
only. Tenant's access to and use of Parcel A, Parcel B, and
Parcel C shall be restricted as follows during the following
time periods:
(a) During the period commencing on the date
hereof and ending on the Possessory Date, Tenant shall have the
right to consruct a fence around Parcel A with such opening or
openings to a street or streets that Tenant may deem necessary
in order to obtain access to and use Parcel A for the purposes
permitted by this Section 2.02, and Tenant shall have access
to, and the sole and exclusive use of Parcel A, for the
performance of Preliminary Site Work and Construction Work in
connection with the Construction of the Project;
(b) During the period commencing on the date
hereof and expiring on the Possessory Date, Tenant shall not
have access to Parcel C, except to the extent that such access
may be granted by the New York City Police Department to
perform test soil borings and surveys ("Permitted Testing") or
such other Preliminary Site work that the New York City Police
Department may permit; and
(c) During the period commencing on (x) the date
hereof, and expiring on (y) the Possessory Date, Tenant shall
have access to Parcel B for the purposes of: (l) erecting one
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or more temporary structures and maintaining vehicles or other
equipment thereon, (2) carving out an opening in the existing
fence (fronting on Linden Boulevard) so as to provide vehicular
access to Parcel B, (3) filling and/or paving Parcel B and (4)
erecting such fence or fences, if any, that Tenant may deem
appropriate to secure its structures and equipment.
Tenant's access to and use of portions of the Premises
prior to the Possessory Date shall be upon all of the terms and
conditions of this Lease, except for such terms which by their
nature are inapplicable to periods prior to the Possessory Date
(e.g., the obligation to pay Rental).
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ARTICLE 3
RENTAL
Section 3.01. Method and Place of Payment. Except as
otherwise specifically provided herein, all Rental shall be
paid without setoff or deduction and without prior notice or
demand. All Rental payable to Landlord (except PILOT, which is
payable in accordance with Section 3.05, Public Purpose
Payments, if any, which are payable pursuant to Section 36.02,
and Impositions, if the rules and regulations of the City
governing such payment are to the contrary) shall be paid by
good checks payable to the order of Landlord and drawn on a
bank which is either (i) a bank in the top one hundred (100)
banks in the United States in total assets, (ii) a U.S. money
center bank or (iii) a bank that is a member of the New York
Clearing House Association (or any successor body of similar
function), mailed or delivered to Landlord c/o New York City
Economic Development Corporation, 110 William Street, New York,
New York, 10038, Attention: Lease Administration, or at such
other place as Landlord shall direct by notice to Tenant.
Impositions shall be payable in the form and to the location
provided by rules and regulations governing the payment of such
as if Tenant owned the Premises.
Section 3.02. Base Rent. Tenant shall pay Landlord
base rent ("Base Rent") during the Term as follows:
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(a) if the Construction Commencement Date occurs
on or prior to the fourth (4th) anniversary of the Lease
Execution Date (the "4th Anniversary Date"):
(i) for the period commencing with the
Possessory Date and continuing until the third (3rd)
anniversary of the Construction Commencement Date,
Base Rent will be at an annual rate of $1.00 (Landlord
hereby acknowledges receipt of $7.00 as advance
payment on account of such Base Rent); and
(ii) from the day after the third (3rd)
anniversary of the Construction Commencement Date, and
for each Lease Year thereafter during the Term, Base
Rent shall be at the annual rate of five hundred
fifty-two thousand dollars ($552,000).
(b) if the Construction Commencement Date shall
not have occurred on or prior to the 4th Anniversary Date, Base
Rent for the period commencing with the Possessory Date and
ending on the Expiration Date shall be at the annual rate of
five hundred fifty-two thousand dollars ($552,000).
(c) Payment of Base Rent.
(i) Period. Base Rent shall be paid in
monthly installments, the first monthly installment payable in
advance on the Possessory Date for the calendar month or
portion thereof in which it falls due and on the first day of
each calendar month thereafter.
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(ii) Prorations of Base Rent. Base Rent
which is due for any period of less than a full calendar month
shall be appropriately apportioned on a 365- or 366-day basis.
Section 3.03. [Intentionally Omitted]
Section 3.04. [Intentionally Omitted]
Section 3.05. Payments in Lieu of Taxes.
(a) Tenant's Obligation to Pay PILOT. For each
Tax Year or portion thereof within the Term, Tenant shall pay
as Rental (and not as a tax) to Landlord, c/o City Collector,
Department of Finance, Bureau of Central Real Estate, 25 Elm
Place, Brooklyn, New York 11201 (or such other address of which
the Landlord shall give Tenant notice), in accordance with
notice of the amount due and payable, an annual sum (each such
sum being hereinafter referred to as a "PILOT") in the
aggregate amounts and in the manner determined as provided in
Section 3.05(b)
(b) Amount of PILOT. PILOT shall be payable in
the following amounts:
(i) Land PILOT. Tenant shall make payments
in lieu of real estate taxes on the Land (the "Land PILOT") for
each Fiscal Year or portion thereof included within any period
(apportioned, on a 365- or 366-day basis, as appropriate, for
any part of a Fiscal Year) during the Term, payable in arrears
in equal semi-annual installments within ten (10) days after
the receipt of a notice from Lease Administrator, as follows:
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(A) for the period (the "Initial Land PILOT
Period") commencing with the Possessory Date and
continuing until the date (the "Initial Land PILOT
Period Termination Date") which shall be the earlier of
(1) the Substantial Completion Date or
(2) (x) if the Possessory Date occurs on or
prior to the 4th Anniversary Date, the sixth
(6th) anniversary of the Lease Execution Date or
(y) if the Possessory Date occurs after
the 4th Anniversary Date, the second (2nd)
anniversary of the Possessory Date,
Land PILOT for each Fiscal Year within such
period will be in an amount equal to
(I) the lesser of (x) $299,480 ("Fixed
Land PILOT") or (y) Land Taxes for the Fiscal Year
less
(II) $100,000;
(B) for the period (the "Remaining Land
PILOT Period") commencing with the day after the
Initial Land PILOT Period Termination Date and
continuing until the end of the Term, Land PILOT for
each Fiscal Year within such period will be in an
amount equal to
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(I) the lesser of
(aa) Land Taxes for the Fiscal Year, or
(bb) Fixed Land PILOT, increased as of
the beginning of the first full Fiscal Year
of the Remaining Land PILOT Period, and as
of the beginning of every Fiscal Year
thereafter, by four percent (4%) of the
amount paid as Land PILOT with respect to
the prior Fiscal Year or portion thereof,
less
(II)(aa) (if the Initial Land PILOT
Period Termination Date shall have occurred
on or prior to the Substantial Completion
Date), $100,000 per annum for the period
commencing on the day after the Initial Land
PILOT Period Termination Date and ending on
the Substantial Completion Date, and (bb)
$200,000 per annum for the period commencing
on the day after the Substantial Completion
Date and ending on the date that is the 20th
anniversary of the Possessory Date.
(C) In no event will Tenant be obligated to
pay more under the foregoing provisions of this
Section 3.05(b)(i) than Maximum Land PILOT.
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(ii) Improvements PILOT. Tenant shall make
payments in lieu of real estate taxes on the Improvements (the
"Improvements PILOT") for each Tax Year (appropriately
apportioned on a 365- or 366-day basis for any period of less
than a full Tax Year) during the Term, payable in arrears in
equal semi-annual installments within ten (10) days after the
receipt of a notice from Lease Administrator, as follows
(subject to abatement as provided in clause (C) below):
(A) for the period (the "Initial
Improvements PILOT Period") commencing with the
Construction Commencement Date and continuing until
the date (the "Full Assessment Date") on which the
Initial Improvements have been fully assessed by the
Finance Department for taxing purposes, the
Improvements PILOT for each Tax Year included within
such period will be an amount equal to $110.00 (the
"Fixed Improvements Value") multiplied by (1) the
actual total square footage of Gross Building Area
completed as of the time of the assessment for each
Tax Year; (2) forty-five percent (45%); and (3) the
fixed tax rate of 10.698%;
(B) for the period (the "Remaining
Improvements PILOT Period") commencing with the day
after the Full Assessment Date and continuing until
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the end of the Term, the Improvements PILOT for each
Tax Year within such period will be in an amount equal
to the following:
(1) with respect to Improvements
(exclusive of Expansion Improvements) completed
on or prior to the Full Assessment Date, the
lesser of
(a) Improvements Taxes for such Tax
Year (exclusive of Improvement Taxes
attributable to Expansion Improvements), or
(b) an amount equal to the Fixed
Improvements Value decreasing, at the rate
of one percent (1%) per annum (with the
first one percent (1%) decrease to take
effect on the first anniversary of the Full
Assessment Date), multiplied by (x) the
actual total square footage of Gross
Building Area of such Improvements, (y)
forty-five percent (45%), and (z) the fixed
tax rate of 10.698%;
(2) with respect to any Improvements
completed after the Full Assessment Date that add
square footage of Gross Building Area, including
without limitation, expansions or modifications
to existing Improvements (each such Improvement
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hereinafter individually referred to as an
"Expansion Improvement"), the lesser of
(a) Improvements Taxes for such Tax
Year attributable to such Expansion
Improvement, or
(b) an amount equal to the Fixed
Improvements Value increasing at the rate of
three percent (3%) of the Fixed Improvements
Value per annum from the Full Assessment
Date until the date on which the Expansion
Improvement being assessed was substantially
completed, and decreasing thereafter at the
rate of one percent (1%) of the Fixed
Improvements Value (as increased by such
three percent (3%) per annum increases) per
annum (with the first such one percent (1%)
decrease to take effect on the first
anniverary of the substantial completion of
the Expansion Improvement), multiplied by
(x) the actual total square footage of Gross
Building Area of the Expansion Improvement
constructed that adds square footage of
Gross Building Area, (y) forty-five percent
(45%), and (z) the fixed tax rate of 10.698%;
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(3) with respect to any Improvements
completed after the Full Assessment Date that do
not add square footage of Gross Building Area, an
amount equal to zero.
The amount of Improvements PILOT (exclusive of
Improvements PILOT attributable to Expansion
Improvements) for any Tax Year, computed pursuant to
the foregoing paragraphs of this Section
3.05(b)(ii)(B) as of the beginning of such Tax Year,
is hereinafter referred to as the "Normal Improvements
PILOT" for such Tax Year. The amount of Improvements
PILOT attributable to an Expansion Improvement for any
Tax Year, computed pursuant to the foregoing
paragraphs of this Section 3.05(b)(ii)(B) as of the
beginning of such Tax Year, is hereinafter referred to
as the "Normal Expansion Improvements PILOT" for such
Tax Year.
(C) Abatement of Improvements PILOT.
(i) The Improvements PILOT computed in accordance with
Section 3.05(b) with respect to Improvements completed
on or prior to the Full Assessment Date shall be
subject to the following abatements from and after the
Construction Commencement Date: for the first fifteen
(15) Tax Years after the Construction Commencement
Date, Tenant shall be exempt from Improvements PILOT
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in an amount equal to one hundred percent (100%) of
Normal Improvements PILOT for each such Tax Year or
portion thereof; for the following nine (9) Tax Years
thereafter (i.e., from Tax Year 16 through and
including Tax Year 24), Tenant shall be exempt from
Improvements PILOT in an amount equal to the following
percentages of Normal Improvements PILOT determined in
Tax Year 15 ("15th Year Normal Improvements PILOT"):
90% thereof in Tax Year 16, decreasing by 10% of 15th
Year Normal Improvements PILOT each Tax Year
thereafter; and for Tax Year 25, Tenant shall be
exempt from Improvements PILOT in an amount equal to
10% of 15th Year Normal Improvements PILOT. The
computation of the abatements described above are
illustrated as follows:
Tax Years Exemption
1 - 15 100% of the Normal Improvements PILOT for
such Tax Year
16 90% of 15th Year Normal Improvements PILOT
17 80% of 15th Year Normal Improvements PILOT
18 70% of 15th Year Normal Improvements PILOT
19 60% of 15th Year Normal Improvements PILOT
20 50% of 15th Year Normal Improvements PILOT
21 40% of 15th Year Normal Improvements PILOT
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22 30% of 15th Year Normal Improvements PILOT
23 20% of 15th Year Normal Improvements PILOT
24 10% of 15th Year Normal Improvements PILOT
25 10% of 15th Year Normal Improvements PILOT
(ii) The Improvements PILOT computed in
accordance with Section 3.05(b) with respect to an Expansion
Improvement shall be subject to the following abatements (which
abatements shall be available after the expiration or earlier
termination of this Lease only if Tenant shall have applied for
and qualified for same pursuant to the provisions of Section
3.11 hereof or otherwise) from and after the date on which
Tenant commences construction of such Expansion Improvement
(the "Expansion Construction Commencement Date"): for the
first fifteen (15) Tax Years after the Expansion Construction
Commencement Date, Tenant shall be exempt from Improvements
PILOT in an amount equal to one hundred percent (100%) of
Normal Expansion Improvements PILOT for each such Tax Year or
portion thereof; for the following nine (9) Tax Years
thereafter (i.e., from the sixteenth (16th) through and
including the twenty-fourth (24th) Tax Year after the Expansion
Construction Commencement Date), Tenant shall be exempt from
Improvements PILOT in an amount equal to the following
percentages of Normal Expansion Improvements PILOT determined
in the fifteenth (15th) Tax Year following the Expansion
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Construction Commencement Date ("15th Year Expansion Normal
Improvements PILOT"): 90% thereof in the 16th Tax Year
following the Expansion Construction Commencement Date,
decreasing by 10% of 15th Year Normal Expansion Improvements
PILOT each Tax Year thereafter; and for the 25th Tax Year after
the Expansion Construction Commencement Date, Tenant shall be
exempt from Improvements PILOT in an amount equal to 10% of
15th Year Normal Expansion Improvements PILOT.
(D) In no event will Tenant be obligated to
pay more under the foregoing provisions of this
Section 3.05(b)(ii) than Maximum Improvements PILOT.
(c) Effect of Abandonment of Project. Notwithstanding
the foregoing provisions of this Section 3.05, from and after
Abandonment of the Project, PILOT shall be equal to Taxes.
(d) Definitions.
(i) "Taxes" means the real property taxes
determined with respect to the assessed value of the Premises
pursuant to the provisions of the New York State Real Property
Tax Law, Chapter 58 of the Charter of the City of New York and
Title 11, Chapters 2, 3 and 4 of the Administrative Code of the
City of New York, as the same may now exist or hereafter be
amended, or any successor provision, statute or ordinance
(whether or not the Premises are actually exempt by law from
such real property taxation, assessment, levy or payment for
the Tax Year in question), subject to the provisions of Section
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35.01. Notwithstanding anything to the contrary contained
herein, for the sole purpose of computing the amounts of PILOT
payable pursuant to the terms of this Lease (e.g., if PILOT
shall be equal to Taxes due to an Abandonment of the Project or
if Taxes are lower than the amounts of PILOT that would
otherwise be payable pursuant to the terms of this Lease),
Taxes shall be computed taking into account any and all tax
benefits, exemptions, abatements, deferments or reductions that
Tenant would be entitled to if Tenant were the owner, rather
than the lessee, of the Property including, without limitation,
the benefits of the Industrial and Commercial Incentive Program
(together, the "Tax Benefits"), with the same force and effect
as if Tenant had timely filed any necessary applications or
taken any necessary administrative steps to obtain such Tax
Benefits, without regard to whether Tenant actually did so.
(ii) "Land Taxes" means the portion of Taxes
attributable to the Land.
(iii) "Improvements Taxes" means the portion
of Taxes attributable to the Improvements.
(iv) "Fiscal Year" means any 12 month period
falling within the term of the Lease, commencing on July 1 of
any calendar year and ending on June 30 of the following
calendar year.
(v) "Tax Year" means a full City Fiscal
Year except that the period of time from the Construction
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Commencement Date to the first day of the first full City
Fiscal Year occurring thereafter shall be deemed to be a Tax
Year if it is longer than six (6) months and, if it is shorter
than six (6) months, such period shall be deemed to be part of
such next occurring Tax Year.
Section 3.06. Offset for Funding Default. Pursuant
to Section 4.01(a) hereof, if EDC shall be in default in its
obligations to disburse to Tenant any Funding in accordance
with the terms and conditions of Funding Agreement #1, Funding
Agreement #2, Funding Agreement #3 or Funding Agreement #4, and
such default shall not have been cured by EDC within thirty
(30) days after notice from Tenant, Tenant may (unless and
until there has been an Abandonment of the Project) offset the
amount of such defaulted Funding against future installments of
Rental (excluding Impositions, but including College Point
Improvement Fund Payments) until such time as the aggregate
amount of such offsets equals the aggregate amount of defaulted
Funding.
Section 3.07. [Intentionally Omitted].
Section 3.08. Exemption From Certain Taxes.
Section 3.08.1. Exempt Taxes. Subject to the
provisions of Article 28 hereof, Landlord warrants and
represents that Tenant shall not be required to pay, and
Landlord hereby agrees to indemnify, defend and hold Tenant
harmless from and against, any and all of the following taxes,
assessments, levies, fees, charges, payments or amounts with
respect to the Premises or the operation thereof (other than
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PILOT, College Point Improvement Fund Payments and payments to
a BID pursuant to the provisions of Section 3.09(c) hereof),
whether or not any taxing authority has determined that Tenant
is legally or administratively entitled to an exemption from
any such amounts (the "Exempt Taxes"):
(a) Taxes;
(b) any new or additional real estate tax or
franchise, income, transit, profit, "gains", "value added" or
other tax or governmental imposition imposed by reason of the
ownership or occupancy of the Property, however designated,
that may be imposed or levied as a substitution in whole or in
part for, or in lieu of, or in addition to, any tax which would
constitute Taxes, excluding, however, any such new or
additional tax imposed or levied by New York State (and not by
the City) for the benefit of New York State (and not for the
City) from which the City lacks the legal authority to exempt
the Property;
(c) (i) assessments and special assessments imposed
by reason of the ownership or occupancy of the Property,
excluding, however, any such assessments or special assessments
imposed or levied by New York State (and not by the City) for
the benefit of New York State (and not for the City) from which
the City lacks the legal authority to exempt the Property, and
(ii) amounts that constitute Exempt Taxes
pursuant to the provisions of Section 3.09(c)(iii) hereof;
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(d) for so long as there has been no Abandonment of
the Project, the New York City Commercial Rent or Occupancy Tax
or any similar or successor tax, or any tax (including, without
limitation, any tax on personal property) levied at any time by
the City as a substitution in whole or in part for, or in lieu
of, or in addition to, such a tax;
(e) with respect to materials, fixtures and Equipment
purchased and incorporated into the Improvements, New York City
sales and compensating use taxes, or any tax imposed at any
time by the City as a substitution in whole or in part for, or
in lieu of, or in addition to, such taxes;
(f) with respect to machinery and equipment
(including, without limitation, printing presses) utilized in
connection with the production of newspapers and magazines or
other periodicals or printed materials (but not the
installation, maintenance and repair of such machinery and
equipment), New York City sales and compensating use taxes;
provided, however, that if in the future the City imposes a
sales and compensating use tax on such machinery or equipment,
such taxes shall nevertheless remain Exempt Taxes, but only (i)
if such taxes are imposed in connection with the initial
equipping of the Minimum Printing Facility, the Five Press
Facility, the Six Press Facility, the Seven Press Facility
and/or the Eight Press Facility (as such terms are defined in
Funding Agreement #1), respectively, and (ii) up to the Sales
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Tax Offset Limit. For purposes only of this Section 3.08.1(f),
the "Sales Tax Offset Limit" shall mean an amount of such taxes
equal to: (i) with respect to machinery and equipment utilized
in the Minimum Printing Facility, an amount equal to
$7,437,500.00, (ii) with respect to machinery and equipment
utilized in that portion of the Five Press Facility which is in
addition to the Minimum Printing Facility, an amount equal to
$1,859,375.00, (iii) with respect to machinery and equipment
utilized in that portion of the Six Press Facility which is in
addition to the Five Press Facility, an amount equal to
$1,965,625.00, (iv) with respect to machinery and equipment
utilized in that portion of the Seven Press Facility which is
in addition to the Six Press Facility, an amount equal to
$1,753,125.00, and (v) with respect to machinery and equipment
utilized in that portion of the Eight Press Facility which is
in addition to the Seven Press Facility, an amount equal to
$1,859,375.00;
(g) to the extent imposed in connection with (x) the
execution, structure and/or performance of this Lease, (y) the
assignment of this Lease from EDC to The New York Times Company
or (z) the transfer of the Property to Tenant pursuant to its
Purchase Option set forth in Article 21 hereof:
(1) the New York City Real Property Transfer Tax;
(2) the New York State Real Estate Transfer Tax;
(3) the New York State Real Property Transfer
Gains Tax;
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(4) the New York State or City Mortgage
Recording Tax; or
(5) any tax or imposition levied at any time by
any Governmental Authority as a substitution
in whole or in part for,
or in lieu of, or in addition to,
the taxes described in subsections (1)
through (4) of this Section 3.08.1(g); and
(h) any interest, penalties, or additions to the tax
imposed with respect or relating to any of the taxes or charges
enumerated in the foregoing Sections 3.08.1(a) through
3.08.1(g), any other amounts imposed on, assessed against or
incurred by Tenant with respect or relating to, or based upon,
any of such taxes or charges, and any amounts, charges,
liabilities or expenses incurred by Tenant in contesting the
imposition or assessment of any of such taxes, charges or other
amounts.
Section 3.08.2. Procedures.
(a) Landlord, at no cost to Tenant, shall cooperate
with Tenant's efforts to establish Tenant's entitlement to
exemption from Exempt Taxes imposed or administered by any
Governmental Authority (including, without limitation, the
City), and with Tenant's instituting, defending and prosecuting
any applications, audits, contests, or administrative or
judicial proceedings necessary to establish Tenant's
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entitlement to such exemption. Notwithstanding anything to the
contrary contained herein, Tenant shall notify Landlord in
writing if Tenant does not intend to institute or prosecute any
claim of exemption, contest or appeal or initiate or prosecute
any administrative or judicial proceedings to establish such
exemption because Tenant believes in good faith, for reasons
such as a change in law or taxing policy or otherwise, that
such exemption will not be upheld notwithstanding that the
taxes in question fall within the meaning of Exempt Taxes, in
which event Tenant shall have no obligation to institute or
prosecute any such claim of exemption, contest, appeal or
administrative or judicial proceeding unless Landlord directs
Tenant in writing to do so (and states the grounds on which the
exemption may be claimed) within thirty (30) days after its
receipt of Tenant's written notice, it being understood and
agreed that (i) any costs incurred in connection therewith by
Tenant shall constitute Exempt Taxes pursuant to Section
3.08.1(h) hereof and (ii) in either event, if any such Exempt
Taxes are paid by Tenant, then Tenant shall have the right of
offset set forth in Section 4.01(e) hereof and/or its right
pursuant to Section 4.03 hereof, as the case may be.
(b) With respect to the Exempt Taxes described in
Section 3.08.1(g) hereof, Landlord and Tenant shall comply with
all procedural and return filing requirements applicable in
connection with the execution, commencement and performance of
this Lease, the assignment of this Lease from EDC to The New
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York Times Company or the transfer of the Property to Tenant
pursuant to its Purchase Option set forth in Article 21
hereof.
(c) If any Exempt Taxes are asserted by any
Governmental Authority (including the City) to be payable by
Tenant, Tenant shall pay the same as and when due and payable,
subject to Tenant's right pursuant to Section 4.01(e) hereof to
an offset against Rental (other than Impositions or College
Point Improvement Fund Payments) in an amount equal to such
Exempt Taxes with interest thereon at the Prime Rate from the
date paid through the date of offset against Rental and/or its
right pursuant to Section 4.03 hereof, as the case may be.
Notwithstanding anything to the contrary contained herein, with
respect to the transfer of the Property to Tenant pursuant to
its Purchase Option set forth in Article 21 hereof, Landlord
shall pay the taxes described in Section 3.08.1(g) hereof, as
applicable, to the appropriate taxing authority on the date of
execution and delivery by Landlord to Tenant of the deed to the
Property, except as otherwise provided in Section 7.1.1 of the
Purchase Agreement, unless prior thereto Tenant has been
furnished by Landlord with a written determination of the
appropriate taxing authority that such tax is not payable or
that Tenant is exempt from such tax with respect to the
transaction involved.
(d) The provisions of Section 3.08.3 below shall
supercede the provisions of Sections 3.08.2(a) and (c) hereof
with respect to Exempt Taxes imposed or asserted subsequent to
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the expiration or termination of this Lease or subsequent to
the transfer of the Property to Tenant pursuant to its Purchase
Option set forth in Article 21 hereof.
Section 3.08.3. Exempt Taxes Imposed After Lease
Expiration or Termination. In the event that at any time after
the expiration or termination of this Lease, or subsequent to
the transfer of the Property to Tenant pursuant to its Purchase
Option set forth in Article 21 hereof (including as a result of
a post-transfer audit), any Exempt Taxes shall be imposed upon
or asserted to be payable by Tenant (including The New York
Times Company and/or any successor or successors-in-interest to
the rights of Tenant under this Lease) with respect to (i) the
Premises for any period of time prior to such expiration or
termination, (ii) the execution or performance of this Lease,
(iii) the assignment of this Lease from EDC to The New York
Times Company, or (iv) in connection with the transfer of the
Property to Tenant pursuant to such Purchase Option, then
Tenant shall inform Landlord thereof in writing prior to the
date by which Tenant might be subject to any penalty,
collection proceeding or other adverse consequence for failure
to pay such Exempt Taxes and, if requested by Landlord in
writing, shall refrain from paying such Exempt Taxes for so
long as Tenant may do so without penalty or adverse
consequences (including, without limitation, collection
proceedings) during which period Landlord shall attempt to
reverse the imposition of such Exempt Taxes, and if Landlord
fails to do so before Tenant is required to pay such Exempt
Taxes, Landlord shall pay to Tenant (and/or such successor or
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successors-in-interest, as the case may be) the amount of such
Exempt Taxes within ninety (90) days after Landlord's receipt
of a notice from Tenant (including The New York Times Company
and/or any successor or successors-in-interest to the rights of
Tenant under this Lease) accompanied by proof of payment of
such Exempt Taxes.
Section 3.08.4. Survival. This Section 3.08 shall
survive the assignment of this Lease from EDC to The New York
Times Company, any further assignment of this Lease by Tenant
pursuant to the terms hereof, the expiration or termination of
this Lease, and any transfer of the Property to Tenant pursuant
to such Purchase Option.
Section 3.09. Impositions and College Point
Improvement Fund Payments.
(a) Obligation to Pay. Tenant shall pay Impositions
and College Point Improvement Fund Payments.
(b) Definitions.
(i) "Imposition" or "Impositions" means water
meter rates and charges and any other governmental
charges (other than Taxes and Exempt Taxes) which at
any time during the Term are charged with respect to
the Premises which, if not paid, would (but for the
City's ownership of the Premises) be or become a lien
or other encumbrance on the Premises or any part
thereof.
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(ii) "College Point Improvement Fund" or
"Fund" means a separate fund consisting of sums paid
to EDC by Tenant and other owners and occupants of
similarly burdened property in the College Point
Industrial Park, to be used by EDC solely for the
construction, maintenance and improvement of (1)
roads, sewers, drainage systems, buffer strips,
utilities and sidewalks within College Point
Industrial Park, and (2) other facilities of general
benefit to College Point Industrial Park or portions
thereof as determined by EDC in its discretion.
(iii) "College Point Improvement Fund
Payments" means payments due on the first days of
January, April, July and October, commencing on the
first of such days to occur after the fourth (4th)
anniversary of the Possessory Date in an amount equal
to one-eighth of one percent (0.125%) of the assessed
value of the Land and Improvements, as such assessed
value is determined by the Finance Department for
Taxes, without regard to whether the City is Landlord;
provided, however, that for purposes hereof, in no
event shall (a) the assessed value of the Land be
deemed to exceed $2,799,401 (increased by four percent
(4%) per annum beginning with the first full Fiscal
Year of the Remaining Land PILOT Period) or (b) the
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assessed value of the Improvements be deemed to exceed
the assessed value used for each respective Tax Year
to compute the Maximum Improvements PILOT.
(c) Provisions Applicable to College Point Improvement
Fund Payments.
(i) All College Point Improvement Fund
Payments shall be made by Tenant to EDC.
(ii) Tenant's obligation to make College
Point Improvement Fund Payments during the Term shall
be enforceable by EDC, or its successor or assign or
designee. If there shall be established within
College Point Industrial Park, or any portion thereof,
a Business Improvement District ("BID") pursuant to
Article 2-B of the General City Law or any successor
statute thereto, then, if the Premises are included
within such BID and charges or assessments with regard
to the BID must be or are paid in connection with the
Premises in an amount in the aggregate less than,
equal to or greater than the amount that would be
payable by Tenant to EDC or its successor or assign or
designee for the Fund in connection with the Premises,
then (x) Tenant shall, subject to the provisions of
Section 3.09(c)(iii) below, pay such charges or
assessments and (y) Tenant shall be relieved and
discharged from any obligation to make any further
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College Point Improvement Fund Payments with respect
to any period from and after the date to which
Tenant's first payment to such BID is applicable, and
EDC shall promptly refund to Tenant any portion of any
College Point Improvement Fund Payments made by Tenant
which were applicable to any period beyond such date.
If the funds received by the BID in connection with
the Premises and other properties in such BID (the
"Burdened Properties"), in EDC's or its successor's or
assign's or designee's reasonable determination, are
devoted to similar purposes as those to which the Fund
is devoted, then the district management association
formed in connection with such BID shall succeed to
EDC's or its successor or assign's or designee's
functions in connection with the Fund with regard to
the area in such BID, and EDC or its successor or
assign or designee shall transfer moneys within the
Fund on hand and attributable to the properties
included within such BID to such district management
association.
(iii) Landlord hereby assigns to Tenant,
effective as of the date hereof, all of its authority
and right, as landowner, to attend hearings and
meetings and to vote in connection with the formation
of any BID affecting the Property and participate in
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the decision-making of such BID, and Landlord shall
execute and deliver any documents required by such BID
or otherwise to evidence such assignment. In the
event that either (x) Landlord shall fail to take such
steps as may be required of it to transfer to Tenant
all of Landlord's authority and right to vote and
participate in connection with a BID to the full
extent set forth in the immediately preceding sentence
or (y) a BID is formed without Tenant's participation
as a result of Landlord's failure to take the steps
required by subclause (x) above before the formation
of any such BID or Landlord's failure to forward to
Tenant any notice in connection therewith forwarded to
Landlord rather than to Tenant, and Tenant is required
to make payments thereto in excess of the amounts that
would be payable by Tenant to the Fund, then all
amounts payable with respect to such BID with respect
to the Property shall constitute Exempt Taxes.
(d) Apportionment. Any Imposition or College Point
Improvement Fund Payment payable with respect to a period part
of which is included within the Term and a part of which
precedes the Possessory Date or follows the Expiration Date,
shall be appropriately apportioned on the basis of a 365- or
366-day year.
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Section 3.10. Single Tax Lot. Promptly following the
execution of this Lease, Landlord and Tenant, at no cost to
Tenant, shall cause the Premises to be identified by a single
Block and Lot Number on the Tax Map of the Borough of Queens,
County of Queens, City and State of New York. The Premises
have been tentatively assigned new tentative block and lot
numbers Block 4282, Lot 100 for future identification.
Section 3.11. Tax Benefits Applications. Landlord and
Tenant acknowledge that it may be necessary for Tenant to file
for Tax Benefits during the Term to preserve Tenant's
entitlement to such Tax Benefits after the expiration or early
termination of this Lease. In furtherance thereof, Landlord
will cooperate in any manner reasonably requested by Tenant
(including, without limitation, the execution and delivery of
applications and other documents) to enable Tenant to qualify
for or obtain and thereafter keep in full force and effect the
maximum Tax Benefits available to Tenant at any time during the
Term. During the Term, Landlord shall comply in a timely
manner with any rules and regulations that may be necessary to
preserve the maximum Tax Benefits for the benefit of Tenant, as
the same shall apply to Landlord. Nothing contained herein
shall be construed as imposing any obligation on Tenant to file
for any Tax Benefits and, during the Term, for purposes of
computing PILOT payable under this Lease, Tenant shall be
deemed to have filed for and obtained and maintained the
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maximum Tax Benefits available to it, as more particularly set
forth in Section 3.05(d)(i) hereof. The provisions of this
Section 3.11 are intended to apply to the City only in its
capacity as Landlord and not in its municipal capacity.
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ARTICLE 4
OFFSETS AGAINST RENTAL
Section 4.01. Offsets Against Rental. Subject to the
provisions of this Article 4, Tenant shall have the right to
offset against installments of Rental (exclusive of Impositions
or College Point Improvement Fund Payments; provided, however,
that Tenant shall have a right of offset against College Point
Improvement Fund Payments with respect to the amount set forth
in Section 4.01(a) below) coming due under this Lease, any and
all of the following amounts (the "Offset Amounts"):
(a) an amount equal to that portion of the
Funding, if any, which EDC fails to pay to Tenant in accordance
with the provisions of Funding Agreement #1, Funding
Agreement #2 , Funding Agreement #3 and/or Funding Agreement #4;
(b) an amount equal to any amounts other than
the Funding owed to Tenant by EDC pursuant to the provisions of
Funding Agreement #1, Funding Agreement #2, Funding Agreement
#3 or Funding Agreement #4, but not paid;
(c) an amount equal to the Car Pound Offset
Amount, computed in accordance with the provisions of Article
12 hereof;
(d) an amount equal to the Sewer Offset Amount
or the Sewer Delay Offset Amount, computed in accordance with
the provisions of Article 27 hereof;
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(e) an amount equal to any Exempt Taxes paid by
Tenant, with interest thereon at the Prime Rate from the date
paid through the date of offset against Rental;
(f) an amount equal to the Plans and
Specifications Offset Amount, computed in accordance with the
provisions of Section 13.01(c) hereof;
(g) an amount equal to the PILOT Refund Amount,
with interest, computed in accordance with the provisions of
Section 35.01(c) hereof;
(h) [Intentionally Omitted]
(i) [Intentionally Omitted]
(j) [Intentionally Omitted]
(k) an amount equal to any amount owed to Tenant
by Landlord pursuant to the provisions of this Lease;
(l) an amount equal to the amount of any
judgment obtained by Tenant against the City, EDC or Landlord
in connection with this Lease or Funding Agreement #1, Funding
Agreement #2, Funding Agreement #3 or Funding Agreement #4;
(m) an amount equal to the Offset Portion; and
(n) an amount equal to any other amount
permitted to be offset against Rental pursuant to any provision
of this Lease.
Section 4.02. Notice of Offset. Tenant shall give
Landlord at least thirty (30) days' prior written notice (an
"Offset Notice") of its intention to offset any Offset Amounts
against Rental.
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Section 4.03. Inability to Take Full Amount of Offset.
In the event that Tenant exercises its option to purchase the
Property pursuant to Article 21 hereof, the Purchase Price
shall be reduced by any amounts that Tenant is entitled to
offset against Rental pursuant to the provisions of this Lease,
which amounts have not been so offset as of the date on which
transfer of title to the Property to Tenant is accomplished,
and if such amounts shall reduce the Purchase Price below zero,
the amount by which such amounts exceed the Purchase Price
shall be due and payable by Landlord to Tenant within
forty-five (45) days after the transfer of title to Tenant. In
the event that this Lease is terminated for any reason other
than the exercise by Tenant of its option to purchase the
Property prior to the date on which Tenant has offset against
Rental the full amount that it is entitled to so offset,
Landlord shall immediately pay to Tenant that portion of the
amount that Tenant was unable to offset against Rental prior to
such Lease termination. Notwithstanding anything to the
contrary contained herein, the termination of this Lease shall
not be delayed by the pendency of any dispute regarding the
amounts that Tenant is entitled to offset against Rental.
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ARTICLE 5
PROHIBITION AGAINST LANDLORD TRANSFERS AND ENCUMBRANCES
Section 5.01. Prohibited Encumbrances. Landlord shall
not place or permit to be placed on or with respect to the
Premises any liens, charges, easements, agreements of record,
encumbrances or other objections to title ("Prohibited
Encumbrances") other than Permitted Encumbrances (as such term
is defined in the Purchase Agreement). In the event that any
Prohibited Encumbrances shall be placed on or with respect to
the Premises, Landlord, at Landlord's sole cost and expense,
shall promptly take all such actions as may be necessary
(including, without limitation, the commencement of and the
diligent prosecution of legal proceedings and the payment of
money) to remove such Prohibited Encumbrances. Landlord shall
also pay to Tenant any damages (other than consequential
damages suffered by Tenant) or costs and expenses that Tenant
may suffer or incur by reason of Landlord's breach of and/or
default under the provisions of this Article 5.
Section 5.02. Prohibited Transfers. Landlord shall
not (i) transfer its interest in this Lease and/or the Premises
to any entity that is not a municipal entity, (ii) transfer its
interest in this Lease to a municipal entity without
simultaneously transferring its interest in the Premises to
such municipal entity, (iii) transfer its interest in the
Premises to a municipal entity without simultaneously
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transferring its interest in this Lease to such municipal
entity, (iv) transfer its interest in this Lease and/or the
Premises to any municipal entity if the effect of such transfer
would be to diminish or adversely affect in any manner
whatsoever Tenant's rights under this Lease, Funding
Agreement #1, Funding Agreement #2, Funding Agreement #3,
Funding Agreement #4, the Power Agreement or any program,
statute, rule or policy, including, without limitation, the
Energy Cost Savings Program, or (v) transfer its interest in
this Lease to any municipal entity without submitting to Tenant
at least ten (10) Business Days prior to the effective date of
such transfer (A) an agreement signed by such municipal entity,
in form and substance reasonably satisfactory to Tenant,
pursuant to which such municipal entity agrees to assume all of
the obligations of Landlord under this Lease and (B) proof
reasonably satisfactory to Tenant that such municipal entity
has the requisite power and authority and has obtained all
necessary authorizations, approvals, consents, resolutions or
other documents of any nature whatsoever to enable it to fully
perform all of the obligations of Landlord under this Lease
including, without limitation, Landlord's obligations pursuant
to Article 21 hereof.
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ARTICLE 6
LATE CHARGES
If any payment of Rental is not received by Landlord
within ten (10) days after notice of an overdue payment has
been sent to Tenant, a late charge on the sums so overdue,
calculated at the Late Charge Rate from the date such Rental
first becomes due to the date on which actual payment of the
sums is received by Landlord, shall become due and payable to
Landlord as liquidated damages for interest lost and the
administrative costs and expenses incurred by Landlord by
reason of Tenant's failure to make prompt payment. Tenant shall
pay Landlord all late charges on demand, which may be made from
time to time. No failure by Landlord to insist upon the strict
performance by Tenant of its obligations to pay late charges
shall constitute a waiver by Landlord of its right to enforce
the provisions of this Article 6 in any instance thereafter
occurring.
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ARTICLE 7
INSURANCE
Section 7.01. Insurance Requirements.
(a) Liability Insurance. At all times during
the Term, Tenant, at its sole expense, shall carry or cause to
be carried insurance against all liability with respect to the
Premises and the operations related thereto, whether conducted
on or off the Premises, in an amount not less than twenty-five
million dollars ($25,000,000) per occurrence and designating
Landlord and Lease Administrator as an additional insured.
Such insurance shall meet all of the standards, limits,
minimums and requirements described in Section 7.07.
(b) Property Insurance. At all times during the
Term, Tenant, at its sole cost and expense, shall carry or
cause to be carried All Risk property damage insurance
protecting Tenant against loss to the Improvements, and
meeting all of the standards, limits, minimums and requirements
described in Section 7.08.
(c) Workers' Compensation and Disability
Insurance. At all times during the Term, Tenant, at its sole
cost and expense, shall carry or cause to be carried Statutory
Workers' Compensation and New York State Disability Benefits
Insurance and any other insurance required by law covering all
persons employed by Tenant, contractors, subcontractors, or
any entity performing work on or for the Premises, including
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Employers Liability coverage in an amount not less than
$2,000,000.00.
(d) Construction Insurance. During the
performance of any Construction Work the estimated cost of
which exceeds $500,000.00, the liability insurance carried or
caused to be carried by Tenant pursuant to Section 7.01(a)
hereof shall also include the insurance described in Section
7.09. The fifty million dollar ($50,000,000) combined single
limit set forth in Section 7.09 shall constitute the aggregate
amount of liability insurance (including the twenty-five
million dollar ($25,000,000) amount set forth in Section
7.01(a)) carried by Tenant during the performance of any
Construction Work the estimated cost of which exceeds
$500,000.00.
Section 7.02. Treatment of Proceeds.
(a) Proceeds of Property Insurance in General.
Insurance proceeds payable with respect to a property loss
shall be paid to Tenant and shall be used for Restoration
purposes to the extent required by this Lease.
(b) Cooperation in Collection of Proceeds.
Landlord shall cooperate with Tenant in connection with the
collection of any insurance moneys that may be due in the event
of loss, and Landlord, at Tenant's request, shall execute and
deliver such proofs of loss and other instruments as may be
required of Landlord for the purpose of obtaining the recovery
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of any such insurance moneys, provided that Tenant shall pay or
reimburse Landlord for any out-of-pocket costs and expenses
incurred by Landlord in connection therewith.
Section 7.03. General Requirements Applicable to
Policies.
(a) Insurance Companies. All of the insurance
required by this Article shall be with companies licensed or
authorized to do business in the State of New York that have a
rating in the latest edition of "Best's Key Rating Guide" of B
10 or better, or such lower rating that Landlord may approve in
writing, such approval not to be unreasonably withheld or
delayed; provided, however, that Tenant shall have the right to
act as a self-insurer with respect to the insurance required to
be carried by Tenant pursuant to this Lease in accordance with
the provisions of Section 7.03(b) hereof.
(b) Self Insurance. In the event that Tenant
wishes to act as a self-insurer with respect to all or any
portion of the insurance required to be carried by Tenant
pursuant to this Lease, Tenant shall submit to Landlord a plan
of self insurance therefor, and Landlord (in consultation with
a recognized risk management firm) shall review such plan of
self insurance and shall not unreasonably withhold or delay its
consent to Tenant's acting as a self-insurer pursuant to such
plan of self insurance. In the event that Landlord withholds
its consent to such plan of self insurance, Landlord shall
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specify its reasons for withholding such consent and shall
advise Tenant of the changes to such plan of self insurance
that would make it acceptable to Landlord. Notwithstanding
anything to the contrary contained herein: (i) in the event
that Tenant obtains approval from the State of New York to act
as a self-insurer with respect to Workers Compensation
Insurance, Landlord's consent to Tenant acting as a
self-insurer with respect to Workers Compensation Insurance
shall be deemed given, (ii) Tenant shall have the right to
submit to arbitration pursuant to Article 34 hereof the issue
of whether Landlord has acted unreasonably in withholding its
consent to Tenant's plan of self insurance and what changes, if
any, should be required to such plan of self insurance and
(iii) Landlord, upon prior written notice to Tenant, shall have
the right to review Tenant's plan of self insurance in
consultation with Landlord's in-house risk manager in lieu of a
recognized risk management firm; provided, however, if Landlord
notifies Tenant of its intention to do so, Tenant shall have
the right to require Landlord to retain a recognized risk
management firm of Landlord's choosing, at Tenant's reasonable
expense.
(c) Required Certificates. Certificates of
insurance evidencing the issuance of all insurance required by
this Article (which certificates shall not indicate that the
issuance of such insurance is subject to payment), describing
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the coverage and providing for thirty (30) days prior notice to
Landlord of cancellation or non-renewal, shall be delivered to
Landlord upon issuance of such insurance or, in the case of new
or renewal policies replacing any policies expiring during the
Term, not later than ten (10) days before the expiration dates
of any expiring policies. The certificates of insurance shall
be issued by the insurance company or a duly authorized agent.
Upon reasonable prior written request, Landlord shall have the
right to review and copy the original policy or policies of
insurance at Tenant's offices.
(d) [Intentionally Omitted].
(e) Required Insurance Policy Clauses. Each
policy of insurance required to be carried pursuant to the
provisions of this Article shall contain (i) with respect to
property insurance only, if the insurer would otherwise have a
right to subrogation with respect to its claims against
Landlord, a written acknowledgment by the insurance company
that its right to subrogation has been waived with respect to
all such claims (provided that such waiver is then customarily
available at no additional cost for similar types of insurance
policies), (ii) an agreement by the insurer that such policy
shall not be canceled, modified or denied renewal (other than
for non-payment of premium) without at least thirty (30) days
prior written notice to Landlord and (iii) a provision that no
act or omission of Tenant shall limit the obligation of the
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insurance company to pay the amount of any loss sustained by
Landlord.
Section 7.04. Increases in Coverage. From time to
time, but not more frequently than once per year, Landlord may
require Tenant to increase or cause to be increased the amount
of coverage provided under the policies of insurance, provided,
however, that (a) unless Landlord is able reasonably to
demonstrate the need for a greater level of coverage, the
amount of such increased coverage shall not exceed the amounts
of similar coverages as at the same time are commonly carried
by owners of comparable buildings, (b) in the event Tenant
disputes any determination by Landlord under this Section, the
matter shall be resolved by arbitration pursuant to Article 34
hereof and (c) in no event shall Tenant be required to purchase
coverage in amounts not then available at commercially
reasonable rates.
Section 7.05. No Representation as to Adequacy of
Coverage. The requirements set forth herein with respect to
the nature and amount of insurance coverage to be maintained or
caused to be maintained by Tenant hereunder shall not
constitute a representation or warranty by Landlord that such
insurance is in any respect adequate.
Section 7.06. Blanket and/or Umbrella Policies. The
insurance required by the provisions of this Article may, at
Tenant's election, be effected by blanket and/or umbrella
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policies issued to Tenant covering the Premises and other
properties owned or leased by Tenant. If the insurance
required by this Article shall be effected by any such blanket
or umbrella policies, Tenant shall furnish to Landlord, upon
Landlord's request, certificates of insurance as provided in
this Article, setting forth the amount of insurance applicable
to the Project.
Section 7.07. Liability Insurance Requirements. The
insurance required by Section 7.01(a) of this Lease shall
consist of commercial general liability insurance protecting
against liability for bodily injury, death, property damage and
personal injury. Such insurance shall:
(a) include a broad form property damage
liability endorsement with fire legal liability limit of not
less than $100,000.00;
(b) contain blanket contractual liability
insurance covering written contractual liability;
(c) contain contractual liability insurance
covering Tenant's indemnification obligations under Article 20;
(d) contain independent contractors coverage;
(e) contain a notice of occurrence clause;
(f) contain a knowledge of occurrence clause;
(g) contain a thirty (30) day notice of
cancellation or non-renewal clause specifically including
notice of cancellation or non-renewal for non-payment of
premium;
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(h) contain an unintentional errors and
omissions clause;
(i) contain coverage for suits arising from the
use of reasonable force to protect persons and property;
(j) contain a cross liability endorsement;
(k) contain coverage for automobiles owned or
leased by Tenant; and
(l) contain no exclusions other than those
included in the basic forms described unless specifically
approved in each instance by Landlord, such approval not to be
unreasonably withheld or delayed.
Section 7.08. Property and Other Insurance
Requirements.
The insurance required by Section 7.01(b) of this
Lease shall consist at least of the following:
(a) Insurance covering all Improvements in the
amount of the full Replacement Value of the Improvements and
including the following coverages or clauses:
(i) a replacement cost valuation without
depreciation or obsolescence clause;
(ii) debris removal coverage;
(iii) demolition cost for undamaged portion
coverage;
(iv) increased cost of construction coverage;
(v) an agreed or stipulated amount
endorsement negating any coinsurance clauses;
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(vi) a thirty (30) day prior notice of
cancellation or non-renewal clause providing for
notice to Landlord and specifically including
cancellation or non-renewal for non-payment of premium.
Section 7.09. Construction Insurance Requirements.
The insurance required by Section 7.01(d) shall consist at
least of the following:
(a) Insurance in an amount not less than fifty
million dollars ($50,000,000) combined single limit for bodily
injury and property damage protecting Tenant, Landlord, Lease
Administrator and the general contractor against all insurable
legal liability claims resulting from work being performed by
or for general contractors and subcontractors engaged to work
on or for the Premises.
(b) Automobile liability insurance covering any
automobile or other motor vehicle owned or leased by Tenant and
used in connection with work being performed on or for the
Premises in an amount not less than ten million dollars
($10,000,000).
(c) The insurance specified in Section 7.09(a)
and (b) shall contain:
(i) Products Liability/Completed Operations
coverage;
(ii) a broad form property damage
endorsement;
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(iii) explosion, collapse and underground
property damage coverage;
(iv) independent contractors coverage;
(v) blanket contractual liability, written
and oral, coverage;
(vi) contractual liability coverage covering
any indemnification agreement protecting Tenant,
Landlord, Lease Administrator and the City (if the
City is no longer Landlord); and
(vii) an endorsement providing that
excavation and foundation work are covered and that
the "XCU exclusions" have been deleted.
Section 7.10. Deductibles. Landlord agrees that
Tenant shall have the right to carry such deductibles with
respect to the insurance required herein as Tenant may
reasonably determine, taking into account (i) changes in the
insurance market from time to time, (ii) the financial strength
of Tenant and (iii) the fact that other companies similar in
size and/or financial strength to Tenant often carry
substantial deductibles.
Section 7.11. No Separate Contractor Coverage
Required. Notwithstanding anything to the contrary in this
Lease or Funding Agreement #1, Tenant shall not be required to
cause any contractors, subcontractors or suppliers engaged in
the performance of Construction Work to carry insurance of any
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nature whatsoever, it being understood and agreed between
Landlord and Tenant that Landlord's interests are adequately
protected by Tenant's obligations under this Article 7 and by
Tenant's obligation to indemnify Landlord pursuant to Article
20 hereof.
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ARTICLE 8
DAMAGE, DESTRUCTION AND RESTORATION
Section 8.01. Notice to Landlord. Tenant shall
notify Landlord reasonably promptly upon obtaining actual
knowledge thereof if, after the Possessory Date, the Premises
are damaged or destroyed in whole or in part (other than an
insubstantial part) by fire or other casualty ("Casualty Loss").
Section 8.02. Tenant's Option Upon a Substantial
Casualty Loss. In the event of a Casualty Loss to
Substantially All of the Premises, Tenant may elect, in its
sole discretion by notice in writing to Landlord within one
hundred and eighty (180) days after obtaining knowledge of the
Casualty Loss (a) to terminate this Lease or (b) to exercise
its option to purchase the Premises subject to and in
accordance with Article 21. In the absence of any such
election, or in the event of a Casualty Loss to less than
Substantially All of the Premises, Tenant shall restore the
Premises, in accordance with the provisions of this Article and
Article 13, to the extent, at least, that immediately after the
Casualty Restoration, the Premises shall contain a Printing
Facility which, at Tenant's option, shall be at least a Minimum
Printing Facility or a smaller Printing Facility that has
substantially the same capacity with respect to the printing,
production and distribution of newspapers, magazines and other
periodicals or printed materials as the Printing Facility that
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was in operation immediately prior to the Casualty Loss (or, if
the Casualty Loss is prior to Substantial Completion, then at
least a Minimum Printing Facility (a "Casualty Restoration").
Section 8.03. Lease Termination or Purchase.
(a) Lease Termination. If Tenant shall have
elected to terminate this Lease pursuant to Section 8.02(a),
the Expiration Date shall be the date specified in Tenant's
termination notice, which shall be within three hundred and
sixty-five (365) days thereafter. In the event the Lease is
terminated pursuant to this Section, Tenant shall cause the
damaged portions of the Improvements to be demolished to the
foundation and cleared of debris, and shall repair and restore
any preexisting fence, unless Landlord shall have requested
Tenant not to demolish any particular Improvement, in which
event Tenant shall have no obligation to demolish such
Improvement. If any portion of the foundation is destroyed,
Tenant shall demolish such portion and bring the land
thereunder to the pre-existing grade of the foundation.
(b) Purchase Option. If Tenant shall have
elected to exercise its Purchase Option, such exercise shall be
governed by the provisions of Article 21.
Section 8.04. Casualty Restoration Construction
Work. If Tenant shall not have elected to terminate this Lease
pursuant to Section 8.02(a) or exercised its Purchase Option
pursuant to Article 21, Tenant shall (subject to Unavoidable
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Delays) commence the Construction Work in connection with a
Casualty Restoration within one hundred and eighty (180) days
after receipt of the insurance proceeds arising from the damage
or destruction which caused the need for such Casualty
Restoration, to the extent insured, or within one hundred and
eighty (180) days of the Casualty Loss, to the extent the same
is not insured. Tenant shall provide Landlord with Tenant's
estimate of the cost of the Casualty Restoration and the time
schedule pertaining to the performance and completion of such
Casualty Restoration. Tenant shall also submit to Landlord
copies of all Plans and Specifications prepared in connection
with such Casualty Restoration for Landlord's review and
approval, subject to the provisions of Section 13.01(c)
including, without limitation, the provisions thereof providing
for deemed approvals, notification to the Buildings Department
and any other applicable Governmental Authorities and an
abatement of Rental for Lease Administrator's failure to take
certain actions in a timely manner, and shall not commence
construction of such Casualty Restoration until such Plans and
Specifications have been approved or deemed approved by
Landlord.
Section 8.05. Restoration Funds. All insurance
proceeds shall be paid directly to Tenant (unless Tenant agrees
with a Recognized Mortgagee to have such funds paid to the
Recognized Mortgagee thereof to be used for Casualty
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Restoration purposes) and, if Tenant shall not have elected to
terminate this Lease pursuant to Section 8.02(a) or exercised
its Purchase Option pursuant to Article 21, shall be applied by
Tenant to the extent necessary toward the Casualty Restoration.
Section 8.06. Effect of Casualty on This Lease. If
Tenant shall not have elected to terminate this Lease pursuant
to Section 8.02 or exercised its Purchase Option pursuant to
Article 21, this Lease shall not terminate, be forfeited or be
affected in any manner whatsoever, and there shall be no
reduction or abatement of Rental, by reason of damage to, or
total or partial destruction of, or untenantability of, the
Premises or any part thereof resulting from a Casualty Loss.
Subject to Section 8.02, Tenant's obligations hereunder,
including the payment of Rental, shall continue as though the
Casualty Loss had not occurred, without abatement, suspension,
diminution or reduction whatsoever. It is the intention of
Landlord and Tenant that the foregoing is an "express agreement
to the contrary" as provided in Section 227 of the Real
Property Law of the State of New York.
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ARTICLE 9
CONDEMNATION
Section 9.01. Substantial Condemnation.
(a) Termination of Lease for Substantial
Condemnation. If all or Substantially All of the Premises are
taken in a Condemnation, this Lease shall terminate on the Date
of Condemnation and the Rental payable by Tenant hereunder
shall be apportioned and paid to the Date of Condemnation.
(b) Disbursement of Award. If all or Substantially
All of the Premises are taken in a Condemnation, the entire
award paid in connection with such Condemnation shall be
apportioned as follows and in the following order:
(i) there shall first be paid to Landlord
so much of the award as would equal the Purchase Price
that would be payable for that part of the Land taken
in such proceeding based upon the ratio that the
square footage of the Land taken bears to the total
square footage of the Land (provided that, in such
event, the Purchase Price specified in Article 21
shall be reduced by the amount of the award paid to
Landlord under this Section); and
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(ii) subject to rights of any Recognized
Mortgagees, Tenant shall receive the balance of the
award, if any.
Notwithstanding the foregoing, if all or any portion of the
Premises are taken or condemned by the City or any department,
agency or instrumentality thereof, the City (whether or not it
is Landlord hereunder at the time) agrees to pay to Tenant, in
addition to the award paid to Tenant as the result of such
taking or condemnation, an additional sum of money such that
the total compensation paid to Tenant as the result of such
taking or condemnation shall include an amount equal to the
difference between (x) all costs incurred or to be incurred by
Tenant as the result of such taking or condemnation including,
without limitation, (i) moving expenses, (ii) land acquisition
costs and (iii) the total cost of constructing, purchasing,
leasing and equipping (with new equipment if the utility of the
equipment at the Premises would be materially impaired upon
removal and installation at a replacement facility, or with
such existing equipment, in which event Landlord shall be
responsible for all costs associated with the disassembly,
moving, reassembly and installation of such equipment) or
otherwise acquiring a replacement facility, and (y) the amount
of the award paid to Tenant as the result of such taking or
condemnation.
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(c) Definition.
(i) "Condemnation" means a taking (whether
or not described as a "condemnation") of all or any
part of the Premises (excluding a taking which is
limited to the fee interest in the Land provided that,
after such taking, Tenant's rights under this Lease
including, without limitation, Tenant's option
pursuant to Article 21 hereof to purchase the
Premises, are not affected) for any public or
quasi-public purpose by any lawful power or authority
by the exercise of the right of condemnation or
eminent domain pursuant to the provisions of
applicable law.
(ii) "Date of Condemnation" means the
earlier of (A) the date on which actual possession of
the Premises, or any part thereof, as the case may be,
is acquired by any lawful power or authority in a
Condemnation or (B) the date on which title to the
Premises, or any part thereof, as the case may be, has
vested in any lawful power or authority in a
Condemnation.
Section 9.02. Less Than A Substantial Condemnation.
(a) Condemnation of Less than Substantially All
of the Premises. If less than Substantially All of the Premises
are taken in a Condemnation, this Lease shall continue for the
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remainder of the Term and (i) the Rental payable hereunder
shall be reduced pursuant to the provisions of Section 9.09
hereof and (ii) there shall not be any diminution of any of
Tenant's non-montary obligations hereunder, except to the
extent Tenant may be prevented from meeting any such
obligations by order of the condemning authority.
(b) Obligation to Restore the Premises. If less
than Substantially All of the Premises are taken in a
Condemnation, Tenant shall restore the remaining portion of the
Premises not so taken to the same extent that would be required
for a Casualty Restoration under Section 8.02 (a "Condemnation
Restoration").
(c) Payment of Award. In the event of any
Condemnation pursuant to Section 9.02(a), the award shall be
paid in accordance with Section 9.01(b).
(d) Performance of Condemnation Restoration.
The Construction Work in connection with a Condemnation
Restoration, submission of plans and specifications, provision
of estimated cost and time schedule, and disbursement by Tenant
of the Condemnation award shall be done, determined, made and
governed in accordance with the provisions of Section 8.04 as
if the Condemnation Restoration were a Casualty Restoration.
Section 9.03. [Intentionally Omitted]
Section 9.04. Temporary Taking.
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(a) Notice of Temporary Taking. If the
temporary use of the whole or any portion of the Premises is
taken for a public or quasi-public purpose by a lawful power or
authority by the exercise of the right of condemnation or
eminent domain, Tenant shall give Landlord notice within
thirty (30) days thereof. If the Temporary Taking is by the
City or any department, agency or instrumentality thereof, the
City (whether or not it is the Landlord hereunder at the time)
shall pay to Tenant an amount equal to two (2) times the amount
of the award(s) paid to Tenant as the result of such Temporary
Taking, at the same time that such award(s) are paid to
Tenant. The Term shall not be reduced or affected in any way
by reason of such temporary taking and Tenant shall continue to
pay to Landlord the Rental without reduction or abatement.
(b) Effect of Temporary Taking. In the event of
a temporary taking as described in Section 9.04(a), Tenant
shall be entitled to receive the entire amount of any award
made for such taking, whether paid by way of damages, rent or
otherwise; provided, however, that if such period of temporary
use or occupancy shall extend beyond the expiration of the Term
such award shall be apportioned between Landlord and Tenant as
of such date of expiration of the Term; provided, however, that
Landlord shall not be entitled to any portion of such award if
Tenant exercises its option to purchase the Premises within six
(6) months after notice to Tenant of the determination of such
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award. Notwithstanding the foregoing, if the taking results in
changes or alterations in the Project that would necessitate
expenditures to permit the operation of the Premises as a
Printing Facility, then Tenant shall to the extent of the
moneys received from the award with respect to the Temporary
Taking restore the Project in the same manner, and subject to
the same terms and conditions, as if such restoration were a
Condemnation Restoration.
(c) Temporary Taking Exceeding Ninety Days.
Notwithstanding anything to the contrary contained in this
Lease, if there is a Temporary Taking of Substantially All of
the Premises for a period exceeding ninety (90) days, Tenant,
at its option, shall have all of the rights afforded to it
under this Lease as if such event was a taking of Substantially
All of the Premises pursuant to the provisions of Section 9.01
hereof.
Section 9.05. Governmental Action Not Resulting in a
Condemnation. In case of any governmental action not resulting
in the Condemnation of any portion of the Premises but creating
a right to compensation therefor, such as the changing of the
grade of any street upon which the Premises abut, then this
Lease shall continue in full force and effect without reduction
or abatement of Rental. Any award payable thereunder shall be
paid to Tenant.
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Section 9.06. Collection of Awards. Each of the
parties shall execute documents that are reasonably required to
facilitate collection of any awards made in connection with any
condemnation proceeding referred to in this Article.
Section 9.07. Tenant's Approval of Settlements.
Tenant shall have the exclusive right to settle or compromise
any Condemnation or other governmental action without the
consent of Landlord.
Section 9.08. Negotiated Sale. In the event Tenant
approves a negotiated sale of all or a portion of the Premises
in lieu of condemnation, the proceeds shall be distributed as
provided herein for cases of condemnation.
Section 9.09. Reduction of Base Rent and Land PILOT.
In the event of any Condemnation described in Section 9.02,
effective upon the Date of Condemnation, Base Rent and Land
PILOT (and the Schedule of Maximum Land PILOT annexed hereto as
Exhibit D) shall be reduced by an amount (and recalculated in
the case of Exhibit D) equal to the product obtained by
multiplying the Base Rent and Land PILOT (and Maximum Land
PILOT) payable (or shown on Exhibit D) immediately prior to
such Date of Condemnation by a fraction, the numerator of
which is the amount of Land at the Premises taken pursuant to
the Condemnation proceeding and the denominator of which is the
amount of Land at the Premises immediately before the
Condemnation. Improvements PILOT shall be appropriately
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reduced in accordance with Section 3.05(b)(ii)(A) and (B) based
on any reduction in Gross Building Square footage caused by the
condemnation.
Section 9.10. Reduction of Purchase Price. In the
event of any Condemnation, the Purchase Price shall be reduced
by the amount, if any, equal to the portion of any Condemnation
award paid to Landlord pursuant to the provisions of Section
9.01(b)(i) hereof.
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ARTICLE 10
TRANSFER AND SUBLETTING
Section 10.01. Tenant's Right to Assign, Sublet,
Transfer, Etc.
(a) Limitations on Right of Transfer. Tenant
shall not enter into any Transfer other than a Collateral
Assignment or a Permitted Transfer.
(b) Definitions.
(i) "Transfer" means (A) the sale,
exchange, assignment or other disposition of all or
substantially all of Tenant's interest in this Lease
or the leasehold estate created hereby whether by
operation of law or otherwise, or (B) a Sublease of
all or substantially all of the Premises (a "Major
Sublease").
(ii) "Collateral Assignment" means a
Transfer (A) to a Recognized Mortgagee or an Affiliate
of a Recognized Mortgagee, as collateral security, or
following foreclosure of the Recognized Mortgage, or
in lieu of foreclosure thereof, or (B) by a Recognized
Mortgagee or an Affiliate thereof following either
foreclosure of the Recognized Mortgage or a Transfer
in lieu of foreclosure thereof.
(iii) "Transferee" means a Person to which a
Transfer is made.
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(iv) "Permitted Transfer" means a Transfer
to either (x) a Transferee which is an Affiliate of
Tenant, regardless of whether such Transferee is a
Prohibited Person (an "Affiliate Transfer"), (y) a
Transferee which is a successor to Tenant or any
Affiliate of Tenant by merger, consolidation or
transfer of substantially all of the assets of Tenant
or such Affiliate of Tenant, regardless of whether
such Transferee is a Prohibited Person (a "Merger/Sale
Transfer") or (z) a Transferee which is not a
Prohibited Person provided that, in the case of (x),
(y) and (z) above:
(A) except in the case of a Major Sublease,
the Transferee assumes all of Tenant's
obligations hereunder in accordance with the form
of Assumption attached hereto as Exhibit H;
(B) on the effective date of the Transfer
this Lease is in full force and effect;
(C) notice pursuant to Section 10. 01(e)
and (f) has been given to Landlord;
(D) Tenant has delivered or, within five
(5) Business Days after the Transfer, delivers to
Landlord copies of the instruments of Transfer in
conformance with Section 10.01(h).
(c) Definition of Prohibited Persons. The term
"Prohibited Person" as used in this Lease shall mean:
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(i) Any Person (A) that is in monetary
default after notice and beyond any applicable grace
period, of its obligations under any material written
agreement with Landlord, or (B) that directly
controls, is controlled by, or is under common control
with a Person that is in monetary default after notice
and beyond any applicable grace period, of its
obligations under any material written agreement with
Landlord, unless, in each instance, such default or
breach either (x) has been waived in writing by
Landlord or (y) is being disputed in a court of law,
administrative proceeding, arbitration or other forum
or (z) is cured within thirty (30) days after a
determination and notice to Tenant from Landlord that
such Person is a Prohibited Person as a result of such
default.
(ii) Any Person that is an organized crime
figure, unless the City is otherwise doing business
with such person notwithstanding such organized crime
status.
(iii) Any government, or any Person that is
directly or indirectly controlled (rather than only
regulated) by a government, that is finally determined
to be in violation of (including, but not limited to,
any participant in an international boycott in
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violation of) the Export Administration Act of 1979,
as amended, or any successor statute, or the
regulations issued pursuant thereto, or any government
that is, or any Person that, directly or indirectly,
is controlled (rather than only regulated) by a
government that is subject to the regulations or
controls thereof.
(iv) Any government, or any Person that,
directly or indirectly, is controlled (rather than
only regulated) by a government, the effects or the
activities of which are regulated or controlled
pursuant to regulations of the United States Treasury
Department or executive orders of the President of the
United States of America issued pursuant to the
Trading with the Enemy Act of 1917, as amended.
(v) Any Person that is in default in the
payment to the City of any real estate taxes, sewer
rents or water charges totalling more than $10,000,
unless such default is then being contested in good
faith in accordance with the law or unless such
default is cured within thirty (30) days after a
determination and notice to Tenant from Landlord that
such Person is a Prohibited Person as a result of such
default.
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(vi) Any Person that has solely owned at any
time during the three (3) years immediately preceding
a determination of whether such Person is a Prohibited
Person, any property which both (x) was acquired by
such Person during such three (3) year period in an in
rem tax foreclosure and (y) was reacquired during such
three (3) year period from such Person by the City in
an in rem tax foreclosure, other than a property in
which the City has released or is in the process of
releasing its interest pursuant to the Administrative
Code of the City.
(vii) Any Person that is or has been at any
time during the three (3) years immediately preceding
a determination of whether such Person is a Prohibited
Person, in material, non-monetary default directly
related to a statutory requirement, Executive Order or
a regulation of a City agency after notice and beyond
any applicable grace period (which material,
non-monetary default has not been cured) under any
material written agreement with Landlord, unless, in
each instance, either (x) such default has been waived
in writing by Landlord or Landlord has not commenced
prior to its receipt of Tenant's notice given pursuant
to Section 10.01(e) hereof and thereafter diligently
pursued efforts to terminate its relationship with
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such Person or commenced prior to its receipt of
Tenant's notice given pursuant to Section 10.01(e)
hereof and thereafter diligently sought alternative
remedies available to it under such material written
agreement with respect to such material, non-monetary
default, (y) such default is being disputed in a court
of law, administrative proceeding, arbitration or
other forum (provided that such dispute was initiated
by such Person by the later to occur of (A) the date
that is sixty (60) days after such Person's receipt of
notice from Landlord of such material, non-monetary
default or (B) the date that is one hundred eighty
(180) days prior to the date of Tenant's notice given
pursuant to Section 10.01(e) hereof, failing which,
the issue of whether such Person is a Prohibited
Person shall be determined by arbitration pursuant to
the provisions of Section 10.01(g) hereof) or (z) such
default is cured within thirty (30) days after a
determination and notice to Tenant from Landlord that
such Person is a Prohibited Person as a result of such
default.
(d) Determination of Organized Crime Figure.
The determination as to whether any Person is an organized
crime figure shall be within the reasonable discretion of
Landlord and shall be made within thirty (30) days of the
receipt of Tenant's request for such determination.
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(e) Notice to Landlord. Tenant shall notify
Landlord of its intention to enter into any Transfer not less
than thirty (30) days before the proposed effective date of
such Transfer with respect to a Transfer that is not an
Affiliate Transfer or a Merger/Sale Transfer, and not less than
ten (10) days after the effective date of such Transfer with
respect to a Transfer which is an Affiliate Transfer or a
Merger/Sale Transfer.
(f) Contents of Notice.
(i) The notice required by Section 10.01(e)
shall contain the following information:
(A) in the case of a proposed corporate
Transferee or in the case of a corporate
general partner in a partnership that is the
proposed Transferee (other than a
corporation whose common stock is traded on
a recognized exchange or over-the-counter or
is registered under the Securities Act of
1933, as amended), a certificate of an
authorized officer of such corporation
giving the names and addresses of all
directors and officers of the corporation
and Persons having more than a five percent
(5%) interest in such Transferee;
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(B) in the case of a proposed corporate
Transferee, or corporate general partner in
a partnership that is the proposed
Transferee, whose stock is publicly traded
on a recognized exchange or over-the-counter
or is registered under the Securities Act of
1933, as amended, a certificate of an
authorized officer of such corporation
giving the names and addresses of all
directors and senior officers of the
corporation and Persons having more than a
ten percent (10%) interest in such
Transferee, to the extent such information
is disclosed in such corporation's then most
recent filings required to be made by it
with the Securities and Exchange Commission;
(C) in the case of a proposed partnership
Transferee, a certificate of the managing
general partner or other authorized general
partner in the proposed Transferee giving
the names and addresses of all general and
limited partners in the partnership; and
(D) in all cases, a certification by an
authorized officer, managing general
partner, or other authorized general partner
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of Tenant, whichever shall be applicable, to
the effect that, to the best of his or her
knowledge, the Transfer does not violate the
provisions of Section 10.01(a), but in no
event shall such person incur any personal
liability in the event such certification is
incorrect.
(ii) If any change in circumstances prior to
the closing of the transaction renders the information
provided in clause (i) above materially incomplete or
incorrect, Tenant shall notify Landlord of the change,
which notification shall recommence the period for
Landlord's notification to Tenant under Section
10.01(g).
(g) Objections; Deemed Consent. Landlord shall
notify Tenant, within thirty (30) days after receipt of notice
from Tenant pursuant to the provisions of Section 10.01(e),
whether the Landlord objects to consummation of the Transfer on
the grounds that the same would violate the provisions of
Section 10. 01(a), which objection shall be in writing and in
reasonable detail, and, in the absence of any such written
objection from Landlord within such period, Landlord shall be
deemed to have consented to the proposed Transfer.
Notwithstanding anything to the contrary set forth herein,
(x) Landlord's consent shall not be required with respect to
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any Transfer that is an Affiliate Transfer or a Merger/Sale
Transfer and (y) with respect to any Transfer that is not an
Affiliate Transfer or a Merger/Sale Transfer the only
permissible grounds for withholding consent shall be that the
Transferee is a Prohibited Person. Tenant shall have the right
to submit to arbitration pursuant to Article 34 hereof the
issue of whether Landlord has acted unreasonably in withholding
its consent to any Transfer that is not an Affiliate Transfer
or a Merger/Sale Transfer. If the Arbiter determines that
Landlord has acted unreasonably, then (i) Landlord shall be
deemed to have consented to such Transfer effective as of the
date of the Arbiter's decision and (ii) Tenant or the
Transferee shall be entitled to an offset against future
installments of Rental (excluding Impositions and College Point
Improvement Fund Payments) in an amount equal to the product
arrived at by multiplying (x) $1,000.00 by (y) the number of
days in the period commencing on the date Tenant gives a
Dispute Notice in connection with Landlord's withholding of
consent and expiring on the date of the Arbiter's decision.
(h) Instruments of Transfer. Tenant shall
deliver to Landlord, or shall cause to be delivered to
Landlord, within thirty (30) days after execution and delivery
thereof, (i) in the case of an assignment (including a
Collateral Assignment) of the Tenant's interest in this Lease,
executed counterpart(s) or photostatic copies of the
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instrument(s) of assignment and assumption, (ii) in the case
of a Major Sublease, an executed counterpart or a photostatic
copy of the Sublease, and (iii) for all other Transfers, an
executed counterpart or a photostatic copy of the instrument of
Transfer.
(i) Invalidity of Transactions. Subject to the
provisions of Section 10.01(g) hereof, any Transfer entered
into without Landlord's consent (or deemed consent, pursuant to
Section 10.01(g)) as required in this Lease, or which in any
other material respect fails to comply with the provisions of
this Lease, shall have no validity and shall be null and void
and without any effect.
Section 10.02. Subtenant Violation. No failure to
include an obligation under this Lease in any Sublease shall
relieve Tenant of, or in any way limit, such obligation under
this Lease. A violation or breach of any of the terms,
provisions or conditions of this Lease that results from, or is
caused by, an act or omission by a Subtenant (whether or not
such act or omission is permitted by such Subtenant's Sublease)
shall not relieve Tenant of Tenant's obligation to cure such
violation or breach.
Section 10.03. Tenant's Right to Sublease. Except as
expressly provided in Section 10.01(a) with respect to Major
Subleases, Tenant shall have the unrestricted right to sublet
portions of the Premises at any time and from time to time.
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ARTICLE 11
MORTGAGES
Section 11.01. Effect of Mortgages.
(a) Tenant shall have the right, at any time and
from time to time during the Term, to mortgage the leasehold
estate created hereby; provided that no Mortgage shall extend
to, affect, or be a lien or encumbrance upon, the estate and
interest of Landlord in the Premises or any part thereof.
(b) "Mortgage" means any mortgage or deed of
trust (including any consolidation of two or more mortgages or
deeds of trust) that constitutes a lien on Tenant's interest in
this Lease and the leasehold estate created hereby.
Section 11.02. Mortgagee's Rights Not Greater than
Tenant's.
(a) With the exception of the rights granted to
Recognized Mortgagees pursuant to the provisions of Sections
11.03, 11.04, 11.06, 11.07, and 11.10, and by any other
provision of this Lease, the execution and delivery of a
Mortgage or a Recognized Mortgage shall not give nor shall be
deemed to give a Mortgagee or a Recognized Mortgagee any
greater rights against Landlord than those granted to Tenant
hereunder.
(b) Definition:
"Recognized Mortgage" means a Mortgage
(i) the holder of which is not an
Affiliate of Tenant;
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(ii) that is held by a Person which is
either an Institutional Lender or which has (or
has an Affiliate which has) the financial
capacity and business expertise to operate the
Premises as a Printing Facility and, in either
case, is not controlled by an organized crime
figure; and
(iii) a photostatic copy of which has
been delivered to Landlord (with photostatic
copies of all modifications and extensions),
together with a certification by Tenant and the
Mortgagee confirming that said photostatic copies
are true copies of the documents and giving the
name and post office address of the holder of the
Mortgage.
Section 11.03. Notice and Right to Cure Tenant's
Defaults.
(a) Notice to Recognized Mortgagee. Landlord
shall give to each Recognized Mortgagee, at the address of the
Recognized Mortgagee stated in the certification referred to in
Section 11.02(b), or in any subsequent notice given by the
Recognized Mortgagee to Landlord, and otherwise in the manner
pursuant to the provisions of Article 25, a copy of each notice
of Default, at the same time as it gives such notice of
Default, to Tenant, and no such notice of Default shall be
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deemed effective unless and until a copy thereof shall have
been so given to each Recognized Mortgagee. In no event will
notices be delivered to more than two addresses per Recognized
Mortgagee.
(b) Right and Time to Cure. Subject to the
provisions of Sections 11.03(d) and 11.05, each Recognized
Mortgagee shall have a period of (i) thirty (30) days more, in
the case of a Default in the payment of Rental, and (ii) sixty
(60) days more, in the case of any other Default, than is
given Tenant under the provisions of this Lease to remedy the
Default, cause it to be remedied, or cause action to remedy a
Default to be commenced, provided that, except with respect to
a Default in payment of Rental, such Recognized Mortgagee
delivers to Landlord, within thirty (30) days after the
expiration of the time given to Tenant pursuant to the
provisions of this Lease to remedy the event or condition which
would otherwise constitute an Event of Default hereunder, a
written notice that it will take the action described in
Section 11.03(d)(iii)(A) or (B).
(c) Acceptance of Recognized Mortgagee's
Performance. Subject to the provisions of Section 11.05,
Landlord shall accept performance by a Recognized Mortgagee of
any covenant, condition or agreement on Tenant's part to be
performed hereunder with the same force and effect as though
performed by Tenant.
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(d) Commencement of Performance by Recognized
Mortgagee for Non-Rental Defaults. No Event of Default (other
than an Event of Default arising from the nonpayment of Rental)
shall be deemed to have occurred so long as
(i) all Rental is being timely paid as
required in this Lease (it being understood that, in
the case of a Recognized Mortgagee, Rental shall be
deemed timely paid if paid prior to the expiration of
the cure period provided in Section 11.03(b)(i)),
(ii) a Recognized Mortgagee has delivered
the notice required by Section 11.03(b) within the
period required thereby, and
(iii) the Recognized Mortgagee that delivered
such notice:
(A) in the case of a Default that is curable
without possession of the Premises by the
Recognized Mortgagee, has commenced in good
faith, within the period required in Section
11.03(b)(ii), to cure the Default and is
prosecuting such cure to completion with
diligence and continuity, or
(B) in the case of a Default where possession of
the Premises is required in order to cure
the Default, or which is a Default that is
otherwise not susceptible of being cured by
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a Recognized Mortgagee, has instituted
foreclosure proceedings, and is diligently
prosecuting the foreclosure proceedings to
obtain possession of the Premises, and, upon
obtaining possession of the Premises,
promptly commences to cure the Default
(other than a Default which is not
susceptible of being cured by a Recognized
Mortgagee) and prosecutes such cure to
completion with diligence.
Section 11.04. Execution of New Lease.
(a) Notice of Termination. If this Lease is
terminated by reason of an Event of Default, Landlord shall
give prompt notice thereof to each Recognized Mortgagee.
(b) Request for and Execution of New Lease. If,
within sixty (60) days of the later of (i) the date of
Landlord's notice to a Recognized Mortgagee pursuant to Section
11.04(a) or (ii) the date on which such Recognized Mortgagee
obtains possession of the Premises, such Recognized Mortgagee
shall request a new lease, then subject to the provisions of
Sections 11.04(c) and 11.05, within thirty (30) days after
Landlord shall have received such request, Landlord shall
execute and deliver at least two (2) counterparts of a new
lease of the Premises for the remainder of the Term to the
Recognized Mortgagee, or a designee or nominee thereof,
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provided that such designee or nominee is not a Prohibited
Person. Said Recognized Mortgagee (or permitted designee or
nominee thereof) shall promptly after its receipt of such new
lease of the Premises execute such new lease, as tenant
thereunder and deliver one (1) fully-executed counterpart to
Landlord. The new lease shall have the same priority and shall
contain all of the covenants, conditions, limitations and
agreements contained in this Lease, provided, however, Landlord
shall not be deemed to have represented or covenanted that such
new lease shall be superior to claims of Tenant, Tenant's other
creditors or a judicially appointed receiver or trustee for
Tenant.
(c) Conditions Precedent to Landlord's Execution
of New Lease. The provisions of Section 11.04(b)
notwithstanding, Landlord shall not be obligated to enter into
a new lease with a Recognized Mortgagee unless the Recognized
Mortgagee
(i) pays to Landlord, concurrently with the
execution and delivery of the new lease to Landlord,
all Rental due under this Lease up to and including
the date of the commencement of the term of the new
lease and all expenses, including, without limitation,
out-of-pocket reasonable attorneys' fees and
disbursements and court costs, incurred by Landlord or
Lease Administrator in connection with the Default or
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Event of Default, the termination of this Lease and
the preparation of such new lease,
(ii) agrees that it shall reasonably
promptly after execution of the new lease cure all
material Defaults (other than those not susceptible of
cure by a Recognized Mortgagee) then existing under
this Lease (as though this Lease had not been
terminated), and
(iii) delivers to Landlord a statement, in
writing, acknowledging that Landlord, by entering into
such new lease with such Recognized Mortgagee, shall
not have or be deemed to have waived any material
Defaults or Events of Default then existing under this
Lease (other than those not susceptible of cure by a
Recognized Mortgagee) notwithstanding that any such
material Defaults or Events of Default existed prior
to the execution of such new lease and that the
breached obligations which gave rise to the Defaults
or Events of Default are also obligations under such
new lease; provided that prior to the delivery of such
statement to Landlord, if requested by a Recognized
Mortgagee, Landlord shall specify in reasonable
detail, in writing, all existing material Defaults
then known to Landlord and, in the event the
Recognized Mortgagee disputes any such specified
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material Default of a nature described in Sections
24.01(b) or (c) hereof, the Recognized Mortgagee may
submit the matter to arbitration; provided, however,
that notwithstanding anything to the contrary
contained herein, such Recognized Mortgagee shall not
be responsible for any Defaults or Events of Default
which either (x) have been cured or, for any other
reason, no longer constitute a continuing Default or
Event of Default or (y) are not susceptible of cure by
a Recognized Mortgagee.
Section 11.05. Recognition by Landlord of Recognized
Mortgagee Most Senior in Lien. If more than one Recognized
Mortgagee has exercised any of the rights afforded by Sections
11.03 or 11.04, then, unless otherwise provided in the
Recognized Mortgage most senior in lien (and priority) or
consented to by the holder thereof, only that Recognized
Mortgagee, to the exclusion of all other Recognized Mortgagees,
whose Recognized Mortgage is most senior in lien (and priority)
shall be recognized by Landlord as having exercised such right,
for so long as such Recognized Mortgagee shall be diligently
exercising its rights under this Lease with respect thereto,
and thereafter only the Recognized Mortgagee whose Recognized
Mortgage is next most senior in lien (and priority) shall be
recognized by Landlord, unless such Recognized Mortgagee has
designated a Recognized Mortgagee whose Mortgage is junior in
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lien to exercise such right. If the parties shall not agree on
which Recognized Mortgage is prior in lien, such dispute shall
be determined, at no expense to Landlord, by a then current
certificate of title issued by a title insurance company
licensed in New York State and chosen by Landlord, and such
determination shall bind the parties.
Section 11.06. Appearance at Condemnation
Proceedings. A Recognized Mortgagee shall have the right to
appear in any condemnation proceedings and to participate in
any and all hearings, trials and appeals in connection
therewith.
Section 11.07. Rights Limited to Recognized
Mortgagees. The rights granted to a Recognized Mortgagee under
the provisions of this Lease shall not apply in the case of any
Mortgagee that is not a Recognized Mortgagee.
Section 11.08. Consent to Assignment of Tenant
Rights. Landlord hereby consents to the inclusion of a
provision in any Recognized Mortgage providing for, at the
option of the Recognized Mortgagee: (a) a conditional
assignment of the option to purchase granted under Article 21
of this Lease, (b) an assignment of Tenant's share of the net
proceeds from any award or other compensation resulting from a
Condemnation of Substantially All of the Premises or less than
Substantially All of the Premises as set forth in Article 9 of
this Lease, (c) the entry of the Recognized Mortgagee upon the
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Premises, without notice to Landlord or Tenant, to view the
state of the Premises, (d) an assignment of Tenant's right, if
any, to terminate, cancel, modify, change, supplement, alter or
amend this Lease, (e) an assignment of Tenant's rights under
any Sublease, and (f) effective upon any default under any such
Recognized Mortgage (i) the foreclosure of the Recognized
Mortgage pursuant to a power of sale by judicial proceedings or
other lawful means and the subsequent sale of the leasehold
estate to the purchaser at the foreclosure sale and a sale by
such purchaser and/or a sale by any subsequent purchaser, (ii)
the appointment of a receiver, irrespective of whether the
Recognized Mortgagee accelerates the maturity of all
indebtedness secured by the Recognized Mortgage (iii) the right
of the Recognized Mortgagee or the receiver to enter and take
possession of the Premises to manage and operate the same and
to collect the subrentals, issues and profits therefrom and to
cure any default under the Recognized Mortgage or any default
by Tenant under this Lease, and (iv) an assignment of Tenant's
right, title and interest in and to any deposit of cash,
securities or other property which may be held to secure the
performance of covenants, conditions and agreements contained
in this Lease, the premiums for or dividends upon any insurance
provided for the benefit of any Recognized Mortgagee or
required by the terms of this Lease, as well as in all refunds
or rebates of Taxes, Impositions or Exempt Taxes assessments
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upon or other charges against the Premises, whether paid or to
be paid.
Section 11.09. Prohibition Against Surrender.
Landlord shall not, without the prior written consent of each
Recognized Mortgagee, accept a voluntary surrender of this
Lease at any time while a Recognized Mortgage remains a lien on
the leasehold estate demised hereby.
Section 11.10. No Merger. Landlord hereby agrees,
for the benefit of any Recognized Mortgagee, that, so long as
any Recognized Mortgage shall remain a lien on the leasehold
estate demised hereby, that in the event title to the fee
interest in the Premises and the leasehold estate interest of
Tenant in this Lease shall for any reason, whether by operation
of law or otherwise, be vested in the same party, the
respective interests or estates shall not be deemed to merge,
it being the intention of the parties that the fee estate and
leasehold estate survive as separate distinct estates.
Section 11.11. No Subordination to Fee Mortgage. In
the event that Landlord shall place any mortgage on its fee
interest in the Premises, whether or not in violation of
Section 5.01 hereof, this Lease and any Recognized Mortgage
shall not be subordinate to any such fee mortgage.
Section 11.12. No Modifications. In the event that
Landlord and Tenant shall amend or alter any of the terms or
provisions of this Lease without the prior written consent of
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any Recognized Mortgagees, any such amendment or alteration
shall not be binding upon any such Recognized Mortgagees.
Section 11.13. Estoppel Certificate. Landlord, at
any time, and from time to time, upon at least twenty (20)
days' prior notice by a Recognized Mortgagee, shall execute,
acknowledge and deliver to such Recognized Mortgagee, and/or to
any other person, firm or corporation specified by such
Recognized Mortgagee, a statement certifying that this Lease is
unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as
modified and stating the modifications), stating the dates to
which the rent and additional rent have been paid, and stating
whether or not there exist any defaults by Tenant under this
Lease, and, if so, specifying each such default. Such
statement shall also certify as to any additional matters
reasonably requested by such Recognized Mortgagee.
Section 11.14. Modification of Lease. In the event
that an entity that meets the requirements set forth in
Sections 11.02(b)(i) and (ii) hereof requests that reasonable
modifications be made to this Lease as a precondition to
entering into a Recognized Mortgage with Tenant with respect to
the Premises, Landlord shall agree and enter into such
reasonable modifications with Tenant; provided, however, that
no such requested modification shall (a) reduce the amounts
payable by Tenant hereunder, (b) modify the Term, (c)
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materially increase the rights of Tenant hereunder, or (d)
materially adversely affect the rights and obligations of
Landlord hereunder.
Section 11.15. Chattel Mortgages. Landlord
acknowledges and agrees that Tenant may lease or finance
purchases of Tenant's Property. Landlord, upon Tenant's
request, will enter into written agreements with any vendor,
lessor or lender from whom Tenant has purchased or leased
Tenant's Property or borrowed money for the purchase thereof on
such vendor's, lessor's or lender's standard form with such
reasonable changes that Landlord may request, providing that:
(i) such Tenant's Property shall be and remain personal
property notwithstanding the fact that the same may be affixed
to the Premises, (ii) the security interest of such vendor,
lessor or lender in such Tenant's Property shall be senior to
any interest of Landlord therein, (iii) in the event of a
default by Tenant under this Lease, Landlord shall provide such
vendor, lessor or lender with at least sixty (60) days prior
written notice and an opportunity to remove from the Premises
any Tenant's Property in which such vendor, lessor or lender
has a security interest and (iv) that such vendor, lessor or
lender may enter the Premises at any time pursuant to a written
agreement between Tenant and such vendor, lessor or lender for
the sole purpose of removing such Tenant's Property if such
removal is necessary to protect its security interest therein;
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provided that, in conducting such entry and removal, such
vendor, lessor or lender shall: (a) prior to entry, provide
Landlord upon Landlord's request with evidence of appropriate
liability insurance as reasonably determined by Landlord,
(b) use reasonable care, (c) repair all damage caused by its
activities in or about the Premises, and (d) comply with all
applicable laws.
Section 11.16. Additional Notices to Mortgagees. In
addition to providing a copy of each notice of Default to
Recognized Mortgagees pursuant to Section 11.03(a) hereof,
Landlord shall give to each Recognized Mortgagee, at the
address of the Recognized Mortgagee stated in the certification
referred to in Section 11.02(b), or in any subsequent notice
given by the Recognized Mortgagee to Landlord, and otherwise in
the manner pursuant to the provisions of Article 25, a copy of
each notice to Tenant, at the same time as it gives such notice
to Tenant, which requires Tenant to take or refrain from taking
any action if the failure to do so could result in a Default.
Section 11.17. Provisions of Lease Continue in Effect
After Foreclosure. In the event of a foreclosure of a
Recognized Mortgage pursuant to a power of sale by judicial
proceedings or other lawful means and the subsequent sale of
the leasehold estate to the purchaser at the foreclosure sale,
all of the terms and conditions of this Lease shall remain in
full force and effect, and shall be binding upon any purchaser
succeeding to the rights of Tenant under this Lease including,
without limitation, the provisions of Article 28 hereof.
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ARTICLE 12
CAR POUND
Section 12.01. Removal of Car Pound. Landlord shall
cause the Car Pound to be removed from the Premises and the
Possessory Date to occur on or prior to the 4th Anniversary
Date; provided that Tenant shall not be obligated to accept
possession of the Premises (and accordingly the Possessory Date
shall not occur) prior to the earlier to occur of (x) the Car
Pound Removal Date and (y) the 4th Anniversary Date; and
further provided, however, that at any time on or after the
date hereof and prior to the 10th anniversary of the Lease
Execution Date, if the Car Pound shall not have been removed
from the Premises, Tenant may give Landlord written notice (the
"Car Pound Removal Notice")
(a) stating that Tenant is prepared to either
(i) commence or continue the filling, rough grading
and/or compaction of soil at the Project or (ii)
Commence Construction of the Project on or about a
date (the "Car Pound Removal Date") which shall be
specified in the Car Pound Removal Notice and which
Car Pound Removal Date shall be
(i) not earlier than six (6) months after
the date of the Car Pound Removal Notice and
(ii) not later than nine (9) months after
the date of the Car Pound Removal Notice,
and
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(b) requiring that the Car Pound be removed and
the Possessory Date occur on or prior to the Car Pound
Removal Date,
in which event Landlord shall cause the Car Pound to be removed
and cause the Possessory Date to occur not later than the Car
Pound Removal Date subject, however, to delays due to acts of
God (including, without limitation, catastrophic weather
conditions), fire or casualty ("Landlord's Unavoidable
Delays"); provided, however, that Tenant shall not be obligated
to accept possession of the Premises (and acccordingly the
Possessory Date shall not occur) prior to the Car Pound Removal
Date specified in the Car Pound Removal Notice.
Landlord hereby acknowledges its receipt of the Car
Pound Removal Notice as of the date hereof, which Car Pound
Removal Notice sets forth June 17, 1994 as the Car Pound
Removal Date, and Landlord and Tenant agree that for the
purposes of this Lease, the Car Pound Removal Date shall mean
June 17, 1994; subject, however, to the provisions of the
immediately preceding paragraph with respect to Landlord's
Unavoidable Delays.
Section 12.02. Damages for Tenant's Failure to
Construct after Notice. If, without regard to whether Landlord
shall have commenced construction of a permanent relocation Car
Pound:
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(a) Prior to the 4th Anniversary Date, Tenant
shall deliver to Landlord a Car Pound Removal Notice,
(b) Landlord shall, or shall cause EDC to,
complete construction of an interim relocation Car
Pound for the cars to be removed from the Premises,
(c) the Possessory Date shall occur on or before
the Car Pound Removal Date, and
(d) Tenant shall fail to commence and dilgently
prosecute the driving of piles at the Project within
twelve (12) months after the Possessory Date
(provided that such twelve-month time
period shall be subject to "unavoidable delays"
of the same kind described above with respect to
Landlord's Unavoidable Delays), or such longer period
during which Tenant may provide Landlord, on a monthly
basis, with a certificate of a licensed professional
engineer stating that in such professional engineer's
opinion, taking into account sound construction
practices, it would not be advisable to begin the
driving of piles either (i) because soil brought to
the Project had not settled sufficiently or (ii) due
to other technical or weather-related reasons,
then, within thirty (30) days after Tenant's receipt of
Landlord's written demand, Tenant shall reimburse Landlord
and/or EDC for all out-of-pocket costs (both design and
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construction) incurred by Landlord or EDC in connection with
the construction of such interim relocation Car Pound after
receipt of the Car Pound Removal Notice. Landlord's demand
shall be accompanied by invoices, receipts or other
documentation evidencing the costs thereof, substantially the
same as those invoices, receipts and documentation to be
submitted by Tenant to Landlord in connection with the
construction of the Interim Car Pound as set forth in Funding
Agreement #3.
Section 12.03. Damages for Landlord's Failure to
Remove Car Pound. If the Possessory Date shall not have
occurred prior to the Car Pound Removal Date, then from and
after the Car Pound Removal Date and continuing until the
Possessory Date (or for such shorter period as may be
hereinafter set forth), Tenant shall be entitled to accrue, as
liquidated damages, the following amounts ("Car Pound Offset
Amounts") as offsets against future installments of Rental
(exclusive of Impositions and College Point Improvement Fund
Payments) becoming due and payable after the Possessory Date:
(a) for each month or portion thereof that
occurs during the period (the "Initial Three Month
Period") commencing with the Car Pound Removal Date,
and continuing until the earlier of (i) the day
preceding the Possessory Date or (ii) the day that is
three months after the Car Pound Removal Date, the Car
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Pound Offset Amount shall be equal to 100% of the Base
Rent and PILOT (which shall be deemed to accrue on a
daily basis) becoming due and payable with respect to
a like period of time commencing on the Possessory
Date; and
(b) for each month or portion thereof that
occurs during the period beginning on the day after
the expiration of the Initial Three Month Period, and
continuing thereafter until the earlier of (i) the day
preceding the Possessory Date or (ii) the day on which
Tenant shall terminate the Lease pursuant to Section
12. 05, the Car Pound Offset Amount shall be equal to
the sum of
(x) the Car Pound Offset Amount described in
Section 12.03(a),
plus
(y) $10,000 (apportioned on the basis of
thirty (30) day months);
(such Car Pound Offset Amount being
hereafter referred to as the "Basic Penalty
Offset"); provided, however, that
(A) for each month or portion of a
month after the Car Pound Completion Date the Car
Pound Offset Amount shall be equal to 200% of the
Basic Penalty Offset (for purposes hereof, the "Car
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Pound Completion Date" means (x) the earlier to occur
of (i) the date on which Landlord shall have completed
construction of an interim or permanent relocation Car
Pound or (ii) the date on which Landlord would have
completed construction of an interim or permanent
relocation Car Pound but for Landlord's willful
failure to prosecute such construction with due
diligence after commencement thereof or (y), with
respect to the interim relocation Car Pound
constructed by Tenant pursuant to a Self-Help Notice,
the date Tenant shall have completed construction of
such interim relocation Car Pound;
(B) if Tenant has given the Self-Help
Notice, and if within six (6) months thereafter Tenant
shall have failed to complete construction of the
interim relocation Car Pound (provided that such
six-month period shall be extended in respect of any
delays in completion due to Tenant's failure to use
reasonable and diligent efforts or due to acts of God
(including, without limitation, catastrophic weather
conditions (but excluding soil conditions), fire or
casualty), then, upon the expiration of such six-month
period (as such six-month period may be extended as
specifically provided in this subsection
12.03(b)(x)(B):
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(i) for each month or portion thereof
for the period commencing on the day after
the expiration of such six-month period (as
such six-month period may be extended as
specifically provided in this subsection
12.03(b)(x)(B)) and continuing thereafter
until the day that is six (6) months after
the expiration of such six-month period (as
such six-month period may be extended as
specifically provided in this subsection
12.03(b)(x)(B)), the Car Pound Offset Amount
shall be equal to one hundred fifty percent
(150%) of the Basic Penalty Offset, and
(ii) for each month or portion thereof
during the period commencing with the day
after the end of the period specified in the
immediately preceding clause (i) (provided
Tenant's failure to complete construction
during such period was not due to Tenant's
failure to use reasonable and diligent
efforts or due to acts of God (including,
without limitation, catastrophic weather
conditions, (but excluding soil conditions),
fire or casualty) and continuing until the
completion of construction by the Tenant of
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the interim relocation Car Pound, the Car
Pound Offset Amount shall be equal to 200%
of the Basic Penalty Offset; and
(C) if Tenant has given the Self-Help
Notice within six (6) months before or after the
second anniversary of the Lease Execution Date and
Landlord has certified that completion of construction
of a permanent relocation Car Pound and causing the
Possessory Date to occur would not require more than
an additional ninety (90) days after the date of the
Self-Help Notice, then during such 90-day period (but
only if Landlord fails to cause the Possessory Date to
occur before the expiration of such 90-day period),
the Car Pound Offset Amount shall be equal to one
hundred fifty percent (150%) of the Basic Penalty
Offset.
(e) The foregoing liquidated damage amounts are
fixed in consideration of the material harm and damage
that Tenant will sustain if the Possessory Date is
delayed because the Car Pound is not removed from the
Premises, it being recognized that the exact amount of
damage is impossible to ascertain, and Tenant shall
have no other or additional right to monetary damages
or compensation by reason of such delay in the
Possessory Date.
Section 12.04. Tenant's Self-Help Remedy.
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(a) If the Possessory Date shall not have
occurred on or prior to the Car Pound Removal Date,
Tenant, at its sole election, may give Landlord
written notice (the "Self-Help Notice") at any time
after the Car Pound Removal Date, but prior to the
first (1st) anniversary of the Car Pound Removal Date,
that Tenant elects to construct pursuant to Funding
Agreement #3 an interim relocation Car Pound at the
South Brooklyn Marine Terminal site described in
Exhibit J or such other site in the City as Landlord
may select if events have occurred after the date of
this Lease that make it no longer feasible in
Landlord's judgment to construct an interim relocation
Car Pound at the South Brooklyn Marine Terminal site
(the "Temporary Car Pound Relocation Site"); provided,
however, that with respect to any other site selected
by Landlord in accordance with the foregoing, Landlord
shall represent and warrant to Tenant that the
construction of an interim relocation Car Pound shall
be capable of being completed by a date not later than
the date that construction of an interim relocation
Car Pound at the South Brooklyn Marine Terminal site
could have been completed. Notwithstanding the
foregoing, if Tenant gives a Self-Help Notice within
three (3) months before or after the second
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anniversary of the Lease Execution Date, and if
Landlord certifies in good faith that completion of
construction of a permanent relocation Car Pound and
causing the Possessory Date to occur will not require
more than an additional ninety (90) days after the
date of the Self-Help Notice, Tenant shall not
commence construction of an interim relocation Car
Pound unless the Possessory Date shall not have
occurred upon or prior to the expiration of such
90-day period.
(b) If pursuant to the Self-Help Notice Tenant
commences construction of the interim relocation Car
Pound at the Temporary Car Pound Relocation Site, and
as a result thereof Tenant is entitled to any Funding
under Funding Agreement #3, then, if and to the extent
that EDC defaults in providing any such Funding,
Tenant shall have the right to offset all such
defaulted Funding against future installments of
Rental (excluding Impositions, but including College
Point Improvement Fund Payments) as provided in
Sections 3.06 and 4.01(a).
Section 12.05. Tenant's Right to Terminate the Lease.
If the Possessory Date shall not have occurred on or prior to
the later to occur of (i) the first (1st) anniversary of the
Car Pound Removal Date or (ii) if Tenant has given the
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Self-Help Notice, the first (1st) anniversary of the delivery
of the Self-Help Notice, Tenant may give written notice to
Landlord of its election to terminate this Lease; provided,
however, that, even if Tenant has given the Self-Help Notice it
shall nonetheless have the right to terminate this Lease at any
time after the first (1st) anniversary of the Car Pound Removal
Date, but if Tenant elects to terminate this Lease prior to the
first (1st) anniversary of the delivery of the Self-Help
Notice, such termination shall not be effective unless and
until Tenant shall have repaid to EDC all Funding received by
Tenant under Funding Agreement #3.
Section 12.06. Interim Car Pound. Notwithstanding
anything to the contrary contained in this Lease, in the event
that either (i) Tenant gives Landlord the Car Pound Removal
Notice at any time on or before December 1, 1994 or (ii) Tenant
gives Landlord the Car Pound Removal Notice at any time after
December 1, 1994 and Landlord fails within thirty (30) days
thereafter to certify in writing to Tenant that it believes in
good faith that completion of the permanent relocation Car
Pound and causing the Possessory Date to occur will not require
more than six (6) months after the date of the Car Pound
Removal Notice, then Landlord, in furtherance of its
obligations pursuant to Section 12.01 hereof, shall promptly
after the receipt of the Car Pound Removal Notice commence
construction of an interim relocation Car Pound, which interim
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relocation Car Pound shall be constructed by Landlord at the
South Brooklyn Marine Terminal site unless events have occurred
after the date of this Lease that make it no longer feasible
for Landlord to construct an interim relocation Car Pound at
the South Brooklyn Marine Terminal site.
Section 12.07. Interim Car Pound License. Landlord
hereby grants to Tenant a license, which will become effective
in the event that Tenant delivers the Self-Help Notice and
Landlord designates the Temporary Car Pound Relocation Site, to
enter the Temporary Car Pound Relocation Site for all of the
purposes set forth in Funding Agreement #3. The term of this
license shall extend until such time that Tenant has completed
its obligations at the Temporary Car Pound Relocation Site
pursuant to Funding Agreement #3 and shall not be terminated or
revoked by Landlord prior to such time unless Funding Agreement
#3 is terminated in accordance with its terms.
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ARTICLE 13
CONSTRUCTION WORK
Section 13.01. Construction of the Project.
(a) Commencement and Completion of Project.
Tenant shall Commence Construction of the Project not later
than the Outside Commencement Date, and Substantially Complete
at least a Minimum Printing Facility on or before the Scheduled
Completion Date.
(b) Definitions.
(i) "Commence Construction of the Project"
or "Commencement of Construction of the Project" means
the commencement of the driving of piles at the
Project. Commencement of Construction of the Project
shall not be deemed to have occurred merely because
Tenant has commenced or performed any of the following
functions (herein referred to as "Preliminary Site
Work"); (1) physical surveys of the site and other
functions of an investigatory nature, (2) Geotechnical
investigations including, without limitation, the
driving of a "split spoon" into the ground to
determine the ability of the soil to support a
structure, (3) the bringing on to the Premises of
temporary construction structures and trailers,
(4) removing debris from and grading and leveling the
site, (5) the filling, rough grading and compaction of
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the site to provide for a particular building
elevation, (6) drainage construction and site grading
and pavement and (7) the placement and storage of
equipment and construction materials at the Premises.
(ii) "Construction Commencement Date" means
the date of Commencement of Construction of the
Project. The Construction Commencement Date shall be
established by delivery to Landlord of a certification
from the Architect or Engineer of Record that the
commencement of the driving of piles at the Project
has occurred.
(iii) "Construction of the Project" means the
construction on the Land of the Project, in accordance
with the approved Plans and Specifications.
(iv) "Outside Commencement Date" means the
tenth (10th) anniversary of the Lease Execution Date,
which date shall be extended as the result of
Unavoidable Delays.
(v) "Plans and Specifications" means the
drawings and plans and specifications for the Project
or any portion or phase of the Project, prepared by
the Architect, complying with Section 13.01(e), and
approved pursuant to Section 13.01(c) and/or (d) as
such plans and specifications and drawings may be
modified, amended and supplemented from time to time
in accordance with the terms of this Lease.
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(vi) "Reviewable Features" means, with
respect to any submission of proposed Plans and
Specifications, features of such submission the review
of which is necessary to enable Lease Administrator to
determine:
(A) compliance with Requirements set forth
in the Urban Renewal Plan to the extent that such
Requirements are applicable to the Project, and
(B) the number of square feet of Gross
Building Area to be constructed.
(vii) "Scheduled Completion Date" means the
date that is thirty (30) days after notice from
Landlord given to Tenant at any time on or after the
fourth (4th) anniversary of Commencement of
Construction of the Project, which date shall be
extended as the result of Unavoidable Delays.
(viii) "Substantial Completion" or
"Substantially Complete(d)" means, the completion of
construction of an enclosed envelope of floor space,
environmentally controlled and containing (1) heating,
ventilating and air conditioning systems installed for
general-purpose or multi-purpose occupancy, (2) water,
sewer and sanitary facilities suitable for
multi-purpose occupancy, (3) electrical service,
including interior lighting, throughout the
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constructed structure suitable for general purpose or
multi-purpose occupancy, (4) fire detection and
protection and safety facilities suitable for
general-purpose or multi-purpose occupancy throughout
the structure, and (5) building shell construction
constructed to a level adequate to permit
build-to-suit occupancy with interior and exterior
walls and required for structural integrity; provided,
however that such structure need not include
production systems and the specific construction
features required to make the above described utility
system operational in the production of newspapers.
Substantial Completion shall be established by
delivery to Landlord of a certification from the
Architect or Engineer of Record that the
above-described structure shall have been constructed
in accordance with the Plans and Specifications
(subject to immaterial deviations) and any other
construction documents filed with the Buildings
Department, and the Substantial Completion Date shall
be established by the date of delivery of such
certification.
(c) Landlord Review of Plans. At least twenty-five
(25) days prior to the Commencement of Construction of the
Project, Tenant shall submit proposed Plans and Specifications
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for the Project to Lease Administrator for review and approval
of Reviewable Features, except that Tenant may submit proposed
Plans and Specifications for each phase or segment of
construction at least twenty-five (25) days before Commencement
of Construction of the portion of the Project described therein
if Tenant elects to submit the Plans and Specifications in a
phased sequence. The Plans and Specifications shall be
prepared in accordance with all applicable requirements of the
Buildings Department (including, without limitation, the
requirements of the New York City Building Code) and all other
applicable Requirements and, unless previously submitted, shall
be accompanied by a letter from the Architect or the Engineer
of Record stating that the facility contemplated by such Plans
and Specifications to be constructed, if constructed in
accordance with the specifications set forth in such Plans and
Specifications, is designed to accommodate the printing presses
and other equipment that Tenant has informed such Architect or
Engineer of Record that it intends to install at the facility
contemplated by such Plans and Specifications. The Plans and
Specifications shall, in addition, be prepared, to the extent
reasonably practicable, in such manner as to clearly show
(either graphically or by appropriate notes) that all elements
of the design conform to the Urban Renewal Plan to the extent
that such requirements are applicable to the Project. Lease
Administrator's review and approval of the Plans and
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Specifications as provided in this Section 13.01(c) shall be
limited to Reviewable Features, and Lease Administrator's
approval, shall not be unreasonably withheld. Notwithstanding
anything to the contrary contained herein, Landlord
acknowledges and agrees that (i) subject to Tenant's obligation
to submit more complete Plans and Specifications at a later
date, Plans and Specifications submitted to Lease Administrator
pursuant to the terms of this Section 13.01(c) need not be
completed to the extent needed by the Buildings Department to
issue a building permit, but should, in any event, be completed
to the extent needed by the Buildings Department to issue a
foundation permit and (ii) Plans and Specifications submitted
to Lease Administrator in a phased sequence pursuant to the
terms hereof need not show compliance with all Requirements set
forth in the Urban Renewal Plan that are applicable to the
Project (subject to Tenant's ultimate obligation to submit
Plans and Specifications which, in the aggregate, show
compliance with all such Requirements), but should, in any
event, show compliance with all such Requirements of the Urban
Renewal Plan that could be violated by construction pursuant to
the Plans and Specifications for the particular phase of
construction submitted to Lease Administrator (e.g., Tenant
shall have the right to submit Plans and Specifications for the
construction of a building prior to finalizing its landscaping
and signage design, in which event such Plans and
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Specifications (x) would be required to demonstrate compliance
with setback and building exterior materials Requirements of
the Urban Renewal Plan, but (y) would not be required to
demonstrate compliance with signage and landscaping
Requirements of the Urban Renewal Plan).
Lease Administrator shall approve or, if and to the extent that
the Plans and Specifications are not in compliance with the
Requirements of the Urban Renewal Plan which are required to be
shown on such Plans and Specifications pursuant to the
immediately preceding sentence or are not for a facility
containing at least the square footage of foundation and floor
area required for the Minimum Printing Facility, disapprove and
comment on such submission within twenty-five (25) days after
receipt thereof and, if approved, shall, concurrently with
notification to Tenant of such approval, advise the Buildings
Department and any other applicable Governmental Authority of
such approval. If Lease Administrator has disapproved any
submission of the Plans and Specifications or any portion or
aspect thereof, such disapproval shall be given to Tenant in
writing in a detailed manner setting forth the reasons for such
disapproval within such twenty-five (25) day period. Any
portions or aspects of the Plans and Specifications which Lease
Administrator has not disapproved and commented on as aforesaid
shall, upon the expiration of such twenty-five (25) day period,
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be deemed approved. If the portions or aspects that have been
approved or deemed approved constitute an independent element
of the Project, Lease Administrator shall promptly advise the
Buildings Department and any other applicable Governmental
Authority of such approval. Tenant shall submit to Lease
Administrator modified proposed Plans and Specifications with
respect to any portions or aspects of such Plans and
Specifications that are disapproved and commented on by Lease
Administrator, responsive to such comments that are given to
Tenant with respect to such disapproval, for Lease
Administrator's approval or further disapproval and comment,
until approved by Lease Administrator. Lease Administrator
shall approve or disapprove and comment on such subsequent
submission within fifteen (15) days after receipt thereof and,
if approved, shall, concurrently with notification to Tenant of
such approval, advise the Buildings Department and any other
applicable Governmental Authority of such approval.
(d) Modification of Approved Plans and
Specifications. If Tenant desires to modify the Plans and
Specifications, after they have been approved, Tenant shall
submit the revisions to Landlord. Landlord shall review such
submission as if such were an initial submission under Section
13.01(c), and the provisions thereof governing such a
submission shall apply, except that the period of fifteen (15)
days shall be substituted for the twenty-five (25) day period
set forth in Section 13.01(c) hereof.
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(e) Compliance with Requirements, Etc. The Plans and
Specifications shall comply with all applicable Requirements,
subject to the provisions hereof relating to the submission of
Plans and Specifications in a phased sequence. It shall be
Tenant's responsibility to assure such compliance. Landlord's
approval of the Plans and Specifications shall not be, nor
shall be construed as being, or relied upon as, a determination
as to the adequacy or sufficiency, structural or otherwise, of
the Plans and Specifications or of the compliance of such Plans
and Specifications with the Requirements (other than the Urban
Renewal Plan).
(f) Landlord's Right to Visit Premises. Landlord
shall have the right to visit the Premises at reasonable
intervals upon reasonable advance notice to Tenant.
(g) Arbitration of Plan Disapproval. In the event
that Tenant disputes whether Landlord has acted reasonably in
withholding its approval of Plans and Specifications or
modifications or resubmissions of Plans and Specifications,
Tenant shall have the right to submit such dispute to
arbitration pursuant to the provisions of Article 34 hereof,
and such Plans and Specifications or modifications or
resubmissions thereof shall be deemed approved if the Arbiter
determines that Landlord has acted unreasonably.
(h) Offset Against Rental.
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(i) In the event that Plans and
Specifications or modifications or resubmissions
thereof are deemed approved pursuant to the terms
hereof because Landlord has not responded timely,
Tenant shall give notice to Landlord advising Landlord
that such plans are deemed approved, and if Landlord
has not advised the Buildings Department and any
applicable Reviewing Party of such approval within
ten (10) days after the giving of such notice by
Tenant, then Tenant shall be entitled to an offset
against future installments of Rental (excluding
Impositions and College Point Improvement Fund
Payments) payable hereunder in an amount (the "Plans
and Specifications Offset Amount") equal to $1,000 for
each day during the period commencing on the day
immediately following the expiration of such ten (10)
day period and ending on the day on which Landlord
advises the Buildings Department and any applicable
Reviewing Party of such approval.
(ii) In the event that Landlord approves the
Plans and Specifications or modifications or
resubmissions thereof and Landlord fails to advise the
Buildings Department and any applicable Reviewing
Party of such approval within ten (10) days after such
approval, then Tenant shall be entitled to an offset
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against future installments of Rental (excluding
Impositions and College Point Improvement Fund
Payments) payable hereunder in an amount equal to the
Plans and Specifications Offset Amount for each day
during the period commencing on the day immediately
following the expiration of such ten (10) day period
and ending on the day on which Landlord advises the
Buildings Department and any applicable Reviewing
Party that such Plans and Specifications have been
approved.
(iii) In the event that Plans and
Specifications or modifications or resubmissions
thereof are deemed approved because an Arbiter
determines that Landlord has acted unreasonably in
withholding its approval thereof, and Landlord fails
to notify the Buildings Department and any applicable
Reviewing Party of such approval within ten (10) days
after the rendering of the Arbiter's decision to such
effect, then Tenant shall be entitled to an offset
against future installments of Rental (excluding
Impositions and College Point Improvement Fund
Payments) payable hereunder in an amount equal to the
Plans and Specifications Offset Amount for each day
during the period commencing on the day Tenant gives a
Dispute Notice in connection with Landlord's
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withholding of approval and ending on the day on which
Landlord notifies the Buildings Department and any
applicable Reviewing Party that such Plans and
Specifications or modifications or resubmissions
thereof have been approved.
Section 13.02. Subsequent Construction Work. If any
Subsequent Construction Work involves work that would affect
the Reviewable Features, Tenant shall submit to Landlord at
least twenty (20) days before commencement of such Subsequent
Construction Work all of the plans and specifications for the
proposed Subsequent Construction Work, in reasonable detail
(all aspects of such plans and specifications which describe,
involve or may affect in any way Reviewable Features shall be
subject to review and approval or disapproval by Landlord in
accordance with the provisions of Section 13.01(d) as a
modification of the approved Plans and Specifications and
deemed approved if Landlord does not disapprove such Plans and
Specifications within fifteen (15) days after their submission
to Landlord). If any Subsequent Construction Work involves an
expansion of the foundation, Tenant shall also submit a letter
from the Architect or Engineer of Record with respect to such
expansion substantially similar to the letter required by the
second sentence of Section 13.01(c) hereof;
Section 13.03. [Intentionally Omitted].
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Section 13.04. Supervision of Architect. All
Construction Work in connection with the Construction of the
Project shall be carried out under the supervision of an
Architect.
Section 13.05. Conditions Precedent to Tenant's
Commencement of All Construction Work.
(a) Permits and Insurance. Tenant shall not
commence any Construction Work unless (i) Tenant shall have
obtained and delivered to Landlord copies of all necessary
permits, consents, certificates and approvals of Governmental
Authorities, and (ii) Tenant shall have delivered to Landlord
copies, certificates or memoranda of the policies of insurance
required to be carried pursuant to the provisions of Article 7.
(b) Cooperation of Landlord in Obtaining Permits and
Granting Easements. Landlord shall cooperate with Tenant in
obtaining the permits, consents, certificates and approvals
required by Section 13.05(a) and shall grant any necessary
easements (subject to Tenant's obligation to grant or join in
the granting of any such easements as the result of the
leasehold interest conveyed to Tenant by this Lease),
including, without limitation, utility and sewer easements and
shall not unreasonably withhold or delay its signature on any
application made by Tenant required to obtain such permits,
consents, certificates, approvals and easements. Tenant shall
reimburse Landlord within ten (10) days after Landlord's demand
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for any third-party out-of-pocket cost or expense incurred by
Landlord in obtaining or granting the permits, consents,
certificates and approvals required by Section 13.05(a) and any
necessary easements; provided that Landlord shall have given
Tenant reasonable advance notice of the need to incur such
third-party out-of-pocket costs and an opportunity to amend
Tenant's request to avoid the need for such third-party,
out-of-pocket costs.
(c) Approval of Plans and Specifications. Tenant
shall neither (i) commence Construction of the Project unless
and until Landlord shall have approved (or been deemed to have
approved) the Plans and Specifications as required above, nor
(ii) if applicable to the Subsequent Construction Work being
performed, commence any Subsequent Construction Work, unless
and until Landlord shall have reviewed and, if required
pursuant to the specific provisions of this Lease, approved (or
been deemed to have approved) the proposed plans and
specifications in the manner provided herein.
Section 13.06 Completion of Construction Work. Upon
substantial completion of any Construction Work the plans and
specifications for which were required to be approved by
Landlord, Tenant shall furnish Landlord with (a) a
certification of the Architect that it has examined the
applicable plans and specifications and that, in its
professional judgment, after diligent inquiry, to its actual
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knowledge and belief, the Construction Work has been
substantially completed in accordance with the plans and
specifications applicable thereto, (b) a copy or copies of all
Certificate(s) of Occupancy for the Improvements issued by the
Buildings Department in Tenant's possession, and (c) a complete
set of "as built" plans and a survey showing the Improvements
or, if "as built" plans are not available, a complete set of
the Plans and Specifications with all addenda thereto and
changes in respect thereof, marked to show all additions,
deletions, changes and selections made during the course of
Construction Work. Tenant's agreement with the Architect shall
provide that Landlord shall have a license to use such "as
built" plans (or submission in lieu thereof as provided
herein), subject to any commercially reasonable reservations or
restrictions reserved by the Architect including, without
limitation, copyright and similar rights of the Architect to
prohibit use of designs for purposes unrelated to the
Improvements, as such rights exist in law or may appear in the
Architect's contract, as well as payment of any moneys that are
owed to the Architect with respect to the Project.
Section 13.07. Title to the Improvements and
Materials. Title to the Improvements (including without
limitation the Project) shall be and vest in Landlord.
Materials to be incorporated in the Project, shall, effective
upon their purchase and at all times thereafter, constitute the
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property of Landlord, and upon Construction of the Project or
any Construction Work, or the incorporation of such materials
therein, title thereto shall be and continue in Landlord
subject to this Lease. However, (a) Landlord shall not be
liable in any manner for payment or otherwise to any
contractor, subcontractor, laborer or supplier of materials in
connection with the purchase of any such materials, and (b)
Landlord shall have no obligation to pay any compensation to
Tenant by reason of its acquisition of title to the materials,
and (c) under no circumstances shall title to any Tenant's
Property vest in Landlord.
Section 13.08. [Intentionally Omitted].
Section 13.09. Construction Agreements.
(a) Required Clauses. All Construction
Agreements shall include the following provisions:
(i) "["Contractor"] ["Subcontractor"]
["Materialman"] hereby agrees that
immediately upon the purchase from
["contractor"] ["subcontractor"]
["materialman"] of any building materials to
be incorporated in the Project (as defined
in the lease pursuant to which the contract
purchaser hereunder acquired a leasehold
interest in the property (the "Lease")),
such materials shall become the sole
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property of the City of New York,
notwithstanding that such materials have not
been incorporated in, or made a part of,
such Project at the time of such purchase;
provided, however, that neither EDC (as
defined in the Lease) nor the City of New
York shall be liable in any manner for
payment or otherwise to ["contractor"]
["subcontractor"] ["materialman"] by reason
of such materials becoming the sole property
of the City of New York."
(ii) "["Contractor"] ["Subcontractor"]
["Materialman"] hereby agrees that
notwithstanding that ["contractor"]
["subcontractor"] ["materialman"] performed
work at the Premises (as such term is
defined in the Lease) or any part thereof,
neither EDC (as defined in the Lease) nor
the City of New York shall be liable in any
manner for payment or otherwise to
["contractor"] ["subcontractor"]
["materialman"] in connection with the work
performed at the Premises.
(iii) "The City of New York and EDC (as defined in
the Lease) are not parties to this
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["agreement"] ["contract"] and will not be
responsible to any party for any claims of
any nature whatsoever arising or which may
arise from such ["contract"] ["agreement"]."
(b) Definition.
"Construction Agreement(s)" means a written
agreement to do any Construction Work.
Section 13.10. Consent for Demolition. Tenant shall
have the right to demolish any Improvements during the Term
without the consent of Landlord, provided that such demolition
will not permanently (subject to the provisions hereof
regarding Abandonment of the Project) restrict the use of the
remaining Improvements as at least a Minimum Printing Facility,
or a smaller Printing Facility that has substantially the same
or greater capacity with respect to the printing, production
and distribution of newspapers, magazines, and other
periodicals or printed materials as the Minimum Printing
Facility. Tenant's violation of this Section l3.l0 shall
constitute an Abandonment of the Project pursuant to
subparagraph (e) of the definition of Abandonment of the
Project, but shall not constitute a default under this Lease.
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ARTICLE 14
REPAIRS, MAINTENANCE, ETC.
Section 14.01. Maintenance of the Premises, Etc.
Tenant shall take good care of the Premises, adjacent sidewalks
and curbs, and water, sewer and gas connections, and shall keep
and maintain the same in good condition, all at Tenant's sole
cost and expense. Tenant shall also comply with the
landscaping requirements of the Urban Renewal Plan.
Section 14.02. [Intentionally Omitted].
Section 14.03. Free of Dirt, Snow, Etc. Tenant, at
its sole cost and expense, shall keep clean and free from dirt,
snow, ice, rubbish, obstructions and encumbrances the sidewalks
and all other areas and spaces located in front of, or
adjacent to, the Premises for which Tenant would be so
responsible by law if it were the fee owner of the Premises.
Section 14.04. No Obligation of Landlord To Repair or
to Supply Utilities. Subject to the provisions of Article 27
hereof, Landlord shall not be required (except to the extent,
if any, that the City in its governmental capacity, may be
legally required) to supply any facilities, services or
utilities whatsoever to the Premises and shall not have any
duty or obligation to make any alteration, change, improvement,
replacement, Restoration or repair to the Improvements, and
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Tenant assumes the full and sole responsibility for the
condition, operation, alteration, change, improvement,
replacement, Restoration, repair, maintenance and management of
the Premises.
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ARTICLE 15
CAPITAL IMPROVEMENTS
Section 15.01. Capital Improvements.
(a) Tenant's Right to Make Capital
Improvements. Effective upon Substantial Completion of the
Project, Tenant shall have the right to make Capital
Improvements; provided that Tenant shall comply with the
applicable provisions of Article 13 and Article 16.
(b) Definition.
"Capital Improvement" means a change, alteration,
or addition to or replacement of the Improvements, other than
Construction of the Project or a Restoration.
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ARTICLE 16
REQUIREMENTS OF GOVERNMENTAL AUTHORITIES
Section 16.01. Requirements.
(a) Obligation to Comply. In connection with
any Construction Work, and with the maintenance, management,
use and operation of the Premises and Tenant's performance of
its obligations hereunder, Tenant shall, subject to the
provisions of Section 35.03, comply or take all appropriate
measures to attempt to comply with all Requirements. No
consent to, approval of, or acquiescence in any plans or
actions of Tenant by Landlord, if any, shall be relied upon or
construed as being a determination that such are in compliance
with the Requirements, or in the case of construction plans, a
determination that such are structurally, architecturally or by
any other standard technically correct; provided that,
notwithstanding anything to the contrary contained herein, any
plans and specifications approved by EDC shall be deemed to
comply with the Urban Renewal Plan.
(b) Definition.
"Requirements" means:
(i) any and all laws, rules, regulations,
orders, ordinances, statutes, codes, executive orders
and requirements of all Governmental Authorities
(currently in force or hereafter adopted) applicable
to the Premises or any street, road, avenue or
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sidewalk comprising a part of the Premises, or
adjacent to the Premises to the extent the owner of
the Premises would have legal responsibility therefor
(including, without limitation, the City Zoning
Resolution, the Building Code of New York City and the
laws, rules, regulations, orders, ordinances,
statutes, codes and requirements of any applicable
Fire Rating Bureau or other body exercising similar
functions) and the Urban Renewal Plan; and
(ii) the Certificate(s) of Occupancy issued
for the Project as then in force.
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ARTICLE 17
DISCHARGE OF LIENS; BONDS
Section 17.01. Creation of Liens. Subject to the
provisions of Article 11, Section 13.05(b) and Section 17.02
hereof, Tenant shall not create, cause to be created, or suffer
or permit to remain, a lien, encumbrance or charge upon this
Lease, the leasehold estate created hereby, the income
therefrom or the Premises or any part thereof other than as
specifically permitted by this Lease, unless such liens,
encumbrances or charges are subordinate to the interest of
Landlord in the Premises. The loss by Tenant of its interest
in this Lease through the foreclosure of any such subordinate
lien, encumbrance or charge shall constitute an Event of
Default, subject, however, to the provisions of Article 11.
Section 17.02. Discharge of Liens. If any mechanic's,
laborer's, vendor's or materialman's lien is filed against the
Premises or any part thereof and the aggregate amount of such
liens exceeds $500,000, or if any public improvement lien
created, or caused or suffered to be created by Tenant shall
be filed against any assets of, or funds appropriated to,
Landlord, Tenant shall, within thirty (30) days after receiving
notice of the filing of such mechanic's, laborer's, vendor's,
materialman's or similar statutory lien or public improvement
lien, cause it to be vacated or discharged of record by
payment, deposit, bond, order of a court of competent
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jurisdiction or otherwise. However, Tenant shall not be
required to discharge any such lien if Tenant shall have (a)
furnished Landlord with a cash deposit, bond, personal guaranty
or other security reasonably satisfactory to Landlord, in an
amount sufficient to pay the lien with interest and penalties
and (b) brought an appropriate proceeding to discharge such
lien and is prosecuting such proceeding with diligence and
continuity; except that if despite Tenant's efforts to seek
discharge of the lien Landlord reasonably believes such lien is
about to be foreclosed and so notifies Tenant, Tenant shall
within five (5) Business Days after receipt of such notice,
commence to take appropriate steps to cause such lien to be
discharged of record or Landlord may use the security furnished
by Tenant in order to so discharge the lien.
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ARTICLE 18
REPRESENTATIONS
Section 18.01. Landlord's Representations and
Warranties. Landlord hereby warrants and represents that:
(a) Landlord has good, insurable and marketable
title to the Premises, free and clear of all liens and
encumbrances except the Permitted Encumbrances.
(b) Except for this Lease, there are no leases
or occupancy agreements affecting the Premises.
(c) There are no service, maintenance, supply or
management agreements affecting the Premises as of the date
hereof entered into by Landlord or any predecessor-in-interest
of Landlord, except for the appointment of EDC as Lease
Administrator pursuant to Article 42 hereof.
(d) Landlord has no employees engaged in work at
the Premises, except for employees of the New York City Police
Department, who will be present on Parcel C as more
particularly described in and pursuant to the terms of Section
2.02 hereof for the period expiring on the day immediately
preceding the Possessory Date.
(e) There are no taxes, assessments (including
assessments which may be paid in installments), College Point
Improvement Fund Payments, payments to any Business Improvement
District or any other amounts whatsoever which are due and
payable or which are to become due and payable or a lien, or
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both, on the Premises with respect to any period of time prior
to the Lease Execution Date.
(f) Landlord has no knowledge of any pending or
threatened condemnation or similar proceeding affecting the
Premises or any portion thereof, or pending public improvements
in or adjoining the Premises which will adversely affect the
Premises; provided, however, that Landlord shall notify Tenant
of any such proceeding that it has knowledge of, without regard
to whether such proceeding might have an adverse effect on the
Premises.
(g) Landlord has no knowledge of any pending or
threatened legal action of any kind or character whatsoever
affecting Landlord or the Premises which will adversely affect
the Premises upon or subsequent to the Lease Execution Date.
(h) Each person executing and delivering this
Lease and all documents to be executed and delivered on behalf
of Landlord in regard to the consummation of the transaction
which is the subject of this Lease represents to Tenant that he
or she has due and proper authority to execute and deliver
same. Landlord has the full right, power and authority to sell
and convey or lease the Premises to Tenant as provided in this
Lease and to carry out its obligations set forth in this
Lease. The consummation by Landlord of the transaction which
is the subject of this Lease will not conflict with or result
in a breach of any of the terms of any agreement or instrument
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to which Landlord is a party or by which Landlord is bound or
constitute a default thereunder, and Landlord has obtained any
and all required authorizations and approvals of the execution
and delivery of this Lease, the transaction which is the
subject of this Lease, and all documents referred to in this
Lease. No other party has any right to purchase or lease the
Premises, or any part thereof.
(i) No representation or warranty by Landlord in
this Lease knowingly omits a material fact necessary to make
any representation or warranty not misleading.
(j) Landlord has not done or suffered anything
whereby the Premises has been transferred or encumbered in any
way whatsoever except for the Permitted Encumbrances.
(k) No air or development rights with respect to
the Premises have been transferred or sold, and no contract to
sell such air or development rights is outstanding, other than
this Lease.
Section 18.02. Tenant's Acknowledgment of No Other
Representations. Tenant acknowledges, represents and confirms
that it or its authorized representative has visited the
Premises and is fully familiar with the physical condition
thereof on the Lease Execution Date. Tenant confirms that:
(a) except for the Car Pound and any Hazardous
Substances that may be on or under the Land, as more
specifically set forth in Section 43.19 hereof, the Premises in
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their condition and state of repair on the Lease Execution Date
are acceptable;
(b) except as specifically set forth in this
Lease, no representations, statements, or warranties, express
or implied, have been made by, or on behalf of, Landlord or EDC
(and Tenant has not relied on any such representations,
statements or warranties) with respect to the Premises or the
transactions contemplated by this Lease, the physical condition
thereof, the zoning or other laws, regulations, rules and
orders applicable thereto or the use that may be made of the
Premises,; and
(c) Landlord shall not be liable in any event
whatsoever for any latent or patent defects in the Premises
existing on the Lease Execution Date , except for the presence
of Hazardous Substances, to the extent set forth in Section
43.19 hereof.
Section 18.03. No Payments. Tenant warrants and
represents that no officer, agent, employee or representative
of The City of New York or EDC has received for its own benefit
any payment or other consideration from Tenant for the making
of this Lease and that no officer, agent, employee or
representative of The City of New York or EDC has any interest,
directly or indirectly, in Tenant's interest in this Lease.
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ARTICLE 19
LANDLORD NOT LIABLE FOR INJURY OR DAMAGE, ETC.
Section 19.01. Landlord not Liable for Injury or
Damage, Etc.
(a) Neither Landlord (in its capacity as
Landlord as opposed to its municipal capacity) nor Lease
Administrator shall be liable for any injury or damage to
Tenant or to any Person happening on, in or about the Premises
or its appurtenances, nor shall they be liable for any injury
or damage to the Premises or to any property belonging to
Tenant or to any other Person that may be caused by fire, by
breakage, or by the use, misuse or abuse of any portion of the
Premises (including, but not limited to, any of the common
areas within the Improvements, hatches, openings,
installations, stairways or hallways or other common
facilities, and the streets or sidewalk areas within or
adjacent to the Premises) or that may arise from any other
cause whatsoever, unless caused by Landlord or Lease
Administrator or their members', agents', employees' or
contractors' negligence, misconduct or tortious acts.
(b) Neither Landlord (in its capacity as
Landlord as opposed to its municipal capacity) nor Lease
Administrator shall be liable to Tenant or to any Person for
(i) any failure of water supply, gas or
electric current,
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(ii) any injury or damage to any property of
Tenant or of any Person or to the Premises caused by
or resulting from gasoline, oil, steam, gas,
electricity, or hurricane, tornado, flood, wind or
similar storm or disturbance or by or from water, rain
or snow which may leak or flow from the street, sewer,
gas mains or subsurface area or from any part of the
Premises or by or from leakage of gasoline or oil from
pipes, appliances, sewer or plumbing works therein or
from any other place, or
(iii) any interference with light or other
incorporeal hereditaments by any Person, or caused by
any public or quasi-public work,
unless, and only to the extent of the proportion by which,
caused by Landlord's or Lease Administrator's, or their
agents', employees' or contractors' negligence, misconduct or
tortious acts.
Section 19.02. Waiver of Claims. Notwithstanding
anything to the contrary contained herein, Tenant hereby
releases Landlord with respect to any claim (including a claim
for negligence) which Tenant might otherwise have against
Landlord for loss, damage or destruction with respect to its
property occurring during the Term, but only to the extent to
which Tenant is, or is required to be, insured under a policy
or policies containing a waiver of subrogation as provided in
Section 7.02(b) hereof.
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ARTICLE 20
INDEMNIFICATION OF LANDLORD AND OTHERS
Section 20.01. Tenant's Obligation to Indemnify. From
and after the Possessory Date, Tenant shall indemnify and save
Landlord and Lease Administrator and their respective members,
officers, directors, employees, agents and servants
(collectively, the "Landlord Indemnitees") harmless from and
against any and all liabilities, suits, obligations, fines,
damages, penalties, claims, costs, charges and expenses,
including, without limitation, reasonable architects' and
attorneys' fees and disbursements, that may be imposed upon or
incurred by or asserted against any of the Landlord Indemnitees
by reason of any of the following, except that no Landlord
Indemnitee shall be so indemnified and saved harmless to the
extent of the portion by which such liabilities, etc. are
caused by the negligence, misconduct or tortious acts of any
Landlord Indemnitee:
(a) Construction Work. Construction work or any
other work or act done in, on, or about the Premises or any
part thereof;
(b) Ownership. The ownership or use, non-use,
possession, occupation, alteration, condition, operation,
maintenance or management of the Premises, adjacent sidewalks
and curbs, or water, sewer and gas connections;
(c) Acts or Failure to Act of Tenant/Subtenant.
Any act or failure to act on the part of Tenant or any
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Subtenant or any of its or their respective partners, officers,
shareholders, directors, agents, contractors, servants,
employees, or licensees with respect to the Premises, adjacent
sidewalks and curbs, or water, sewer and gas connections;
(d) Accidents, Injury to Person or Property.
Any accident, injury (including death at any time resulting
therefrom) or damage to any Person or property occurring in,
on, or about the Premises; or
(e) Default of Tenant. Any failure on the part
of Tenant to pay Rental or keep, observe and perform any of the
other terms, covenants, agreements, provisions, conditions or
limitations contained in this Lease.
Section 20.01A. Landlord's Obligation to Indemnify.
Landlord shall indemnify and save Tenant and Tenant's
Affiliates and their respective officers, directors, employees,
agents and servants (collectively, the "Tenant Indemnitees")
harmless from and against any and all liabilities, suits,
obligations, fines, damages, penalties, claims, costs, charges
and expenses, including without limitation, reasonable
architects' and attorneys' fees and disbursements, that may be
imposed upon or incurred by or asserted against any of the
Tenant Indemnitees in connection with the Premises, adjacent
sidewalks and curbs, or water, sewer and gas connections, by
reason of the negligence, misconduct or tortious acts of
Landlord or Lease Administrator or their respective partners,
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members, officers, shareholders, directors, employees, agents,
contractors or servants, except that no Tenant Indemnitee shall
be so indemnified and saved harmless to the extent of the
portion by which such liabilities, etc. are caused by the
negligence, misconduct or tortious acts of any Tenant
Indemnitee.
Section 20.02. Contractual Liability. The
obligations of Tenant and Landlord under this Article shall not
be affected in any way by the absence of insurance coverage, or
by the failure or refusal of any insurance carrier to perform
an obligation on its part under insurance policies affecting
the Premises.
Section 20.03. Defense of Claim, Etc. If any claim,
action or proceeding is made or brought against any of the
Landlord Indemnitees or the Tenant Indemnitees by reason of any
event to which reference is made in Sections 20.01 or 20.01A,
then, upon demand by Landlord or Tenant, as the case may be,
the other shall either resist, defend or satisfy such claim,
action or proceeding in such Landlord or Tenant Indemnitee's
name, by the attorneys for, or approved by, Landlord or
Tenant's insurance carrier, as the case may be (if such claim,
action or proceeding is covered by insurance) or by such other
attorneys as the indemnifying party shall select (subject to
the approval of Landlord or Tenant, as the case may be, which
approval shall not unreasonably be withheld or delayed);
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provided that the indemnifying party shall not be liable for
any settlement agreed to by any Landlord or Tenant Indemnitee
unless such settlement is approved in writing by the
indemnifying party, which approval shall not unreasonably be
withheld or delayed. The foregoing notwithstanding, such
Landlord or Tenant Indemnitee may at its own cost and expense
engage its own attorneys to defend such Landlord or Tenant
Indemnitee, or to assist such Landlord or Tenant Indemnitee in
such Landlord or Tenant Indemnitee's defense of such claim,
action or proceeding, as the case may be; provided, that
(i) such attorneys shall be subject to the approval of the
indemnifying party, which approval shall not unreasonably be
withheld or delayed (provided, however, that the approval of
the indemnifying party shall not be required with respect to
the engagement of an attorney in a strictly advisory capacity,
with no right to file an appearance, participate in
depositions, file legal papers or otherwise take an active role
in the defense) and (ii) such Landlord or Tenant's Indemnitee
shall be deemed to have waived its right to be indemnified
pursuant to the provisions of this Lease if and to the extent
that it engages its own attorneys to defend or assist in the
defense of such Landlord or Tenant Indemnitee after it has
received written notice from the indemnifying party that either
(x) the indemnifying party does not approve such attorneys or
(y) the engagement of such attorneys shall void or adversely
affect the insurance coverage of such indemnifying party.
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Section 20.04. Notice. In case any action or
proceeding be brought against any Landlord or Tenant Indemnitee
for which such Landlord or Tenant Indemnitee claims
indemnification from Tenant or Landlord, as the case may be,
pursuant to the terms of this Article 20, Landlord or Tenant,
as the case may be, shall give prompt written notice thereof to
the indemnifying party.
Section 20.05. Survival Clause. The provisions of
this Article shall survive the Expiration Date.
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ARTICLE 21
PURCHASE OPTION
Section 21.01. Purchase Option.
(a) Option. Subject to the terms and conditions
hereof, Tenant shall have the right to purchase, or to select
a designee to purchase, the Premises and all personal property
thereon belonging to Landlord (together, the "Property") at any
time after Substantial Completion of Construction of the
Initial Improvements and on or prior to the Expiration Date,
for a purchase price of six million, nine hundred thousand
dollars ($6,900,000) (the "Basic Purchase Price") as such
purchase price may be adjusted pursuant to any provision of
this Lease or the Purchase Agreement (as finally adjusted, the
"Purchase Price").
(b) Exercise of Option. Tenant may exercise its
option to purchase the Property by delivering a notice of such
election to Landlord (the "Purchase Notice"). The Purchase
Notice shall include the designation of a closing date (the
"Closing Date") for the purchase, which shall be a business
day not less than forty-five (45) nor more than one hundred
eighty (180) days after the date of the Purchase Notice.
(c) Notice of Failure to Exercise. In the event
that Tenant shall not have delivered the Purchase Notice (or a
notice that Tenant does not intend to exercise its option to
purchase the Property) on or before the date that is
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ninety (90) days prior to the expiration of the Term, Landlord
shall deliver a notice to Tenant advising Tenant that Tenant
has failed to exercise its option to purchase the Property and
that such option shall be forfeited if not exercised by the
date that is forty-five (45) days after the date of such notice
(the "Failure to Exercise Notice"). In the event that Landlord
fails to deliver the Failure to Exercise Notice by the date
that is ninety (90) days prior to the expiration of the Term,
the Term shall be automatically extended to the date that is
ninety (90) days after the date of the Failure to Exercise
Notice.
(d) Agreement of Sale and Purchase. Promptly
after delivering the Purchase Notice, Tenant shall deliver to
Landlord four (4) duplicate originals of the Agreement of Sale
and Purchase (the "Purchase Agreement") substantially in the
form annexed hereto as Exhibit K, executed by Tenant or
Tenant's designee. Tenant shall only make such changes to
Exhibit K hereto as may be necessary to (i) insert the parties
to the Purchase Agreement, (ii) modify the Purchase Price, if
and to the extent required by any provision of this Lease,
(iii) designate the Closing Date, (iv) designate the Title
Company, (v) complete any items left blank in Exhibit K,
(vi) indicate whether Tenant or Tenant's designee elects to
take an assignment of the Lease, (vii) provide for compliance
with any applicable future laws, rules or regulations
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including, without limitation, those relating to the filing or
submission of tax forms or returns and time periods in
connection therewith, (viii) provide any provisions necessary
to enable Tenant or Tenant's designee to obtain title insurance
from the Title Company at prevailing rates, without excess
premium and (ix) include any provisions mutually agreed upon by
Landlord and Tenant. The Purchase Agreement shall be deemed
executed and delivered by Landlord, as Seller, upon delivery to
Landlord of such executed originals thereof; provided, however,
that Landlord hereby agrees to execute, as Seller, and deliver
to Tenant or Tenant's designee two (2) duplicate originals of
the Purchase Agreement within ten (10) Business Days following
delivery of the Purchase Agreement to Landlord as confirmation
of such deemed execution and delivery. Landlord hereby agrees
that if Landlord fails to execute and deliver to Tenant or
Tenant's designee two (2) fully-executed duplicate originals of
the Purchase Agreement within such ten (10) Business Day
period, then Landlord hereby irrevocably constitutes and
appoints Tenant as Landlord's attorney-in-fact, coupled with an
interest, to execute and deliver the Purchase Agreement to
Tenant; provided however, that notwithstanding such execution
and delivery by Tenant acting as Landlord's attorney-in-fact,
until Landlord, acting on its own behalf, executes and delivers
two (2) fully-executed duplicate originals of the Purchase
Agreement to Tenant or Tenant's designee, Tenant shall have the
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right, but not the obligation, to obtain a mandatory injunction
from a court of competent jurisdiction directing Landlord to
execute, as Seller, and deliver to Tenant or Tenant's designee
two (2) fully-executed duplicate originals of the Purchase
Agreement; provided, however, that nothing contained herein
shall be deemed to require the issuance of any such mandatory
injunction or the execution and delivery by Landlord of the
Purchase Agreement as a precondition to making the Purchase
Agreement binding upon Landlord.
Section 21.02. Default under Purchase Agreement;
Extension of Term.
(a) Purchaser's Default. In the event that the
purchase of the Property pursuant to the Purchase Agreement is
not consummated because of the Purchaser's default thereunder,
Seller's sole remedy shall be the remedy set forth in
Section 14.2 of the Purchase Agreement and, notwithstanding
such default, this Lease shall remain in full force and effect
upon all of its terms and conditions until the expiration of
the Term, except that Tenant shall have no further option to
purchase the Property pursuant to this Article 21.
(b) Seller's Default. In the event that the
purchase of the Property pursuant to the Purchase Agreement is
not consummated because of the Seller's default thereunder or
because of Landlord's failure to execute and deliver the
Purchase Agreement, then, in addition to all of the Purchaser's
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rights and remedies under the Purchase Agreement: (i) for the
period (the "First Year Abatement Period") commencing on the
date (the "Purchase Default Date") which is the earlier to
occur of (x) the eleventh (11th) day following the giving of
the Purchase Notice if Landlord has failed to execute and
deliver the Purchase Agreement or (y) the date that Seller
defaults under the Purchase Agreement, and ending on the
earlier to occur or (1) the date that Tenant or Tenant's
designee obtains title to the Property pursuant to the
provisions of the Purchase Agreement or (2) the day immediately
preceding the first anniversary of the Purchase Default Date,
all Base Rent coming due under this Lease shall be abated in
its entirety; (ii) Land PILOT and Improvements PILOT payable
during the First Year Abatement Period shall be payable in
arrears in quarterly installments equal to the last amount of
such quarterly installments paid immediately prior to the
Purchase Default Date; (iii) for the period (the "Remaining
Abatement Period") commencing on the first anniversary of the
Purchase Default Date and ending on the date that Tenant or
Tenant's designee obtains title to the Property pursuant to the
provisions of the Purchase Agreement, all Base Rent, Land PILOT
and Improvements PILOT coming due under this Lease shall be
abated in their entirety; (iv) in the event that Tenant or
Tenant's designee has not obtained title to the Property
pursuant to the provisions of the Purchase Agreement prior to
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the scheduled expiration of the Term, this Lease shall
automatically be extended for an additional term, not to exceed
ninety-nine (99) years, which shall expire and come to an end
on the earlier to occur of (x) the date on which Tenant or
Tenant's designee obtains title to the Property pursuant to the
provisions of the Purchase Agreement or (y) the date specified
by Tenant in a notice to Landlord electing to terminate such
extended Term, such extended Term to be upon all of the terms
and conditions set forth in this Lease, except that Rental
payable hereunder shall be abated in accordance with the
provisions of this Section 21.02(b) and Landlord shall be
responsible for any and all taxes, fees or charges of any
nature whatsoever in connection with such extension of the
Term, including, without limitation, any and all transfer or
gains taxes, regardless of whether such taxes, charges or fees
would customarily be the responsibility of the lessor or the
lessee, (v) Landlord hereby irrevocably constitutes and
appoints Tenant as Landlord's attorney-in-fact, coupled with an
interest, to take any and all steps on behalf of Landlord, all
at Landlord's sole cost and expense, that may be necessary to
consummate the sale of the Property to Tenant or Tenant's
designee pursuant to the terms of the Purchase Agreement
including, without limitation, the execution of the Deed
annexed to the Purchase Agreement as Exhibit G and (vi) Tenant
shall have the right to obtain a mandatory injunction from a
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court of competent jurisdiction directing Landlord to take any
and all steps that may be necessary to consummate the sale of
the Property to Tenant or Tenant's designee pursuant to the
provisions of the Purchase Agreement.
(c) Extension of Term. In the event that Tenant
exercises its option to purchase the Property pursuant to the
provisions of this Article 21 and the Closing (as that term is
defined in the Purchase Agreement) does not take place prior to
the originally scheduled date for the expiration of the Term
for any reason other than the breach by Landlord of its
obligations pursuant to Sections 21.01(d) or 21.02(b) hereof
(in which event the provisions of Sections 21.01(d) or
21.02(b), respectively, shall govern), the Term shall
automatically be extended to the date that is the earlier to
occur of (i) the date on which the Closing occurs and (ii) the
date on which the Purchase Agreement is terminated due to the
default of the Purchaser thereunder; provided, however, that if
the Term shall be so extended pursuant to the provisions of
this Section 21.02(c) and Landlord shall thereafter breach its
obligations pursuant to Sections 21.01(d) or 21.02(b) hereof,
then all of the provisions of Sections 21.01(d) or 21.02(b),
respectively, shall immediately go into effect including,
without limitation, the provisions thereof providing for the
abatement of Rental.
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Section 21.03. Condemnation. In the event that
Tenant or Tenant's designee elects to terminate the Purchase
Agreement pursuant to Section 12.2 thereof, then (i) this Lease
shall remain in full force and effect upon all of its terms and
conditions until the expiration of the Term and
(ii) notwithstanding such election to terminate the Purchase
Agreement, Tenant's option to purchase the Property shall be
reinstated and remain in full force and effect for the duration
of the Term upon all of the terms and conditions of this
Article 21.
Section 21.04. Right to Terminate. In the event that
the Term shall be extended pursuant to the provisions of
Sections 21.02(b) hereof, Tenant shall have the right, to be
exercised in Tenant's sole discretion by written notice to
Landlord, to terminate the Term of this Lease (as so extended)
as of a date to be set forth in such written notice, in which
event (i) all of Tenant's obligations under this Lease shall
terminate as of the termination date set forth in such notice
and (ii) except with respect to Tenant's right to extend the
Term with an abatement of Rental pursuant to the provisions of
Section 21.02(b), Landlord's liability to Tenant for its breach
of the provisions of Section 21.02(b) shall not be diminished
in any manner whatsoever.
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ARTICLE 22
LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS
Section 22.01. Landlord's Right to Perform. If an
Event of Default shall occur, and the failure to cure such
Event of Default would subject Landlord to a monetary loss or
civil or criminal suit, Landlord may, but shall be under no
obligation to, perform the obligation the breach of which gave
rise to such Event of Default, without waiving or releasing
Tenant from any of its obligations contained in this Lease,
provided that Landlord shall exercise such right only after
five (5) days' prior written notice to Tenant, provided that no
such notice shall be required in the event of an emergency.
Section 22.02. Reimbursement of Amounts Paid. All
sums paid by Landlord, and all costs and expenses incurred by
Landlord in connection with the performance of any act pursuant
to Section 22. 01, together with interest thereon at the Late
Charge Rate from the respective dates of Landlord's making of
each such payment or incurring of each such sum, cost, expense,
charge, payment or deposit, to the respective dates on which
actual payment thereof is received by Landlord, in New York
Clearing House Association Funds or by wire transfer, shall
constitute Rental hereunder and shall be paid by Tenant to
Landlord on demand.
Section 22.03. Waiver, Release and Assumption of
Obligations. Any payment or performance by Landlord pursuant
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to the foregoing provisions of this Article 22 shall not be nor
be deemed to be (a) a waiver or release of the Default or Event
of Default of Tenant with respect thereto or (b) Landlord's
assumption of Tenant's obligations to pay or perform any of
Tenant's past, present or future obligations hereunder.
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ARTICLE 23
USE OF THE PREMISES
Section 23.01. Permitted Uses.
(a) Subject to the provisions of Article 28
hereof regarding Abandonment of the Premises and the
consequences thereof, Tenant shall have the right to use the
Premises for any lawful purpose permitted by the Urban Renewal
Plan.
Section 23.02. Prohibited Uses. Tenant shall not use
or occupy the Premises, or permit or suffer the Premises or any
part thereof to be used or occupied in violation of the
certificate(s) of occupancy for the Improvements or the Urban
Renewal Plan. Promptly after its discovery of any such use or
occupation in violation of the certificate(s) of occupancy for
the Improvements or the Urban Renewal Plan, Tenant shall take
all reasonably necessary steps to discontinue such use or
purpose.
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ARTICLE 24
EVENTS OF DEFAULT, CONDITIONAL
LIMITATIONS, REMEDIES, ETC.
Section 24.01. Definition. Subject to the provisions
of Article 11 hereof, each of the following events shall be an
"Event of Default" hereunder:
(a) if Tenant shall fail to make any payment (or
any part thereof) of Rental as due hereunder and such failure
shall continue for a period of twenty (20) days after Tenant's
receipt of notice thereof from Landlord;
(b) if Tenant shall fail to Commence
Construction of the Initial Improvements on or before the
Outside Commencement Date;
(c) if Tenant shall fail to Substantially
Complete the Construction of the Initial Improvements on or
before the Scheduled Completion Date and if such failure shall
continue for a period of thirty (30) days after notice (unless
such failure requires work to be performed, acts to be done or
conditions to be removed which cannot, by their nature,
reasonably be performed, done or removed within such thirty
(30) day period, in which case no Event of Default shall exist
as long as Tenant shall have (a) commenced curing the same
within the thirty (30) day period and (b) shall diligently and
continuously prosecute the same to completion within a
reasonable period);
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(d) if Tenant shall enter into (or permit to be
entered into) a Transfer or any other transaction without
compliance with any provisions of Article 10 of this Lease and
such Transfer or other transaction shall not be made to comply
with the provisions of this Lease or canceled within thirty
(30) days after Landlord's notice thereof to Tenant (unless
making such Transfer comply with the provisions of this Lease
or cancelling such Transfer requires acts to be done or
conditions to be removed which cannot, by their nature,
reasonably be performed, done or removed within such
thirty (30) day period, in which case no Event of Default shall
exist as long as Tenant shall (a) commence curing the same
within the thirty (30) day period and (b) diligently and
continuously prosecute the same to completion within a
reasonable period); or
(e) if Tenant shall fail to observe or perform
one or more of the other material terms, conditions, covenants
or agreements of this Lease and such failure shall continue for
a period of sixty (60) days (subject to Unavoidable Delays)
after Landlord's notice thereof to Tenant specifying in
reasonable detail such failure (unless such failure requires
work to be performed, acts to be done, or conditions to be
removed which cannot, by their nature, reasonably be performed,
done or removed within such sixty (60) day period, in which
case if Tenant shall commence curing the same within the sixty
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(60) day period, no Event of Default shall be deemed to exist
as long as Tenant shall be diligently and continuously
prosecuting the same to completion).
Section 24.02. Enforcement of Performance. Subject to
the provisions of Section 43.06(b), if an Event of Default
occurs, Landlord, at any time thereafter during the continuance
of the Default that gave rise to such Event of Default and the
expiration of at least ten (10) days after the giving of notice
to Tenant that Landlord intends to pursue its remedies under
this Section 24.02, may elect to proceed by appropriate
judicial proceedings, either at law or in equity, to enforce
performance or observance by Tenant of the applicable
provisions of this Lease and/or to recover damages for breach
thereof.
Section 24.03. Expiration and Termination of Lease.
(a)(i) If an Event of Default occurs pursuant
to Section 24.01(b) only and Landlord, at any time
thereafter during the continuance of Tenant's failure
to Commence Construction of the Initial Improvements,
gives Tenant notice stating that this Lease and the
Term shall terminate on the date specified in such
notice, which date shall not be less than twenty (20)
Business days after the receipt of the notice, then
this Lease and the Term and all rights of Tenant under
this Lease shall expire and terminate as if the date
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specified in the notice were the Expiration Date, and
Tenant shall quit and surrender the Premises
forthwith. If such termination is stayed by order of
any court having jurisdiction in any case, action or
proceeding, then following the expiration of any such
stay, or if the trustee appointed in any such case,
Tenant or Tenant as debtor-in-possession fails to
assume Tenant's obligations under this Lease within
the period prescribed therefor by law or within thirty
(30) days after entry of the order for relief or as
may be allowed by the court, or if the trustee, Tenant
or Tenant as debtor-in-possession fails to provide
adequate protection of Landlord's right, title and
interest in and to the Premises and adequate assurance
of the complete and continuous future performance of
Tenant's obligations under this Lease as provided in
Section 24.10, Landlord, to the extent permitted by
law or by leave of the court having jurisdiction over
such case, shall have the right, at its election, to
terminate this Lease on sixty (60) days notice to
Tenant, Tenant as debtor-in-possession or the
trustee. Upon the expiration of the sixty (60) day
period this Lease shall cease and Tenant, Tenant as
debtor-in-possession and/or the trustee immediately
shall quit and surrender the Premises.
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(ii) If an Event of Default occurs other
than pursuant to Section 24.01(b) hereof, at any time
thereafter during the continuance of the Default which
gave rise to such Event of Default and the expiration
of at least ten (10) days after the giving of notice
to Tenant that Landlord intends to pursue its remedies
under this Section 24.03(a)(ii), Landlord, in addition
to its rights under Section 24.02 hereof, may elect to
proceed by appropriate judicial proceedings to
terminate this Lease and dispossess Tenant, it being
the intent of the parties hereto that no Event of
Default other than an Event of Default pursuant to
Section 24.01(b) hereof shall be treated or construed
as a conditional limitation. Nothing contained herein
shall be deemed to constitute a waiver by Tenant of
any and all rights of redemption that may be available
to it at law or in equity.
(b) If this Lease is terminated as provided in
Section 24.03(a)(i), Landlord may dispossess Tenant by summary
proceedings or otherwise.
(c) If this Lease shall be terminated as
provided in Section 24.03(a), Tenant shall pay to Landlord all
Rental payable under this Lease by Tenant to Landlord up to the
date on which this Lease is so terminated and Tenant shall have
no liability whatsoever for any Rental (and no Rental shall
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accrue and become due) from and after such early date of
termination.
Section 24.04. Arbitration of Certain Defaults. In
the event that Tenant disagrees with Landlord's determination
that a Default or Event of Default of the nature described in
Section 24.01(b) or (c) has occurred and is continuing, Tenant,
at Tenant's sole election, shall have the right to submit to
binding arbitration the issue of whether such a Default or
Event of Default has occurred and is continuing. Tenant may
exercise its option to arbitrate the issue of whether such a
Default or Event of Default has occurred and is continuing by
notice given to Landlord prior to the institution of legal
proceedings by Landlord pursuant to Sections 24.02, 24.03 or
24.08 hereof. In the event that Tenant exercises its option to
arbitrate as set forth in this Section 24.04, the running of
the ten (10) day notice period set forth in Sections 24.02,
24.03 and 24.08 hereof or the twenty (20) Business Day period
set forth in Section 24.03(a)(i) hereof, as the case may be,
shall be tolled pending the outcome of such arbitration and
Landlord shall not institute judicial proceedings pursuant to
Sections 24.02, 24.03 or 24.08 hereof unless and until it is
determined by arbitration that a Default or Event of Default
has occurred and is continuing. Nothing contained herein shall
be construed to adversely affect Tenant's right to cure any
Default or Event of Default prior to the termination of this
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Lease by a court of competent jurisdiction or to constitute a
waiver of any right of redemption that Tenant may have at law
or in equity.
Section 24.05. Receipt of Moneys after Notice or
Termination. No receipt of moneys by Landlord from Tenant
after the termination of this Lease shall reinstate, continue
or extend the Term, or operate as a waiver of the right of
Landlord to enforce the payment of Rental payable by Tenant
hereunder, or operate as a waiver of the right of Landlord to
recover possession of the Premises by proper remedy. After a
final order or judgment for the possession of the Premises,
Landlord may demand, receive and collect any moneys due
hereunder without in any manner affecting the notice,
proceeding, order, suit or judgment, all such moneys collected
being deemed payments on account of the use and occupation of
the Premises or, at the election of Landlord, on account of
Tenant's liability hereunder.
Section 24.06. Exercise of Purchase Option.
Notwithstanding anything to the contrary contained in this
Lease, Landlord shall not institute any proceedings to
terminate this Lease and any such proceedings theretofore
instituted shall be stayed, in the event that Tenant delivers
the Purchase Notice and purchases the Premises, each in
accordance with the provisions of Article 21 hereof.
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Section 24.07. Strict Performance. No failure by one
party hereto to insist upon the other party's strict
performance of any covenant, agreement, term or condition of
this Lease or to exercise any right or remedy available to such
party pursuant to the terms hereof, and no payment or
acceptance of full or partial Rental during the continuance of
any Default or Event of Default, shall constitute a waiver of
any such Default or Event of Default or of the right to strict
performance of such covenant, agreement, term or condition. No
covenant, agreement, term or condition of this Lease to be
performed or complied with by either party, and no Default or
Event of Default shall be waived, altered or modified except by
a written instrument executed by the other party. No waiver of
any Default or Event of Default shall affect or alter this
Lease, but each and every covenant, agreement, term and
condition of this Lease shall continue in full force and effect
with respect to any other then existing or subsequent Default.
Section 24.08. Right to Enjoin Defaults. Subject to
the provisions of Sections 24.04 and 43.06 hereof, in the event
of Tenant's Default or the failure of Landlord to comply with
its obligations under this Lease, Landlord or Tenant, as the
case may be, shall be entitled, at any time thereafter during
the continuance of such Tenant's Default or Landlord's failure
and the expiration of at least ten (10) days after the giving
of notice that Landlord or Tenant, as the case may be, intends
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to pursue its remedies under this Section 24.08, to enjoin such
Tenant's Default or Landlord's failure and shall have the right
to invoke any rights and remedies allowed at law or in equity
or by statute or otherwise, other remedies that may be
available to Landlord or Tenant notwithstanding.
Section 24.09. Survival of Article. The provisions of
this Article 24 shall survive Expiration of the Term.
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ARTICLE 25
NOTICES
Section 25.01. All Notices, Communications, etc. in
Writing. Whenever it is provided herein that notice, demand,
request, consent, approval or other communication shall or may
be given to, or served upon, either of the parties by the
other, or whenever either of the parties desires to give or
serve upon the other any notice, demand, request, consent,
approval or other communication with respect hereto or to the
Premises, each such notice, demand, request, consent, approval
or other communication shall be in writing and shall be
effective for any purpose only if given or served by personal
delivery or by a national overnight courier service (e.g.
Federal Express), with acknowledgement of receipt, or by
certified or registered mail, postage prepaid, return receipt
requested, addressed as follows:
(a) If to Tenant, addressed to The New York
Times Company, 229 West 43rd St., New York, NY 10036
Attention: Mr. David Thurm, Executive Director of Project
Development and Administration, with a copy thereof to be sent
in the same manner to (i) The New York Times Company, 229 West
43rd Street, New York, New York 10036 Attention: General
Counsel and (ii) Bachner, Tally, Polevoy & Misher, 380 Madison
Avenue, New York, New York 10017 Attention: Martin D. Polevoy,
Esq. or to such other address(es) and attorneys as Tenant may
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from time to time designate by notice given to Landlord as set
forth herein.
(b) If to Landlord, addressed to The City of New
York, c/o New York City Economic Development Corporation, 110
William Street, New York, New York 10038, Attention: Lease
Administration with a copy thereof to (i) EDC's General Counsel
at the same address and (ii) The New York City Law Department,
100 Church Street, New York, New York 10007, Attention: Chief,
Economic Development Division, or to such other address(es) and
attorneys as Landlord may from time to time designate by notice
given to Tenant as set forth herein.
Section 25.02. Service. Every notice, demand,
request, consent, approval or other communication hereunder
shall be deemed to have been given or served (a) on the fourth
(4th) business day after the same shall have been actually
deposited in the United States mails, postage prepaid, as
aforesaid, or, (b) in the case of personal delivery, or
overnight courier service on the date delivered.
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ARTICLE 26
NO SUBORDINATION
Subject to the provisions of Article 11 and Section
13.05(b) hereof, and except with respect to liens or
encumbrances consented to or created by or on behalf of
Landlord, Landlord's interest in the Premises and in this
Lease, as the same may be modified, amended or renewed, shall
not be subject or subordinate to (a) any Mortgage now or
hereafter existing, (b) any other liens or encumbrances
hereafter affecting Tenant's interest in this Lease and the
leasehold estate created hereby or (c) any Sublease or any
mortgages, liens or encumbrances now or hereafter placed on any
Subtenant's interest in the Premises. This Lease and the
leasehold estate of Tenant created hereby and all rights of
Tenant hereunder are and shall be subject to the Title Matters.
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ARTICLE 27
SANITARY SEWER
Section 27.01. Requirement of Sanitary Sewer.
Landlord acknowledges that the leasehold estate granted hereby
and the Improvements to be constructed on the Land shall be of
no value to Tenant unless and until there is constructed and
put into proper working order a sanitary sewer system designed
on behalf of Lease Administrator to run along the westerly side
of the Whitestone Expressway Service Road adjacent to the
Premises with a design and capacity sufficient to service a
Printing Facility of not less than 720,000 square feet of Gross
Building Area, together with such other buildings and
improvements that may be necessary in connection therewith (the
"Sanitary Sewer"). It is presently contemplated that the
Sanitary Sewer shall be constructed substantially in accordance
with those certain drawings titled "Installation of Sanitary
Sewers and Sundry Appurtenant Structures in College Point,"
Sheets 1 through 24, prepared by King & Gavaris and dated
April 18, 1990 (the "Sewer Drawings" and, together with the
specifications developed or to be developed in connection with
such Sewer Drawings, as such Sewer Drawings and specifications
may be modified in accordance with the immediately succeeding
sentence, the "Sewer Plans"). Landlord may modify the design,
size, materials or capacity of the Sanitary Sewer only to the
extent necessary to comply with Requirements or respond to
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technological changes; provided, however, that no such
modification shall render the Sanitary Sewer insufficient to
service a Printing Facility of not less than 720,000 square
feet of Gross Building Area, together with such other buildings
and improvements that may be necessary in connection therewith.
Section 27.02. Obligation to Construct Sanitary
Sewer. Landlord shall perform or cause to be performed the
work necessary to construct and put into proper working order
the Sanitary Sewer in accordance with the Sewer Plans (the
"Sanitary Sewer Work"), except to the extent that the Sanitary
Sewer Work is performed by Tenant pursuant to the provisions of
Funding Agreement #2. The party performing the Sanitary Sewer
Work shall be responsible for performing all work shown on or
evidently required by the Sewer Plans including, without
limitation, any and all excavation and/or piling work shown on
or evidently required by the Sewer Plans. If Tenant performs
the Sanitary Sewer Work pursuant to the provisions of Funding
Agreement #2, the term "Work," as such term is defined in
Funding Agreement #2, shall be deemed to include all work shown
on or evidently required by the Sewer Plans. Landlord shall
complete the Sanitary Sewer Work by the date (the "Scheduled
Sanitary Sewer Completion Date") that is twenty-four (24)
months after the earlier to occur of (i) the date on which
Tenant gives Landlord written notice that it will not exercise
its option to construct the Sanitary Sewer pursuant to the
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provisions of Funding Agreement #2, (ii) the date on which
Tenant gives written notice to Landlord revoking Tenant's
election to construct the Sanitary Sewer pursuant to the
provisions of Funding Agreement #2, (iii) the date that is
ninety-one (91) days after the date on which Tenant Commences
Construction of the Project, unless Tenant had duly exercised
its option to construct the Sanitary Sewer prior thereto, or
(iv) the date on which Funding Agreement #2 is terminated
pursuant to any provision thereof or by order of a court of
competent jurisdiction, if the Sanitary Sewer Work had not been
completed prior to such termination (the earlier of (i), (ii),
(iii) or (iv) being hereinafter referred to as "Landlord's
Sewer Commencement Date"); provided, however, that (x) in no
event shall the Scheduled Sanitary Sewer Completion Date be
prior to December 1, 1995 and (y) notwithstanding anything to
the contrary contained herein, in the event that Funding
Agreement #2 is terminated as the result of EDC's default
thereunder, Landlord shall complete the Sanitary Sewer Work not
later than the date by which Tenant shall be ready to make its
connection to the Sanitary Sewer and otherwise cause
Substantial Completion to occur (the "Tenant Readiness Date").
In the event that Tenant gives written notice to Landlord
revoking Tenant's election to construct the Sanitary Sewer
pursuant to the provisions of Funding Agreement #2 for reasons
unrelated to any act or failure to act by Landlord or EDC under
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Funding Agreement #2, the twenty-four (24) month period
specified in the second sentence of this Section 27.02 shall be
increased by the number of days in the period commencing on
(x) the date on which Tenant gives written notice to Landlord
of its election to construct the Sanitary Sewer pursuant to the
provisions of Funding Agreement #2, and expiring on (y) the
date on which Tenant gives written notice to Landlord revoking
such election. Tenant shall give Landlord not less than thirty
(30) nor more than ninety (90) days' advance written notice of
the date by which Tenant expects the Tenant Readiness Date to
occur. Promptly following the Tenant Readiness Date, Tenant
shall submit to Landlord a certificate of the Architect or
Engineer of Record certifying to the effect that substantial
completion has occurred with the exception of Tenant's hookup
to the Sanitary Sewer and that Tenant would be ready to make
such hookup if the Sanitary Sewer were completed.
Section 27.03. Damages for Landlord's Failure to
Construct Sanitary Sewer. If Landlord shall not have completed
the Sanitary Sewer Work and/or Tenant, using reasonable
diligence, shall not have made its connection to the Sanitary
Sewer by the date (the "Sanitary Sewer Default Date") that is
the later to occur of (i) the Scheduled Sanitary Sewer
Completion Date and (ii) the Tenant Readiness Date, then, for
the period (the "Sanitary Sewer Offset Period") commencing on
the Sanitary Sewer Default Date and ending on the date by which
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both (x) Landlord shall have completed the Sanitary Sewer Work
and (y) Tenant, using reasonable diligence, shall have made
(or, using reasonable diligence, should have made) its
connection to the Sanitary Sewer, Tenant shall be entitled to
accrue, as liquidated damages, as an offset against future
installments of Rental (excluding Impositions and College Point
Improvement Fund Payments) becoming due and payable after the
Sanitary Sewer Default Date an amount (the "Sewer Offset
Amount") equal to the product of (A) $1,000.00, multiplied by
(B) the number of days in the Sanitary Sewer Offset Period.
Section 27.04. Damages for Delaying Tenant's
Construction of the Sanitary Sewer. If Tenant elects to
perform the Sanitary Sewer Work pursuant to the provisions of
Funding Agreement #2 or this Lease, and Tenant is delayed in
completing the Sanitary Sewer Work and making its connection
thereto beyond the Tenant Readiness Date, then Tenant shall be
entitled to accrue, as liquidated damages, as an offset against
future installments of Rental (excluding Impositions and
College Point Improvement Fund Payments) becoming due and
payable after the Tenant Readiness Date an amount (the "Sewer
Delay Offset Amount") equal to the product of (A) $1,000,
multiplied by (B) the number of days of Public Sewer Delay, not
to exceed the number of days in the Sewer Delay Period. The
term "Public Sewer Delay" shall mean any delay in the
completion of the Sanitary Sewer Work and Tenant's connection
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thereto arising from the acts or omissions of EDC, or Landlord
or any of their employees, agents, contractors, departments,
divisions or agencies including, without limitation:
(i) defects in the Plans and Specifications for the Sanitary
Sewer Work, (ii) the failure to make necessary revisions to
such Plans and Specifications on a timely basis, (iii) EDC's
inspection or requiring the uncovering of the Sanitary Sewer
Work (unless EDC was correct in suspecting that such uncovering
would reveal defective work) or any delays in performing such
inspection, or (iv) EDC's failure to accept a low bid for all
or any portion of the Sanitary Sewer Work because such low bid
nonetheless exceeds the Engineer's Estimate. The term "Sewer
Delay Period" shall mean the period commencing on (x) the
Tenant Readiness Date, and expiring on (y) the date on which
Tenant, using reasonable diligence, shall have (or, using
reasonable diligence, should have) made its connection to the
Sanitary Sewer.
Section 27.05. Sewer Self-Help Remedy. In the event
that either (i) Landlord fails to commence the Sanitary Sewer
Work within one hundred eighty (180) days after Landlord's
Sewer Commencement Date, subject to Landlord's right to an
extension on a day-for-day basis for each day of Unavoidable
Delays or (ii) Landlord shall cease the performance of the
Sanitary Sewer Work for any period in excess of ninety (90)
successive calendar days, subject to Landlord's right to an
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extension on a day-for-day basis for each day of Unavoidable
Delays, then, without regard to whether Tenant may have
previously elected to perform the Sanitary Sewer Work pursuant
to the provisions of Funding Agreement #2 or this Lease, or
whether Funding Agreement #2 may have previously been
terminated due to Tenant's default thereunder, Tenant shall
have the right to elect to perform the Sanitary Sewer Work upon
all of the terms and conditions of Funding Agreement #2.
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ARTICLE 28
ABANDONMENT OF THE PROJECT
Section 28.01. Effect of Abandonment of the Project.
Landlord and Tenant acknowledge and agree that an Abandonment
of the Project shall not constitute a Default or Event of
Default.
Section 28.02. Loss of Certain Benefits. From and
after the date of Abandonment of the Project: (i) PILOT shall
be equal to Taxes (computed in accordance with the provisions
of Section 3.05(d)(i) hereof), (ii) Tenant shall be required to
make Public Purpose Payments in accordance with the provisions
of Section 36.02 hereof and (iii) the provisions of Section
3.08.1 hereof shall be of no further force and effect, except
that (x) Section 3.08.1 shall continue in effect with respect
to Exempt Taxes attributable to transactions occurring, or
periods ending, prior to the date on which Abandonment of the
Project shall be deemed to have occurred, including, without
limitation, exercise by Tenant of its Purchase Option provided
in Article 21 hereof prior to such date (regardless of whether
the transfer of title to the Property takes place after such
date); and (y) Sections 3.08.2 through 3.08.4 shall continue in
effect with respect to any Exempt Taxes as to which Section
3.08.1 so continues in effect; and provided, however, that if
and to the extent that any Taxes are required to be paid with
respect to the Premises notwithstanding Landlord's ownership
thereof, PILOT shall be reduced by a like amount.
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Section 28.03. Reimbursement of Funding.
(a) In the event that there shall be an
Abandonment of the Project at any time prior to the Operational
Date, Tenant shall reimburse EDC dollar for dollar for the
Funding or any portion thereof disbursed by EDC pursuant to
Funding Agreement #1 prior to the date of such Abandonment of
the Project (the "EDC Reimbursement Amount") substantially in
accordance with the illustration for such reimbursement set
forth in "Reimbursement Schedule" attached hereto as Exhibit
M-1 and made a part hereof, including interest thereon at the
rate of the lesser of either (x) nine percent (9%) per annum or
(y) the City's cost of borrowing, from the date on which EDC
disbursed such funds to Tenant until Tenant fully reimburses
EDC for such funds.
(b) In the event that there shall be an
Abandonment of the Project at any time after the Operational
Date, Tenant shall reimburse EDC for an amortized amount (the
"Amortized EDC Reimbursement Amount") of the Funding or any
portion thereof disbursed by EDC pursuant to Funding
Agreement #1 prior to the date of such Abandonment of the
Project, amortized in accordance with the "Amortized
Reimbursement Schedule" attached hereto as Exhibit M-2 and
hereby made a part hereof, such amortized amount to include
interest thereon at the rate of the lesser of either (x) nine
percent (9%) per annum or (y) the City's cost of borrowing,
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from the date on which EDC disbursed such funds to Tenant until
Tenant fully reimburses EDC for the appropriate amortized
amount of such funds.
(c) Unless Tenant exercises the purchase option
contained in Article 21 hereof, in which event the provisions
of Article 21 and the Purchase Agreement shall govern, Tenant
shall reimburse EDC for the amounts described in subsection (a)
and (b) of this Section 28.03 in equal quarterly installments
commencing on the first day of the calendar quarter occurring
immediately after the date on which Abandonment of the Project
is deemed to have occurred and continuing thereafter for a
period of five (5) years. Tenant shall have the right, at any
time during such five (5) year period, to prepay all or any
portion of the Funding to be reimbursed (together with any
interest accrued thereon pursuant to the terms hereof) without
penalty or premium.
Section 28.04. Right to Terminate. In the event that
(i) there shall be an Abandonment of the Project, (ii) Tenant
shall make all reimbursements to EDC required pursuant to
Section 28.03 hereof and (iii) Tenant does not exercise the
purchase option contained in Article 21 hereof, then, at any
time thereafter, Tenant shall have the right, to be exercised
in Tenant's sole discretion by written notice to Landlord, to
terminate the Term of this Lease effective as of a date to be
set forth in such notice, in which event all of Tenant's
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obligations under this Lease shall terminate and come to an end
effective as of the date of termination set forth in such
notice.
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ARTICLE 29
CERTIFICATES BY LANDLORD AND TENANT
Section 29.01. Certificate of Tenant. Tenant shall,
within fifteen (15) business days after notice by Landlord,
execute, acknowledge and deliver to Landlord, or any other
Person specified by Landlord, a written statement (which may be
relied upon by such Person) (a) certifying (i) that this Lease
is unmodified and in full force and effect (or if there are
modifications, that this Lease, as modified, is in full force
and effect and stating such modifications and providing a copy
thereof if requested), and (ii) the date to which each item of
Rental payable by Tenant hereunder has been paid, and (b)
stating (i) whether Tenant has given Landlord written notice of
any event that, with the giving of notice or the passage of
time, or both, would constitute a default by Landlord in the
performance of any covenant, agreement, obligation or condition
contained in this Lease, and (ii) whether, to the actual
knowledge of Tenant, Landlord is in default in performance of
any covenant, agreement, obligation or condition contained in
this Lease, and, if so, specifying in detail each such default,
Section 29.02. Certificate of Landlord. Landlord
shall, within fifteen (15) business days after notice by
Tenant, execute, acknowledge and deliver to Tenant, or such
other Person specified by Tenant, a statement (which may be
relied upon by such Person) (a) certifying (i) that this Lease
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is unmodified and in full force and effect (or if there are
modifications, that this Lease, as modified, is in full force
and effect and stating such modifications and providing a copy
thereof if requested), and (ii) the date to which each item of
Rental payable by Tenant hereunder has been paid, and (b)
stating (i) whether an Event of Default has occurred or whether
Landlord has given Tenant written notice of any event that,
with the giving of notice or the passage of time, or both,
would constitute an Event of Default, and (ii) whether, to the
actual knowledge of Landlord, Tenant is in Default in the
performance of any covenant, agreement, obligation or condition
contained in this Lease, and, if so, specifying, in detail,
each such Default or Event of Default.
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ARTICLE 30
CONSENTS AND APPROVALS
Section 30.01. Effect of Granting or Failure to Grant
Approvals or Consents. All consents and approvals which may be
given under this Lease shall, as a condition of their
effectiveness, be in writing. The granting of any consent or
approval by a party to perform any act requiring consent or
approval under the terms of this Lease, or the failure on the
part of a party to object to any such action taken without the
required consent or approval, shall not, except where expressly
stated otherwise, be deemed a waiver by the party whose consent
was required of its right to require such consent or approval
for any further similar act.
Section 30.02. Remedy for Refusal to Grant Consent or
Approval. If, pursuant to the terms of this Lease, any consent
or approval by Landlord or Tenant is not to be unreasonably
withheld or delayed or is subject to a specified standard (and
provided that such provision does not provide for deemed
approval if no response is given to Tenant within a specified
period of time) then in the event there shall be a final
determination that the consent or approval was unreasonably
withheld or delayed or that such specified standard has been
met so that the consent or approval should have been granted,
the consent or approval shall be deemed granted and, unless
specified to the contrary elsewhere in this Lease, Landlord
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shall have no additional liability to Tenant for withholding or
delaying such consent or approval.
Section 30.03. No Unreasonable Delay. Wherever this
Lease provides that Landlord's or Tenant's consent or approval
is not to be unreasonably withheld, such consent or approval
also shall not be unreasonably delayed. Unless specifically
stated otherwise, all consents of Landlord required under this
Lease shall be granted or withheld in Landlord's reasonable
discretion.
Section 30.04. No Fees Etc. Except as specifically
provided herein, no fees or charges of any kind or amount shall
be required by either party hereto as a condition of the grant
of any consent or approval which may be required under this
Lease. The preceding however shall not limit the City's right
to charge, in its governmental capacity (as opposed to its
capacity as Landlord and owner of the fee interest in the
Premises), generally applicable fees and charges in connection
with requests for building permits, certificates of occupancy
or other permits, licenses, etc.
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ARTICLE 31
SURRENDER AT END OF TERM
Section 31.01. Surrender of Premises. Subject to
Section 8.03 hereof, upon the Expiration Date (or upon a
re-entry by Landlord upon the Premises pursuant to Article 24),
Tenant, without any payment or allowance whatsoever by
Landlord, shall surrender the Premises to Landlord in good
order, condition and repair, reasonable wear and tear excepted,
free and clear of all Subleases, liens and encumbrances other
than Subleases to which Landlord has given recognition pursuant
to the provisions of Section 10.06 or otherwise, easements and
other rights which Landlord has agreed may survive the
termination of this Lease and rights of Recognized Mortgagees
under Section 11.04. Subject to the provisions of Section
21.01(c) hereof, Tenant hereby waives any notice now or
hereafter required by law with respect to vacating the Premises
on the Expiration Date.
Section 31.02. Delivery of Subleases, etc. Upon the
Expiration Date (or upon a re-entry by Landlord upon the
Premises pursuant to Article 24), Tenant shall deliver to
Landlord Tenant's executed counterparts of all Subleases and
any service and maintenance contracts then affecting the
Premises, and all warranties and guarantees then in effect
which Tenant has received in connection with any work or
services performed or Equipment installed at the Premises,
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together with a duly executed assignment thereof to Landlord in
form reasonably satisfactory to Tenant and Landlord, and copies
of all financial reports, books and records required by
Article 37 and any and all other material documents relating to
the operation of the Premises and the condition of the
Improvements (or copies thereof, to the extent Tenant is
required by law or generally accepted accounting principles, to
retain the originals).
Section 31.03. Personal Property. Any personal
property of Tenant, or of any Subtenant which has not been
granted non-disturbance rights, which shall remain on the
Premises for six (6) months after the Expiration Date (or after
a reentry by Landlord upon the Premises pursuant to Article 24)
and after the removal of Tenant or such Subtenant from the
Premises, may, at the option of Landlord, be deemed to have
been abandoned by Tenant or such Subtenant, and subject to the
rights of Recognized Mortgages either may be retained by
Landlord as its property or be disposed of at Tenant's expense,
without accountability, in such manner as Landlord may see
fit. Landlord shall not be responsible for any loss or damage
occurring to any such property owned by Tenant or any
Subtenant. Notwithstanding anything to the contrary contained
herein, the right of Tenant or any Subtenant which has not been
granted non-disturbance rights to leave personal property at
the Premises for six (6) months after the Expiration Date
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before such property shall be deemed abandoned, shall not be
construed to permit Tenant or any such Subtenant to leave
personal property at the Premises for more than three hundred
sixty-five (365) days after the giving by Tenant of a notice to
Landlord terminating this Lease pursuant to the provisions of
Section 8.02(a);
Section 31.04. Survival Clause. The provisions of
this Article shall survive the Expiration Date.
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ARTICLE 32
ENTIRE AGREEMENT
This Lease, the Power Agreement and Funding Agreements
#1, #2 and #3, including all the Exhibits, contain all of the
promises, agreements, conditions, inducements and
understandings between Landlord and Tenant concerning the
Premises and there are no promises, agreements, conditions,
understandings, inducements, warranties or representations,
oral or written, expressed or implied, between them covering
the Premises other than as expressly set forth herein or as may
be expressly contained in any enforceable written agreements or
instruments executed by the parties hereto.
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ARTICLE 33
QUIET ENJOYMENT
Landlord covenants that, as long as Tenant faithfully
shall perform the agreements, terms, covenants and conditions
hereof, Tenant shall (subject to the terms and conditions of
this Lease) peaceably and quietly have, hold and enjoy the
Premises for the Term without molestation or disturbance by or
from Landlord or any Person claiming through Landlord.
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ARTICLE 34
ARBITRATION
Section 34.01. Disputes to be Submitted to
Arbitration. Every dispute between the parties which is
specifically provided in this Lease to be determined by
arbitration shall be submitted to arbitration in the manner
hereinafter provided.
Section 34.02. Procedure for Arbitration.
(a) Dispute Notice. The party desiring the
arbitration shall, by notice to the other party (the "Dispute
Notice"), require that the dispute in question be presented for
resolution to the first available arbiter set forth on the
applicable list below in Section 34.06. The party giving the
Dispute Notice shall give a copy of such Dispute Notice to the
first arbiter on such applicable list (unless such first
arbiter is known to be unavailable) with a cover letter
requesting such arbiter to serve. In the event the first named
arbiter is not available or is unwilling to serve, the arbiter
next set forth on the list shall be engaged, and so on, until
arriving at an available arbiter. The arbiter serving to
resolve any dispute hereunder is hereinafter referred to as the
"Arbiter".
(b) Rejection Notice. Either party may, within
five (5) Business Days of its receipt of the other party's
Dispute Notice (the "Notice Period") give notice to such other
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party and to the Arbiter (the "Rejection Notice") stating that
the dispute is not subject pursuant to the terms of this Lease
to the dispute resolution mechanism of this Article 34. The
validity of the Rejection Notice shall also be subject to
arbitration as set forth herein by the first available Arbiter
from the applicable list designated by the Dispute Notice, in
which event the parties shall make such submissions as they may
wish to the Arbiter regarding such validity within five (5)
Business Days after the giving of the Rejection Notice.
(c) Arbiter's Decision. If either: (i) the
recipient of the Dispute Notice fails to give a Rejection
Notice to the other party within the Notice Period, or (ii) the
Arbiter determines that the dispute is arbitrable pursuant to
the terms of this Lease, then such dispute shall be deemed
arbitrable and both parties shall make such submissions as they
may wish to the Arbiter within five (5) Business Days after the
expiration of the Notice Period or, if a Rejection Notice is
given, the determination that the dispute is arbitrable, as the
case may be. Within five (5) Business Days thereafter, the
Arbiter shall attempt to cause Landlord and Tenant to agree on
a resolution to the dispute and, failing that, shall make a
decision in writing by 5:00 P.M. on the last day of such five
(5) Business-Day period. Copies of the Arbiter's decision
shall be sent to Landlord and Tenant.
Section 34.03. Selection of Arbiter.
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(a) Disqualifications. During the month of
January of each calendar year during the Term, Tenant and
Landlord may each, by written notice to the other, disqualify
one of the listed arbiters for any reason whatsoever. Landlord
and Tenant may also by written notice to each other at any time
(including the five (5) Business Day period following the
giving of a Dispute Notice), require any arbiter to be
disqualified for cause (including, without limitation, conflict
of interest), the presence of such cause (if disputed) to be
determined by another arbiter under the provisions of this
Article 34. The remaining arbiters shall move up on the list
to fill any vacancies so created.
(b) Replacements. If any of the listed arbiters
dies, becomes disabled, retires, goes out of business, is
disqualified by Landlord or Tenant for cause or otherwise, or
elects to withdraw from the list, then Landlord and Tenant
shall agree on a replacement within twenty (20) days after
notice thereof. If Landlord and Tenant fail to so agree, each,
within five (5) days after such twenty (20) day period, shall
designate one of the remaining listed arbiters and the two
arbiters so chosen shall appoint a replacement within twenty
(20) days thereafter. All newly chosen arbiters shall be
placed at the last position on the list. If more than one
arbiter is chosen at the same time, the arbiters who are so
chosen shall be listed in alphabetical order. In the event
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that, at any time, there is no listed arbiter available,
Landlord and Tenant shall endeavor to agree upon a reputable
and experienced arbiter to resolve the dispute in question. In
the event that Landlord and Tenant are unable to agree on such
arbiter, such arbiter shall be chosen in accordance with the
rules of the American Arbitration Association then prevailing.
The Arbiter, however chosen, shall proceed to resolve any
dispute in accordance with the provisions set forth in this
Article 34.
Section 34.04. Recognized Mortgagees. Any Recognized
Mortgagee may participate, through or in place of Tenant, in
any arbitration conducted pursuant hereto, provided that any
such participation shall not be deemed to expand Tenant's
rights.
Section 34.05. Arbiter's Decision. In rendering his
or her decision, the Arbiter shall have no power to modify any
of the provisions of this Lease, and the jurisdiction of the
Arbiter is expressly limited accordingly. The decision of the
Arbiter shall be final and conclusive on the parties, and
judgment may be entered on the decision of the Arbiter rendered
in accordance with this Article 34 and may be enforced in
accordance with the laws of New York State.
Section 34.06. Lists of Arbiters.
(a) To determine disputes regarding the
calculation of "Gross Building Area":
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1. Mr. David Castro-Blanco
Castro-Blanco, Piscioneri Associates
62 Cooper Square
New York, New York 10003
(212) 254-2700
2. Ms. Linda Eklund
Emery Roth & Sons Architect
560 Lexington Avenue
New York, New York 10022
(212) 753-1733
3. Mr. Robert Fox
Fox & Fowle
22 West 19th Street
New York, New York 10011
(212) 627-1700
4. Mr. Eugene Kohn
Kohn Pederson Fox, Associates
111 West 57th Street
New York, New York 11019
(212) 977-6500
(b) To determine disputes pursuant to Sections
7.03(b) and 7.04 hereof:
1. Ms. Laura Bouyet
Marsh & McLennan
1166 Avenue of the Americas
New York, New York 10036-2774
(212) 345-6590
2. Mr. Gordon Prager
Johnson & Higgins
125 Broad Street
New York, New York 10004-2424
(212) 574-8359
3. Ms. Pamela Newman
Rollins Hudig Hall
261 Madison Avenue
New York, New York 10005
(212) 573-5664
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4. Mr. Jonathan Ostrau
Alexander & Alexander
1185 Avenue of the Americas
New York, New York 10036
(212) 575-8000
(c) To determine disputes as to whether
(x) Landlord has acted unreasonably in withholding its consent
to a Transfer that is not an Affiliate Transfer or a
Merger/Sale Transfer or (y) a material default has occurred
under Section 7.2(b) of Funding Agreement #1:
1. The then dean of Columbia Law School
2. The then dean of New York University
Law School
3. The then dean of Fordham Law School
4. The then dean of Brooklyn Law School
(d) To determine disputes under this Lease or
Funding Agreement #1 as to whether Landlord has acted
unreasonably in withholding its approval of Plans and
Specifications or modifications or resubmissions of Plans and
Specifications:
1. Mr. Richard Dattner
Richard Dattner Architect P.C.
154 West 57th Street
New York, New York 10019
(212) 247-2660
2. Mr. Fred Bland
Beyer Blinder Belle
41 East 11th Street
New York, New Yorzk 10003
(212) 777-7800
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3. Mr. Henry Brennan
Brennan Bear Gorman
515 Madison Avenue
New York, New York 10001
(212) 888-7663
4. Mr. Brad Perkins
Perkins Eastman & Partners
437 Fifth Avenue
New York, New York 10016
(212) 889-1720
(e) To determine disputes as to whether a
Default or Event of Default of the nature described in Section
24.01(b) or (c) hereof has occurred and is continuing:
1. Mr. Charles Uribe
A.J. Contracting Corp.
470 Park Avenue South
New York, New York 10016
(212) 889-9100
2. Mr. Mitch Solomon
HRH Construction
909 3rd Avenue
New York, New York 10022
(212) 751-3100
3. Mr. Arthur Thompsen
Hennigan Construction, Inc.
250 West 30th Street
New York, New York 10001
(212) 947-6441
4. Mr. Joseph Coppotelli
Structure Tone, Inc.
15 East 26th Street
New York, New York 10010
(212) 481-6100
(f) To determine disputes that are subject to
arbitration pursuant to (x) Section 5.7(d) of Funding Agreement
#2 or (y) any provision of Funding Agreement #4:
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1. Mr. Daniel Greenbaum
Vollmer Associates
50 West 23rd Street
New York, New York 10010
2. Mr. Neal J. Forshner
Envirodyne Engineers, Inc.
41 East 42nd Street
New York, New York 10017
3. Mr. Malcolm McLaren
M.G. McLaren Consulting Engineers
100 Snake Hill Road
West Nyack, New York 10994
(914) 353-6400
4. Mr. Mark Schiffman
Shah Trans Inc.
101 South Bergen Place
Freeport, New York 11520
(516) 868-0900
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ARTICLE 35
ADMINISTRATIVE AND JUDICIAL
PROCEEDINGS, CONTESTS ETC.
Section 35.01. Tax Contest Proceedings.
(a) Tenant shall have the right, at its sole
cost and expense, to seek reductions in the valuation of the
Land and/or Improvements assessed for real property tax
purposes and to prosecute any action or proceeding in
connection therewith by appropriate proceedings in accordance
with the City Charter and the City's Administrative Code,
notwithstanding that the Premises may then be exempt from
payment of any such real property tax or that any such tax may
be abated by reason of this Lease or under applicable law.
Landlord shall arrange for its Department of Finance to send
"so-called" FLACK Notices setting forth changes in the assessed
valuation of the Land and/or the Improvements directly to
Tenant, with a copy to Tenant's General Counsel and Tenant's
attorneys at the address set forth in Article 25 hereof, as
such address may be changed in accordance with the provisions
of said Article 25.
(b) Tenant shall continue to pay the full amount
of PILOT required under Section 3.05 until a final
determination is made with respect to any such action or
proceeding.
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(c) If, upon the final determination of any such
action or proceeding, it is determined that Tenant is entitled
to such reduction, PILOT shall be reduced in accordance with
such determination; and if pursuant to such determination
Tenant is entitled to a reduction in the amount of any PILOT
payment(s) or portion thereof already paid, the difference (the
"PILOT Refund Amount") between the amount of the PILOT actually
paid by Tenant and the amount of the PILOT that should have
been paid in light of such reduction shall be offset against
any future PILOT payments and/or other Rental payments that may
be due, or, if no future PILOT payments and/or other Rental
payments are due, Landlord shall promptly refund such amount to
Tenant. The PILOT Refund Amount shall bear interest from the
date of overpayment to the date of offset or refund, as the
case may be, at the rate of interest that The City is paying to
taxpayers who are entitled to real estate tax refunds.
Section 35.02. Imposition Contest Proceedings. Tenant
shall have the right to contest, at its sole cost and expense,
the amount or validity, in whole or in part, of any Imposition
by appropriate proceedings diligently conducted in good faith,
or in any other manner permitted by law, including, without
limitation, the right to prosecute administrative and/or
judicial proceedings and judicial review and appeal of any
decision which Tenant, in its sole discretion, considers
adverse, and the right to settle or compromise any such
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proceeding. In the event of any such contest, payment of such
Imposition may be postponed until the matter is resolved. Any
amount postponed hereunder shall bear interest at the Late
Charge Rate until paid.
Section 35.03. Requirement Contest. Tenant shall have
the right to contest the validity of any Requirement or the
application thereof in any manner permitted by law, including,
without limitation, the right to prosecute administrative
and/or judicial proceedings and judicial review and appeal of
any decision which Tenant, in its sole discretion, considers
adverse, and the right to settle or compromise any such
proceeding. During such contest, compliance with any such
contested Requirement may be deferred by Tenant. Any such
proceeding instituted by Tenant shall be commenced reasonably
promptly after the issuance of any such contested Requirement
and shall be prosecuted with diligence to final adjudication,
settlement, compliance or other disposition of the Requirement
so contested which is acceptable to the Governmental Authority
enforcing such Requirement. Tenant shall comply with any such
Requirement in accordance with the provisions of Section
16.01(a) if the Premises, or any part thereof, are in danger of
being forfeited or if Landlord is in danger of being subjected
to criminal liability or penalty.
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Section 35.04. Landlord's Participation in Contest
Proceedings. Landlord, at Tenant's option, shall (i) join in
any action or proceeding brought by Tenant referred to in this
Article and/or (ii) permit the action to be brought by Tenant
in Landlord's name, and/or (iii) execute such documents that
Tenant may reasonably request in connection with such action or
proceeding.
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ARTICLE 36
SALES AND COMPENSATING USE TAXES
Section 36.01. Exemption. Landlord warrants and
represents that, by reason of Landlord's ownership of the
Improvements, sales and compensating use taxes will not be
payable in connection with the materials, fixtures and
Equipment purchased and incorporated into the Improvements.
Landlord shall assist Tenant to the extent required by the
provisions of Section 3.08 hereof in establishing any such
exemption. Notwithstanding the foregoing or anything to the
contrary elsewhere in this Lease, Landlord hereby agrees that,
for income tax purposes, Tenant shall be considered to have all
of the benefits and burdens of ownership with respect to the
Improvements and that Landlord will not claim any deduction or
credit on its income tax returns or any other filings or
financial statements with respect to the Improvements and will
not otherwise take any action in connection with the
Improvements which would disentitle Tenant to claim the
deductions and credits that it would otherwise be entitled to
claim as the owner of the Improvements for income tax purposes.
Section 36.02. Public Purpose Payments. From and
after Abandonment of the Project, Tenant shall pay to the
appropriate taxing authority an amount equal to the amount of
New York State and City sales and compensating use taxes that
would, with respect to purchases completed after the date of
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such Abandonment, thereafter be required to be paid by Tenant,
or contractors working on its behalf or their subcontractors,
with respect to any tangible personal property that thereafter
becomes an integral component of any Improvement, if not for
the exemption from such taxes based on the Landlord's ownership
of the Premises, reduced by any amount representing such sales
or use taxes which Tenant has for any reason paid to any taxing
authority, including Landlord, or to any of Tenant's vendors,
contractors of subcontractors. Payments required by this
Article are referred to herein as "Public Purpose Payments" and
shall not, from and after Abandonment of the Project,
constitute Exempt Taxes.
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ARTICLE 37
REPORTS, SUBMISSIONS AND RECORDS
Section 37.01. Financial Reports. For as long as the
City shall be Landlord and to the extent that City
Administrative Code Section 11-208.1 (or successor thereto) is
then in force and effect, Tenant shall furnish to Landlord
income and expense statements of the type required by such City
Administrative Code section (or successor thereto) as if Tenant
were the "owner" of the Premises as such term is used in City
Administrative Code Section 11-208.1, such statements to be
submitted within the time periods and to the address provided
for in City Administrative Code Section 11-208.1; such
statements are to be furnished notwithstanding that the City
holds fee title to the Premises, or that the Premises may
therefore not be "income-producing property" as that concept is
used in City Administrative Code Section 11-208.1.
Section 37.02. Submission of Certificates of
Occupancy. Tenant shall submit to Landlord a copy of each and
every Certificate of Occupancy received for part or all of the
Project, within thirty (30) Business Days of Landlord's request
therefor.
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ARTICLE 38
RECORDING OF LEASE
Tenant may, at Tenant's option, cause this Lease and
any amendments hereto, or a memorandum hereof or thereof, to be
recorded in the Office of the Register of the City of New York
(Queens County) after the execution and delivery of this Lease
or any such amendments and Landlord shall promptly execute any
such memorandum of lease upon request of Tenant.
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ARTICLE 39
TENANT'S PROPERTY
Notwithstanding anything to the contrary contained in
Section 13.07 hereof, all Tenant's Property shall be and remain
the property of Tenant (or any Subtenant of Tenant, as the case
may be) and may be removed by Tenant (or such Subtenant) at any
time during the Term.
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ARTICLE 40
NONDISCRIMINATION; AFFIRMATIVE ACTION
Section 40.01. Executive Order No. 50. The
provisions of this Section 40.01 shall apply only with respect
to contracts entered into directly by Tenant for Construction
Work in an amount of $1,000,000 or more, and subcontracts for
Construction Work in an amount of $750,000 or more, in each
case with respect only to Construction Work necessary to
accomplish Substantial Completion of the Initial Improvements
or any subsequent expansions of the Initial Improvements which
add in excess of 75,000 square feet of Gross Building Area
(hereinafter referred to as "E.O. 50 Contracts" and "E.O. 50
Subcontracts," respectively). For so long as Executive Order
No. 50 of April 25, 1980 (as amended, "E.O. 50") is in effect,
except to the extent that an exemption under E.O. 50 applies,
Tenant shall include in all E.O. 50 Contracts, and shall cause
its contractors to include in all E.O. 50 Subcontracts, the
provisions contained in Exhibit P hereto (the "E.O. 50
Construction Contract Rider"). Tenant shall utilize good faith
efforts to cause the contractors under E.O. 50 Contracts to
comply, and to cause the subcontractors under E.O. 50
Subcontracts to comply, with the provisions of the E.O. 50
Construction Contract Rider. The more restrictive provisions
of Section 6.5(a)(i) of Funding Agreement #1 shall apply with
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respect to contracts and subcontracts for "Construction Work"
(as such term is defined in Funding Agreement #1), as more
particularly described in said Section 6.5(a)(i).
Section 40.02. Limitations. Notwithstanding anything
to the contrary contained in this Lease, the E.O. 50
Construction Contract Rider or E.O. 50 and the rules and
regulations promulgated thereunder: (i) the contractors and
subcontractors under E.O. 50 Contracts and E.O. 50 Subcontracts
shall in no event be bound by any obligations that are more
stringent than the obligations imposed by E.O. 50 and the rules
and regulations promulgated thereunder in effect as of the date
of this Lease, (ii) no preapproval of the contractors and
subcontractors under E.O. 50 Contracts and E.O. 50 Subcontracts
by any Governmental Authority shall be required, (iii) for so
long as New York State Labor Law Section 220 or any successor
statute requires contractors performing work on public works
projects to pay journey-level wages to trainees, the trainee
requirements of E.O. 50 shall not be applicable to E.O. 50
Contracts, E.O. 50 Subcontracts and the E.O. 50 Construction
Contract Rider and in no event shall Tenant be deemed to be in
breach of the terms hereof due to the non-compliance with such
trainee requirements by any contractor or subcontractor or the
non-inclusion of such trainee requirements in the E.O. 50
Construction Contract Rider or any E.O. 50 Contract or E.O. 50
Subcontract and (iv) in no event shall the default by Tenant
under Section 40.01 or the default by any contractor or
subcontractor under an E.O. 50 Contract or an E.O. 50
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Subcontract give Landlord or any Governmental Authority the
right to stop, delay or otherwise interfere with the progress
of Construction Work.
Section 40.03. E.O. 50 Remedies. In the event of an
alleged breach of Tenant's obligations under Section 40.01
hereof, or of the obligations of a contractor or subcontractor
under an E.O. 50 Contract or E.O. 50 Subcontract, Landlord,
acting through the Department of Labor Services ("DLS") shall
notify Tenant (and the contractor or subcontractor, as the case
may be) describing the extent of non-compliance. If the
non-compliance is not remedied within thirty (30) days of
Tenant's receipt of notice, DLS shall request a meeting with
Tenant (and with the contractor or subcontractor, as
appropriate) to negotiate an Employment Program of corrective
actions to achieve Tenant's compliance with Section 40.01 and
the compliance by such contractor or subcontractor with the
E.O. 50 Contract or E.O. 50 Subcontract, as the case may be.
If Tenant fails or refuses either to meet, to agree to take
necessary corrective measures, to implement agreed corrective
measures, or to enforce the obligations of a contractor
pursuant to an E.O. 50 Contract and/or to cause a contractor to
enforce the obligations of a subcontractor under an E.O. 50
Subcontract, Landlord, acting through DLS may (i) require such
contractor and/or subcontractor, as the case may be, to take
corrective measures in an Employment Program or (ii) assess
against Tenant as liquidated damages an amount equal to the
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wages and fringe benefits that would have been paid to the
parties that should have been employed pursuant to the
non-discrimination and trainee provisions of the E.O. 50
Contracts and E.O. 50 Subcontracts. The remedies set forth in
this Section 40.03 shall be the sole remedies available to
Landlord in the event of a breach by Tenant of its obligations
under Section 40.01 hereof, and no other remedies set forth
elsewhere in this Lease shall be applicable to a breach by
Tenant of its obligations under Section 40.01.
Section 40.04. Nondiscrimination; Affirmative
Action. Tenant acknowledges that Landlord insists that parties
with which Landlord enters into contracts do not engage in any
unlawful discrimination in the selection of contractors or
against any employee or job applicant because of race, creed,
color, national origin, sex, age, disability, marital status,
or sexual orientation with respect to all employment decisions
including, but not limited to, recruitment, hiring,
compensation, fringe benefits, leaves, promotion, upgrading,
demotion, downgrading, transfer, training and apprenticeship,
lay-off and termination and all other terms and conditions of
employment. Tenant further acknowledges that Landlord insists
that all parties with which Landlord enters into contracts take
certain affirmative acts to make known to current and
prospective employees of such parties that such parties do not
engage in unlawful discrimination as more particularly
described in the immediately preceding sentence. Landlord
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acknowledges that (i) there exists at the federal, state and
local level a framework of statutes that require Tenant not to
engage in any unlawful discrimination of the nature described
in this Section 40.04 and to take certain affirmative acts of
the nature described in this Section 40.04 (the
"Nondiscrimination Statutes"), (ii) there exists at the
federal, state and local level a framework of agencies charged
with the enforcement of the Nondiscrimination Statutes (the
"Nondiscrimination Agencies") and (iii) the Nondiscrimination
Statutes provide for certain sanctions that may be imposed by
the Nondiscrimination Agencies or courts of competent
jurisdiction in the event of a violation of the
Nondiscrimination Statutes (the "Nondiscrimination
Sanctions"). Tenant agrees that it shall comply with all
Nondiscrimination Statutes with respect to the Premises that
may be legally applicable to Tenant from time to time during
the Term.
Section 40.05. Nondiscrimination Remedies. In the
event that Landlord has a reasonable basis for believing that
Tenant is in violation of a Nondiscrimination Statute with
respect to the Premises, Landlord shall notify Tenant
describing the nature of such perceived violation. If such
violation is not remedied within thirty (30) days of Tenant's
receipt of notice, Landlord shall request a meeting with Tenant
to discuss Tenant's position as to whether or not Tenant is, in
fact, in violation of a Nondiscrimination Statute and, if so,
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what steps, if any, Tenant intends to take to remedy such
violation. If Tenant fails or refuses either to meet, to
demonstrate that Tenant is not in violation of a
Nondiscrimination Statute, or to take steps to remedy any
existing violation of a Nondiscrimination Statute, Landlord, as
its sole remedy under this Lease, shall have the right to
report to the appropriate Nondiscrimination Agency Landlord's
allegation that Tenant is in violation of a Nondiscrimination
Statute. Nothing contained herein shall be construed to vest
in Landlord the right to institute legal proceedings or seek
damages against Tenant, it being understood and agreed that the
imposition of any Nondiscrimination Sanctions against Tenant by
a Nondiscrimination Agency or court of competent jurisdiction
shall be Tenant's sole liability for a breach of its
obligations under Section 40.04 hereof. The remedies set forth
in this Section 40.05 shall be the sole remedies available to
Landlord for an alleged breach of Tenant's obligations under
Section 40.04 hereof or an alleged violation of a
Nondiscrimination Statute, and no other remedies set forth
elsewhere in this Lease shall be applicable to such an alleged
breach or violation.
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ARTICLE 40A
INVESTIGATIONS, ETC.
Section 40A.01. Cooperation In Investigations.
(a) Subject to the exclusions set forth in paragraph
(b) of this Section 40A.01, Tenant shall during the term of
this Lease:
(i) cooperate fully, and utilize good faith
efforts to cause its Members to cooperate fully, with
any Investigation; and
(ii) report, and utilize good faith efforts to
cause its Members to report, in writing to the
Commissioner, any solicitation of which Tenant has
actual knowledge of money, goods, requests for future
employment or other benefit or thing of value, by or
on behalf of any employee of the City or other Person,
related to the obtaining and/or performance of the
Transaction Documents or any of them.
(b) The provisions of paragraph (a) of this Section
shall not apply:
(i) to any information or document known,
prepared or obtained by Tenant or its Members (and the
sources of such information or documents) that is
protected from compelled disclosure by any present or
future "Shield Law" or any other statute,
constitutional provision, rule, regulation or case law
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related to the rights of reporters and/or news
organizations;
(ii) to any Person who refuses to testify based
on a properly invoked privilege against
self-incrimination if such Person is not given
assurances that his or her statement, and any
information from such statement, will not be used
against such Person in any subsequent criminal
proceeding in any forum (provided, however, that any
Person given such assurances shall have the right to
have the legal sufficiency of such assurances
adjudicated by a court of competent jurisdiction as a
precondition of the applicability of paragraph (a) of
this Section to such Person); and
(iii) to any construction contract or other
agreement (or the obtaining or performance thereof)
with parties other than the City or EDC, including,
without limitation, any contract or agreement being
funded through any Transaction Document.
Section 40A.02. Hearing. If Tenant or any Member of
Tenant refuses to testify in an Investigation and, in
connection with such failure to testify, the Commissioner
determines that Tenant has failed to cooperate in the
Investigation in violation of the provisions of Section 40A.01,
the Commissioner may request the Deputy Mayor to convene a
hearing (the "Hearing"), upon not less than five (5) days'
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written notice to Tenant, to determine if any penalties should
be imposed for the Tenant's failure so to cooperate.
Section 40A.03. Adjournments of Hearing, etc.
(a) Tenant shall have the right to require that the
Hearing be adjourned for a period of not more than thirty (30)
days.
(b) The Deputy Mayor may grant other adjournments of
the Hearing in the exercise of his or her reasonable
discretion; provided that, in the case of an adjournment
occasioned by Tenant's failure to appear, the Deputy Mayor may,
if he or she determines that there was no reasonable cause for
the failure to appear, impose an Interim Penalty.
(c) The City shall not incur any penalty or damages
for delay or otherwise occasioned by an adjournment of the
Hearing.
Section 40A.04. Penalties.
(a) The Deputy Mayor may impose a penalty during an
adjournment due to Tenant's failure to appear or proceed with
the scheduled Hearing pursuant to Section 40A.03(b) ("Interim
Penalty") of not more than $1,000.00 per day for each day of
such adjournment; provided, however, that such daily penalties
shall cease to accrue from and after the date that Tenant makes
itself available to appear at or proceed with the scheduled
Hearing or gives written notice to the Deputy Mayor that it
does not intend to appear at or proceed with the scheduled
Hearing, in which event the Deputy Mayor shall have the right
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to continue the Hearing and reach a determination without
Tenant's participation.
(b) If, after the Hearing, the Deputy Mayor
determines that Tenant failed to cooperate in the Investigation
in violation of Section 40A.01, and Tenant fails to commence to
cooperate fully in such Investigation within five (5) Business
Days following its receipt of written notice of such
determination, the Deputy Mayor may:
(i) Impose a penalty ("Final Penalty"), which
may not, in conjunction with any Interim Penalty
imposed during the term of the Lease exceed $500,000
in the aggregate during the term of this Lease; and/or
(ii) Disqualify Tenant for a period not to exceed
five (5) years from submitting bids for, or
transacting business with, or entering into or
obtaining any contract, lease, permit or license with
or from the City, other than as contemplated in the
Transaction Documents.
Notwithstanding anything to the contrary contained
herein, in the event that Tenant is found after the Hearing to
have failed to cooperate in the Investigation, but nonetheless
is not subjected to a Final Penalty because Tenant commences to
cooperate fully in such Investigation within five (5) Business
Days following its receipt of written notice of such
determination, Tenant shall be liable for the cost of
conducting such Hearing, not to exceed $5,000.
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Section 40A.05. Criteria for Determination. The
Deputy Mayor shall consider and address in reaching his or her
determination and in assessing an appropriate Interim Penalty,
Final Penalty, and/or disqualification, if any, the factors in
subsections (a) and (b) below. He or she may also consider, if
relevant and appropriate, the criteria established in
subsections (c) and (d) below in addition to any other
information which may be relevant and appropriate:
(a) Tenant's good faith endeavors or lack thereof to
cooperate fully with the Investigation, including but not
limited to the discipline, discharge or disassociation of any
Person failing to testify, the production of accurate and
complete books and records, and the forthcoming testimony of
all other Members, agents, assignees or fiduciaries whose
testimony is sought. The Deputy Mayor shall take into account
whether the discipline, discharge or disassociation of any
Person failing to testify would violate any union or other
contract.
(b) The relationship of the Person who refused to
testify to Tenant, including, but not limited to, whether the
Person whose testimony is sought has an ownership interest in
Tenant and/or the degree of authority and responsibility the
Person has within Tenant.
(c) The nexus of the testimony sought to Tenant and
the Transaction Documents.
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(d) The effect a penalty may have on an unaffiliated
and unrelated party or Entity that has a significant interest
in Tenant, provided that (i) such unrelated party or Entity has
given actual notice to the Commissioner or EDC upon the
acquisition of the interest, or (ii) at the Hearing such
related party or Entity gives notice and proves that such
significant interest was previously acquired; under either
circumstance, such unrelated party or Entity must present
evidence at the Hearing demonstrating the potential adverse
impact a penalty will have on such party or Entity.
Section 40A.06. Payment of Penalties. Any Interim or
Final Penalty hereunder shall, upon imposition thereof, be
applied to reduce the aggregate of Offset Amounts then
available to Tenant under Article 4 and the balance, if any,
shall be paid promptly as additional Rental or, at Landlord's
option, such balance shall be applied to reduce EDC's
obligations with respect to any undisbursed Funding.
Section 40A.07. Definitions.
As used in this Article 40A:
"Investigation" means any investigation, audit or
inquiry conducted by the Department of Investigation with
respect to the obtaining and/or performance of the Transaction
Documents or any of them.
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"Transaction Documents" means this Lease, Funding
Agreement #1, Funding Agreement #2, Funding Agreement #3,
Funding Agreement #4 and the Power Agreement.
"Department of Investigation" means the Department of
Investigation of the City or any City department or agency
succeeding to the functions thereof.
"Commissioner" means the Commissioner or Acting
Commissioner of the Department of Investigation.
"Deputy Mayor" means the Deputy Mayor for Finance and
Development of the City (or the officer of the City succeeding
to the functions of that office).
"Entity" means any firm, partnership, corporation,
association or Person that receives monies, benefits, licenses,
leases or permits from or through the City or otherwise
transacts business with the City.
"Member" means any Person associated with another
Person or Entity as a partner, director, officer, principal or
employee.
Section 40A.08. Exclusive Remedy. Notwithstanding
anything to the contrary contained in this Lease, the remedies
set forth in Section 40A.04 hereof shall be the sole and
exclusive remedies available to Landlord in the event that
Tenant breaches any of its obligations under this Article 40A,
and no other remedies, including, without limitation, the
remedies set forth elsewhere in this Lease for defaults by
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Tenant in the performance of its obligations under this Lease,
shall be applicable to a breach by Tenant of any of its
obligations under this Article 40A.
Section 40A.09. Right to Dispute Determinations of
Deputy Mayor. Nothing contained herein shall be construed to
limit in any manner whatsoever Tenant's right or ability to
challenge or seek to enjoin, overturn, set aside or modify any
action taken, determination made or penalty imposed by the
Deputy Mayor pursuant to the provisions of this Article 40A.
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ARTICLE 41
EMPLOYMENT REPORTING AND REQUIREMENTS
Section 41.01 Employment Reporting and Requirements.
(a) Within seven (7) days after execution of
this Lease, Tenant, if it has not already done so, shall
complete and deliver to the City a questionnaire, on the form
attached hereto as Exhibit N, or such other employment
reporting form requiring the provision of substantially similar
information and detail as may be adopted and widely used by the
City and its agencies, setting forth, in substance, how many
and what types of jobs Tenant in good faith estimates will be
transferred to or created at the Premises as of the Operational
Date (the "Questionnaire"). In addition, with respect to each
fiscal year of the City (i.e., July 1 through June 30)
beginning with the fiscal year in which the Operational Date
occurs and ending with the fiscal year in which occurs the
seventh (7th) anniversary of the Possessory Date, Tenant shall,
not later than the September 15th following each such fiscal
year, complete the Questionnaire with respect to jobs at the
Premises during such fiscal year. Landlord acknowledges that
the number and types of jobs to be set forth on the initial
Questionnaire by Tenant will represent Tenant's good faith
expectation based upon manning levels, conditions, technology
and collective bargaining agreements in effect as of the date
of such initial Questionnaire. Landlord acknowledges that
Tenant has made no representation as to the number of jobs
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expected to be retained and/or created at the Premises under
conditions resulting from future technological advances or
modifications to existing collective bargaining agreements or
new collective bargaining agreements that may become effective
during the term of this Lease.
(b) Tenant acknowledges that the submission of
the Questionnaire regarding the number and types of jobs
retained and/or created at the Premises is of material concern
to Landlord and agrees that Tenant's covenants in this Article
41 are a material inducement for Landlord to enter into this
Lease.
(c) Tenant acknowledges that if Tenant should
fail to observe the covenants contained in this Article 41,
Landlord shall be entitled to injunctive relief, which shall be
its exclusive remedy.
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ARTICLE 42
APPOINTMENT OF LEASE ADMINISTRATOR
Section 42.01. Appointment of Lease Administrator.
Landlord hereby appoints EDC as Lease Administrator, to act as
Landlord's agent, with full authority to bind Landlord, to
administer this Lease on behalf of Landlord for the duration of
the Term. The appointment of EDC as Lease Administrator shall
not be construed as an assignment of Landlord's interest in
this Lease or as releasing Landlord from any of its obligations
hereunder. For purposes of this Article 42, EDC shall be
deemed to include any affiliated entity of EDC that is
controlled by EDC and designated by EDC to act as Lease
Administrator.
Section 42.02. Revocation of Appointment. Landlord
shall have the right to revoke its appointment of EDC as Lease
Administrator at any time during the Term; provided, however,
that no such revocation shall be binding upon Tenant until the
Business Day following Tenant's receipt of written notification
from Landlord that Landlord has revoked its appointment of EDC
as Lease Administrator.
Section 42.03. Binding Nature of Lease
Administrator's Actions. For so long as Tenant has not become
bound by any revocation of Landlord's appointment of EDC as
Lease Administrator pursuant to the provisions of Section
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42.02, Landlord shall be fully bound by and liable for any act
or omission by EDC in connection with this Lease (without
regard to whether such act or omission may conflict with or
exceed the authority granted by Landlord to Lease Administrator
pursuant to any oral understanding or written agreement, unless
and from and after the date that Tenant has received written
notice from Landlord of any limitation on EDC's authority)
including, without limitation: (i) any notice, approval,
determination, consent, or withholding of approval or consent,
given or rendered by EDC, (ii) any failure by EDC to act within
any time period specified in this Lease, (iii) any failure by
EDC to cause the Possessory Date to occur in accordance with
the terms of this Lease or (iv) any other failure by EDC to
perform any act or refrain from any act in accordance with the
provisions of this Lease, in each case with the same force and
effect as if such act or omission by Lease Administrator had
been performed or omitted by Landlord. Nothing contained
herein shall be deemed to grant to Landlord any right to cure
any act or omission of EDC or any entitlement to any extension
of any time period contained in this Lease.
Section 42.04. Obligation of Landlord to Perform
Certain Acts. Landlord and Tenant acknowledge and agree that
certain acts to be performed by Landlord hereunder may not be
susceptible of being performed by EDC on behalf of Landlord.
Such acts shall include, but shall not be limited to the
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execution of the Agreement of Sale and Purchase, a deed, and
certain other documents in connection with Tenant's exercise of
its option to purchase the Property pursuant to Article 21
hereof. Notwithstanding anything to the contrary contained
herein, Tenant shall be under no obligation whatsoever to
notify Landlord of any acts required to be performed hereunder
that are not susceptible of being performed by Lease
Administrator on Landlord's behalf, and to the extent that
Tenant is required pursuant to any provision of this Lease to
give Landlord notice of the requirement to perform any such
acts, the giving of notice by Tenant to Lease Administrator
shall be deemed sufficient and binding in all respects upon
Landlord.
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ARTICLE 43
MISCELLANEOUS
Section 43.01. Captions. The captions of this Lease
are for the purpose of convenience of reference only, and in no
way define, limit or describe the scope or intent of this Lease
or in any way affect this Lease.
Section 43.02. Table of Contents. The Table of
Contents is for the purpose of convenience of reference only,
and is not to be deemed or construed in any way as part of this
Lease.
Section 43.03. Reference to Landlord and Tenant. The
use herein of the neuter pronoun in any reference to Landlord
or Tenant shall be deemed to include any individual Landlord or
Tenant, and the use herein of the words "successors and
assigns" or "successors or assigns" of Landlord or Tenant shall
be deemed to include the heirs, legal representatives and
assigns of any individual Landlord or Tenant.
Section 43.04. Person Acting on Behalf of a Party
Hereunder. If more than one Person is named as, or becomes a
party hereunder, the other party may require the signatures of
all such Persons in connection with any notice to be given or
action to be taken hereunder by the party acting through such
Persons. Each Person acting through or named as a party shall
be fully and jointly and severally liable for all of such
party's obligations hereunder. Any notice by a party to any
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Person acting through or named as the other party shall be
sufficient and shall have the same force and effect as though
given to all Persons acting through or named as such other
party.
Section 43.05. Comptroller's Statutory Right of
Audit. Nothing contained in this Lease shall be construed to
affect, expand, diminish, impair or compromise the statutory
right of the Comptroller of the City set forth in Section 93(b)
of the New York City Charter, nor shall anything contained in
this Section 43.05 be construed to impose, affect or expand in
any manner whatsoever any obligations of Tenant beyond those
obligations specifically set forth elsewhere in this Lease.
Section 43.06. Limitation on Liability.
(a) Landlord's Exculpation. Except as
specifically set forth to the contrary in this Section
43.06(a), there shall be no limitation on the liability of
Landlord, or any other Person who has at any time acted as
Landlord hereunder, for damages or otherwise in connection with
this Lease. In the event that it is determined by a court of
competent jurisdiction that Landlord is liable to Tenant for
damages or otherwise in connection with this Lease (the amount
of such damages or otherwise determined to be the liability of
Landlord is hereinafter referred to as "Landlord's Liability
Amount"), then, notwithstanding anything to the contrary
contained herein, Landlord's Liability Amount shall be payable
as follows: (i) for a period not to exceed five (5) years from
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the date of determination of Landlord's Liability Amount,
Tenant shall take an offset against Rental (exclusive of
Impositions and the College Point Improvement Fund Payments)
with respect to all or such portion of Landlord's Liability
Amount (the "Offset Liability Portion") which, with interest at
the rate of eight percent (8%) per annum, and taking into
account such factors as whether Tenant is entitled to any other
offsets against Rental and the number of years remaining in the
Term, may be offset over a period not to exceed five (5) years,
and (ii) the excess of Landlord's Liability Amount over the
Offset Liability Portion (the "Remaining Liability Portion")
shall be due and payable by Landlord to Tenant immediately upon
the determination of Landlord's Liability Amount. In the event
that Tenant exercises its option to purchase the Property
pursuant to Article 21 hereof, the Purchase Price shall be
reduced by any unpaid portion of Landlord's Liability Amount
and the excess, if any, of such unpaid portion over the
Purchase Price shall be due and payable by Landlord to Tenant
within forty-five (45) days after the final determination of
the Purchase Price and any adjustments thereto. In the event
that either (i) this Lease is terminated for any reason other
than the exercise by Tenant of its option to purchase the
Property or (ii) Tenant shall become entitled to any additional
right of offset against all or any portion of Rental pursuant
to the terms of this Lease, then Tenant shall pay to Tenant,
within forty-five (45) days thereafter, any unpaid portion of
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Landlord's Liability Amount; provided, however, that if the
remainder of the Term is of sufficient duration to permit such
additional offset to be taken after offsetting the Offset
Liability Portion, Landlord may elect, as an alternative to the
immediate payment of the remainder of Landlord's Liability
Amount, to have such additional right of offset accrue interest
at the rate of eight percent (8%) per annum and thereafter be
offset immediately after the full amount of the Offset
Liability Portion has been fully offset. None of the
directors, officers, partners, principals, shareholders,
employees, agents or servants of Landlord shall have any
liability (personal or otherwise) hereunder or be subject to
levy, execution or other enforcement procedure for the
satisfaction of any remedies of Tenant available hereunder.
(b) Tenant's Exculpation. Notwithstanding
anything to the contrary in this Lease, except for (i)
liability for conversion, fraud, fraud of creditors, breach of
trust or intentional damage to the Premises, (ii) liability of
Tenant for Rental due or accrued and unpaid, (iii) liability of
Tenant to Indemnitees pursuant to Article 20, (iv) all other
obligations of Tenant hereunder which are expressly provided
herein to survive termination of this Lease; and (v) any
non-monetary rights or remedies in equity, Tenant's liability
hereunder for damages or other monetary amounts or otherwise by
reason of any Default, Event of Default or breach under this
Lease, or any other claim against Tenant arising under this
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Lease, shall be limited to Tenant's interest in the Premises,
including, without limitation, rents or profits collectible but
not yet collected, the proceeds of any insurance policies
payable to Tenant covering or relating to the Premises, any
awards payable to Tenant in connection with any condemnation of
the Premises or any part thereof, and any other rights,
privileges, licenses, franchises, claims, causes of action or
other interests, sums or receivables appurtenant to the
Premises. None of the directors, officers, principals,
partners, shareholders, employees, agents, or servants of
Tenant shall have any liability (personal or otherwise) under
this Lease. No property or assets of Tenant or any of the
directors, officers, partners, principals, venturers,
shareholders, employees, agents or servants of Tenant shall be
subject to levy, execution or any other enforcement procedure
for the satisfaction of Landlord's remedies or claims arising
under this Lease. This Section shall survive the Expiration
Date.
(c) Governs Lease. The provisions of this
Section 43.06 shall govern every other provision of this Lease.
The absence of explicit reference to this Section 43.06 in any
particular provision of this Lease shall not be construed to
diminish the application of this Section 43.06 to such
provision. This Section 43.06 shall survive the Expiration Date.
(d) Other Remedies. Nothing in this Section
43.06 is intended to limit the remedies available to any party
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under this Lease other than in the manner and to the extent
provided in this Section 43.06. Nothing in this Section 43.06
is intended to prevent or preclude a party from obtaining
injunctive or declaratory relief with respect to any claim
arising under this Lease or in connection with the Premises.
Section 43.07. Remedies Cumulative. Each right and
remedy of Landlord or Tenant provided for in this Lease shall
be cumulative and shall be in addition to every other right or
remedy provided for in this Lease or now or hereafter existing
at law or in equity or by statute or otherwise, and the
exercise or beginning of the exercise by Landlord or Tenant of
any one or more of the rights or remedies provided for in this
Lease or now or hereafter existing at law or in equity or by
statute or otherwise shall not preclude the simultaneous or
later exercise by Landlord of any or all other rights or
remedies provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise.
Section 43.08. Merger. Unless Landlord, Tenant and
all Mortgagees sign and record an agreement to the contrary,
there shall be no merger of this Lease or the leasehold estate
created hereby with the fee estate in the Premises or any part
thereof by reason of the same Person acquiring or holding,
directly or indirectly, this Lease and the leasehold estate
created hereby or any interest in this Lease or in such
leasehold estate as well as the fee estate in the Premises.
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Section 43.09. Performance at Party's Sole Cost and
Expense. The exercise by Landlord or Tenant of any of its
rights, and the rendering and/or performance by Landlord or
Tenant of any of its obligations, shall be at the sole cost and
expense of the party so exercising, rendering or performing
unless expressly provided to the contrary in this Lease.
Section 43.10. Relationship of Landlord and Tenant.
This Lease is not to be construed to create a partnership or
joint venture between the parties, it being the intention of
the parties hereto only to create a landlord and tenant
relationship.
Section 43.11. Waiver, Modification, etc. No
covenant, agreement, term or condition of this Lease shall be
changed, modified, altered, waived or terminated except by a
written instrument of change, modification, alteration, waiver
or termination executed by Landlord and Tenant. No waiver of
any Default shall affect or alter this Lease, but each and
every covenant, agreement, term and condition of this Lease
shall continue in full force and effect with respect to any
other then existing or subsequent Default thereof.
Section 43.12. [Intentionally Omitted].
Section 43.13. Governing Law. This Lease shall be
governed by, and be construed in accordance with, the laws of
the State of New York.
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Section 43.14. Successors and Assigns. The
agreements, terms, covenants and conditions herein shall be
binding upon, and inure to the benefit of, Landlord and Tenant
and, except as otherwise provided herein, their respective
successors and assigns.
Section 43.15. Publicity. Landlord and Tenant will
consult and cooperate with each other with respect to
(a) any and all press conferences or public
ceremonies held by either of them, or their agents or
representatives, and
(b) any statements or announcements issued by
Landlord or Tenant, or their agents or representatives, to any
news media announcing the execution of this Lease, groundbreaking
for the Project and/or the interim relocation Car Pound and no
publicity announcement or other media release with respect
thereto shall occur without the prior approval of both Lease
Administrator and Tenant; provided, however, that this
provision is not intended to restrict The New York Times
newspaper from reporting any news. Officials of Landlord and
Lease Administrator will have the right to participate in any
press conferences or public ceremonies described in this
Section 43.15.
Section 43.16. [Intentionally Omitted]
Section 43.17. [Intentionally Omitted]
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Section 43.18. Termination by Tenant. Whenever Tenant
shall have an option to terminate this Lease, such option shall
be exercised by written notice thereof to Landlord; this Lease
shall terminate as otherwise provided in this Lease or, if no
specific provision is made therefor, upon the giving of such
notice. From and after termination of this Lease by Tenant,
except as otherwise specifically provided or with respect to
any provisions specifically stated to survive the Expiration
Date, (a) Tenant shall thereafter have no rights, obligations
or liabilities under this Lease with respect to any period
after the Expiration Date, and (b) Landlord shall have no
further rights, obligations or liabilities under this Lease.
Section 43.19. Hazardous Substances, Etc.
(a) Landlord covenants that it will not place or
permit or suffer to be placed on the Premises any Hazardous
Substances in violation of any Requirements and that if any
Hazardous Substances are placed on the Premises between the
Lease Execution Date and the Possessory Date, Landlord will
take all required clean-up and other remedial action to rid the
Premises of such Hazardous Substances and will indemnify Tenant
against the cost of any required clean-up or other remedial
action required after the Possessory Date by reason of the
presence of such Hazardous Substances placed on the Premises
between the Lease Execution Date and the Possessory Date.
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(b) Tenant covenants that, from and after the
Possessory Date, it will not place or permit or suffer any
Hazardous Substances to be placed on the Premises in violation
of any Requirements, and that if any Hazardous Substances are
placed on the Premises after the Possessory Date, Tenant will
take all required clean-up and other remedial action to rid the
Premises of such Hazardous Substances and will indemnify
Landlord against the cost of any required clean-up or other
remedial action required after the Possessory Date by reason of
the presence of such Hazardous Substances on the Premises.
(c) The respective rights and obligations of
Landlord and Tenant with respect to any Hazardous Substances
discovered at the Premises that are determined to have been
placed at the Premises prior to the Lease Execution Date shall
be governed by applicable laws in effect at the time of such
discovery, and nothing contained in this Lease shall be
construed as enlarging, diminishing or waiving any of
Landlord's or Tenant's rights, obligations or liabilities
pursuant to such applicable laws.
(d) In the event that (i) any clean-up or other
remedial action to rid the Premises of Hazardous Substances is
undertaken by or on behalf of Landlord or Tenant during the
period commencing on the Possessory Date and ending on the date
after Substantial Completion that Tenant first occupies the
Premises for the conduct of its business, and (ii) such
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clean-up or other remedial action either (x) is required as the
result of a breach of Landlord's covenant in Section 43.19(a)
hereof or (y) is determined to be the obligation or
responsibility of Landlord as more particularly set forth in
Section 43.19(c) hereof, then, for all purposes of this Lease
including, without limitation, the computation of periods of
abatement of Rental, the Possessory Date shall be recomputed
and deemed to have occurred on the date that is the date of the
Possessory Date as originally calculated, plus the number of
days in the Hazardous Substances Extension Period during which
Tenant is delayed by such clean-up or remedial action in
causing Substantial Completion and/or the Operational Date to
occur. For purposes of this Lease, the term "Hazardous
Substances Extension Period" shall mean the period commencing
on (1) the date on which the need for such clean-up or other
remedial action is discovered, and ending on (2) the date on
which such clean-up or other remedial action is completed.
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ARTICLE 44
STORM DRAINAGE SYSTEM
Notwithstanding any other provision hereof, if Tenant
shall have submitted to the City's Department of Environmental
Protection, Division of Sewers ("DEP Sewers") a completed site
connection proposal application, in conformance with all of
DEP'S Sewers' rules, regulations and requirements, with respect
to its storm drainage plan for the Project (which drainage plan
assumes that the Project will be an approximately 720,000
square foot building and will not require additional on-site
retention), and DEP Sewers shall not have given final approval
of such application without any revisions or conditions by the
date that is the earlier to occur of (i) two (2) months
following the date on which such submission is deemed complete
by DEP Sewers and (ii) six (6) months after the submission of
such site connection proposal application accompanied by all of
the documents required by the Site Connection Proposal Form
attached hereto at Exhibit O, then Tenant shall have the right
to terminate this Lease upon thirty (30) days notice to
Landlord. Such termination shall be effective upon the
expiration of such thirty (30) day period; provided, however,
that if DEP Sewers gives such final approval within such thirty
(30) day period, Tenant's termination notice shall have no
effect and this Lease shall continue in full force and effect.
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ARTICLE 45
BROKERS
Each of Landlord and Tenant represents to the other
that it has not dealt with any broker, finder or like entity in
connection with this Lease or the transactions contemplated
hereby, and each party shall indemnify the other against any
claim for brokerage commissions, fees or other compensation by
any Person arising out of any conversations, negotiations or
dealings had by such Person with the indemnifying party in
connection with this Lease or the transactions contemplated
hereby.
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ARTICLE 46
WHITESTONE ROAD
As a material inducement to Tenant to enter into this
Lease, Landlord hereby grants to Tenant the option to perform
the work necessary to reconstruct, in accordance with New York
City Department of Transportation standards, on behalf of
Landlord, the Whitestone Expressway Service Road between 20th
Avenue and Linden Place, a city street running along the
easterly side of the Premises and along the easterly side of
the premises adjacent to the Premises currently owned by the
United States Postal Service, as such street is more
particularly depicted in Appendix B to Funding Agreement #4
(the "Whitestone Road"), on all of the terms and conditions set
forth in Funding Agreement #4.
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IN WITNESS WHEREOF, Landlord and Tenant have executed
this Lease as of the day and year first above written.
THE CITY OF NEW YORK
ATTEST: [SEAL] By:
----------------------------
- -------------------------
City Clerk
Approved as to Form:
- --------------------------
Acting Corporation Counsel
NEW YORK CITY ECONOMIC
DEVELOPMENT CORPORATION
By:
----------------------------
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STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this day of , 199 , before me
----------
personally came , to me known and
known to me to be [a Deputy] Mayor of The City of New York and
the same person who executed the foregoing instrument, and he
or she acknowledged that he or she executed the foregoing
instrument on behalf of the City of New York and pursuant to
the authority vested in him or her.
---------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this day of , 199 , before me
----------
personally came , to me known and
known to me to be the City Clerk of the City of New York, the
corporation described in and which executed the foregoing
instrument, and who being by me duly sworn, deposes and says
that he resides at , New York, New York; that he
knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed
as provided by law; and that he signed his name thereto as City
Clerk by like authority.
--------------------------
Notary Public
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STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this day of , 199 , before me
---------
personally came , to me known,
who, being by me duly sworn, did depose and say that he or she
resides at ; that he or she is the
of NEW YORK CITY ECONOMIC DEVELOPMENT
CORPORATION, the corporation described in and which executed
the foregoing instrument; that he or she knows the seal of said
corporation; that the seal affixed to said instrument is such
corporation seal; that it was so affixed by order of the board
of directors of said corporation, and that he or she signed his
or her name thereto by like order.
----------------------------
Notary Public
-259-
EXHIBIT C
MAXIMUM IMPROVEMENT PILOT
EXHIBIT C
SCHEDULE OF MAXIMUM IMPROVEMENTS PILOT PAYMENTS (ILLUSTRATIVE)
Maximum Improvements PILOT in Initial Improvements PILOT Period
Deemed Fair Market Value per square foot $ 110.00
Multiply times 45%
= Deemed Assessed Value per square foot $ 49.50
Multiply times Stipulated Tax Rate 10.698%
= Maximum Improvements PILOT per square
foot before abatement $ 5.30
Less: 100% abatement $ 5.30
= Maximum Improvements PILOT per square
foot after abatement $ 0.00
Deemed
Fair Market Maximum Maximum
Value Improvements Improvements
per square PILOT per PILOT per
foot sq. foot sq. foot
Maximum Improvements PILOT in (decreases before Percentage $ after
Remaining Improvements PILOT Period 1%/year) abatement abatement abatement abatement
- ----------------------------------- ---------- ----------- --------- ----------- -----------
Maximum Improvements PILOT before
abatement in Initial Improvements
PILOT Period $5.30 100% $5.30 $0.00
assumed to be tax year 4 $110.00 $5.30 100% $5.30 $0.00
assumed to be tax year 5 $108.90 $5.24 100% $5.24 $0.00
(cont'd on next page)
Deemed
Fair Market Maximum Maximum
Value Improvements Improvements
per square PILOT per PILOT per
foot sq. foot sq. foot
Maximum Improvements PILOT in (decreases before Percentage $ after
Remaining Improvements PILOT Period 1%/year) abatement abatement abatement abatement
- ----------------------------------- ---------- ----------- ---------- ---------- ---------
assumed to be tax year 6 $107.81 $5.19 100% $5.19 $0.00
assumed to be tax year 7 $106.73 $5.14 100% $5.14 $0.00
assumed to be tax year 8 $105.67 $5.09 100% $5.09 $0.00
assumed to be tax year 9 $104.61 $5.04 100% $5.04 $0.00
assumed to be tax year 10 $103.56 $4.99 100% $4.99 $0.00
assumed to be tax year 11 $102.53 $4.94 100% $4.94 $0.00
assumed to be tax year 12 $101.50 $4.89 100% $4.89 $0.00
assumed to be tax year 13 $100.49 $4.84 100% $4.84 $0.00
assumed to be tax year 14 $ 99.48 $4.79 100% $4.79 $0.00
assumed to be tax year 15 $ 98.49 $4.74 100% $4.74 $0.00
assumed to be tax year 16 $ 97.50 $4.69 90% of tax $4.27 $0.42
year 15
assumed to be tax year 17 $ 96.53 $4.65 80% of tax $3.79 $0.86
year 15
assumed to be tax year 18 $ 95.56 $4.60 70% of tax $3.32 $1.28
year 15
assumed to be tax year 19 $ 94.61 $4.55 60% of tax $2.84 $1.71
year 15
assumed to be tax year 20 $ 93.66 $4.51 50% of tax $2.37 $2.14
year 15
assumed to be tax year 21 $ 92.72 $4.46 40% of tax $1.90 $2.56
year 15
assumed to be tax year 22 $ 91.80 $4.42 30% of tax $1.42 $3.00
year 15
assumed to be tax year 23 $ 90.88 $4.37 20% of tax $0.95 $3.42
year 15
assumed to be tax year 24 $ 89.97 $4.33 10% of tax $0.47 $3.86
year 15
- 2 -
(cont'd on next page)
Deemed
Fair Market Maximum Maximum
Value Improvements Improvements
per square PILOT per PILOT per
foot sq. foot sq. foot
Maximum Improvements PILOT in (decreases before Percentage $ after
Remaining Improvements PILOT Period 1%/year) abatement abatement abatement abatement
- ----------------------------------- ----------- ----------- ---------- --------- ------------
assumed to be tax year 25 $ 89.07 $4.29 10% of tax $0.47 $3.82
year 15
assumed to be tax year 26 $ 88.18 $4.25 $0.00 $4.25
assumed to be tax year 27 $ 87.30 $4.20 $0.00 $4.20
assumed to be tax year 28 $ 86.42 $4.16 $0.00 $4.16
assumed to be tax year 29 $ 85.56 $4.12 $0.00 $4.12
assumed to be tax year 30 $ 84.70 $4.08 $0.00 $4.08
assumed to be tax year 31 $ 83.86 $4.04 $0.00 $4.04
assumed to be tax year 32 $ 83.02 $4.00 $0.00 $4.00
Note: Tenant is entitled to an abatement of the Improvements PILOT for a
total of 25 years from and after the Construction Commencement Date.
The above illustrative schedule assumes:
- construction takes three years (and therefore the first "Tax Year" is
in the City's first fiscal tax year following beginning of
construction).
- Therefore, the first year of the "Remaining Improvements Tax Period"
will be in Tax Year 4.
- 3 -
EXHIBIT D
MAXIMUM LAND PILOT
EXHIBIT D
SCHEDULE OF MAXIMUM LAND PILOT
Land PILOT for period from Lease Execution Date
to Possessory Date: $0
Maximum Land PILOT for Initial Land PILOT Period
Site size (in square feet) 1,382,420
Stipulated FMV per square foot $4.50
= Stipulated Fair Market Value $6,220,890
Multiply times 45%
= Stipulated Assessed Value $2,799,401
Multiply times Stipulated Tax Rate 10.698%
Maximum Land PILOT before abatement
in Initial Land PILOT Period $299,480
Less Abatement in Initial Land PILOT Period $100,000
Maximum Land PILOT in each year of
Initial Land PILOT Period $199,480
Max. Land PILOT Max. Land PILOT
Before Substantial After Substantial
Completion Date Completion Date
Maximum
Maximum Maximum Land
Land PILOT Land PILOT PILOT
Maximum Land PILOT Before After After
in Remaining Land PILOT Period Abatement Abatement Abatement Abatement Abatement
- ------------------------------ ---------- --------- ---------- --------- ---------
Maximum Land PILOT before abatement
in Initial Land PILOT Period $299,480
Plus 4% increase per year of
Remaining Land PILOT Period:*
year 1 311,459 100,000 211,459 200,000 111,459
year 2 323,917 100,000 223,917 200,000 123,917
year 3 336,874 100,000 236,874 200,000 136,874
(cont'd on next page)
* The first such 4% increase to take place as of the beginning on the first full Fiscal
Year (July 1 - June 30) of the Remaining Land PILOT Period.
Max. Land PILOT Max. Land PILOT
Before Substantial After Substantial
Completion Date Completion Date
Maximum
Maximum Maximum Land
Land PILOT Land PILOT PILOT
Maximum Land PILOT Before After After
in Remaining Land PILOT Period Abatement Abatement Abatement Abatement Abatement
- ------------------------------ --------- --------- --------- --------- ---------
year 4 350,349 100,000 250,349 200,000 150,349
year 5 364,363 100,000 264,363 200,000 164,363
year 6 378,938 100,000 278,938 200,000 178,938
year 7 394,095 100,000 294,095 200,000 194,095
year 8 409,859 100,000 309,859 200,000 209,859
year 9 426,253 100,000 326,253 200,000 226,253
year 10 443,303 100,000 343,303 200,000 243,303
year 11 461,035 100,000 361,035 200,000 261,035
year 12 479,477 100,000 379,477 200,000 279,477
year 13 498,656 100,000 398,656 200,000 298,656
year 14 518,602 n/a n/a 200,000 318,602
year 15 539,346 n/a n/a 200,000 339,346
year 16 560,920 n/a n/a 200,000 360,920
year 17 583,357 n/a n/a 200,000 383,357
year 18 606,691 n/a n/a 200,000 406,691
year 19 630,959 n/a n/a 200,000 430,959
year 20 656,197 n/a n/a 0 656,197
year 21 682,445 n/a n/a 0 682,445
year 22 709,743 n/a n/a 0 709,743
year 23 738,133 n/a n/a 0 738,133
year 24 767,658 n/a n/a 0 767,658
year 25 796,364 n/a n/a 0 796,364
year 26 830,299 n/a n/a 0 830,299
year 27 863,511 n/a n/a 0 863,511
year 28 898,051 n/a n/a 0 898,051
year 29 933,973 n/a n/a 0 933,973
year 30 971,332 n/a n/a 0 971,332
Tenant is entitled to an abatement of Land PILOT for a total of 20 years. Therefore:
Land PILOT during the Remaining Land PILOT
If the Initial Land PILOT Period Lasts: Period will be abated for the first:
1 year 19 years
2 years 18 years
3 years 17 years
4 years 16 years
5 years 15 years
6 years 14 years
7 years 13 years
- 2 -
(2282J)
EXHIBIT K
AGREEMENT OF SALE AND PURCHASE
between
,
Purchaser
and
,
Seller
Premises:
Block 4183, p/o Lot 1, Block 4242, p/o Lot 1, Block
4243, p/o Lot 1, Block 4280, p/o Lot 1, Block 4281,
p/o Lot 1, Block 4282, Lot 1, Block 4283, Lot 1, Block
4284, Lot 1, Block 4306, p/o Lot 1 and all of Lot 44,
Block 4307, Lot 1 and p/o Lot 4, Block 4308, Lot 1 and
Lot 36, Block 4310, Lot 32, Block 4336, Lot 35 and p/o
Lot 50, Block 4337, Lot 62 and p/o Lot 76, Block 4339,
Lot 46, plus demapped portions of 25th Avenue, 28th
Avenue, 138th Street and 139th Street as identified on
the Tax Map for the Borough of Queens, in the County
of Queens, City and State of New York, and assigned
new tentative tax block and lot numbers Block 4282,
Lot 100 for future identification.
INDEX
ARTICLE SUBJECT PAGE
I Inclusions in Sale 1
II Purchase Price 3
III Closing 4
IV Closing Documents 5
V State of Title 9
VI Violations 10
VII State of New York Gains Tax/
Transfer Taxes 11
VIII Representations, Warranties and
Covenants 17
IX Closing Adjustments 23
X Commissions 25
XI Operations Prior to Closing 26
XII Risk of Loss 27
XIII Conditions to Closing 28
XIV Termination and Remedies 28
XV Notices 31
XVI Intentionally Omitted 33
XVII Miscellaneous 33
EXHIBIT SUBJECT
A Description of Land
*[B Assignment of Lease]
C Bill of Sale
D Post-Closing Adjustment Letter
E FIRPTA Certificate
F Permitted Encumbrances
G Deed
* To be included at Purchaser's option.
THIS AGREEMENT OF SALE AND PURCHASE (this "Agreement")
is made as of this day of by and between
THE CITY OF NEW YORK* ("Seller"), a having an
office at , and
("Purchaser"), a , having an office at
.
W I T N E S S E T H:
Seller hereby agrees to sell to Purchaser and
Purchaser hereby agrees to purchase from Seller, upon the terms
and conditions hereinafter set forth, the "Property" (as such
term is defined in Article I hereof).
NOW THEREFORE, in consideration of the premises and of
the mutual covenants and agreements hereinafter set forth, and
subject to the terms and conditions hereof, Seller and
Purchaser hereby covenant and agree as follows:
ARTICLE I
INCLUSIONS IN SALE
1.1. There shall be included in this sale all of
the following (collectively, the "Property"):
* or such municipal entity to which the City of New York may
transfer its interest in the Land pursuant to Section 5.02
of the Lease.
1.1.1. The land described on Exhibit A annexed
hereto (the "Land").
1.1.2. All rights and appurtenances now or
hereafter pertaining to the Land, including, without
limitation, any and all rights of Seller in and to all
air and development rights, streets, roads, alleys,
easements, streets and ways adjacent to the Land,
strips and gores within or bounding the Land, and
rights of ingress and egress thereto.
1.1.3. The buildings and other improvements
now or hereafter erected or situated on the Land (the
"Building").
1.1.4. All of Seller's right, title and
interest in and to that certain Agreement of Lease
dated as of , 1993, between The City of New
York (the "City") and New York City Economic
Development Corporation with respect to the Property,
which lease was assigned by New York City Economic
Development Corporation to The New York Times Company
(as amended, the "Lease").
1.1.5. All equipment (including, without
limitation, all equipment relating to the printing,
collating, bundling and distribution of newspapers,
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magazines and other periodicals or printed materials,
all of which equipment is the property of the tenant
under the Lease), furnishings and other tangible
personal property (collectively, the "Personal
Property") now or hereafter placed or installed on or
about the Land or Building now or hereafter and used
as part of or in connection with the Land or Building,
excluding personal property owned by the tenant under
the Lease or by any of its subtenants.
1.1.6. All rights to any award made or to be
made or settlement in lieu thereof for damage to the
Land, Building and Personal Property by reason of
condemnation, eminent domain, exercise of police power
or change of grade of any street.
ARTICLE II
PURCHASE PRICE
2.1. The purchase price (the "Purchase Price")
for the Property shall be the sum of *[SIX MILLION NINE HUNDRED
THOUSAND AND 00/100 THS DOLLARS ($6,900,000.00).]
* Correct Purchase Price to be inserted in the event that
such price has been adjusted pursuant to any applicable
provisions of the Lease.
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2.2. The Purchase Price shall be paid by Purchaser at
the "Closing" (as such term is defined in Section 3.1 hereof)
by, at Purchaser's election, either wire transfer, or
cashier's, bank, official, or certified check to Seller drawn
on a U.S. money center bank or a bank that is a member of the
New York Clearing House Association (or any successor body of
similar function). If Purchaser elects to pay the Purchase
Price by wire transfer, Seller shall, within one (1) Business
Day after Purchaser's request therefor, notify Purchaser of the
designated recipient of such wired funds together with all
necessary wiring instructions. The term "Business Days" shall
mean any days other than Saturdays, Sundays and all days on
which banking institutions in New York City are authorized by
law or executive order to close.
2.3. Purchaser and Seller agree that no part of the
Purchase Price is allocable to the Personal Property or any
other personal property.
ARTICLE III
CLOSING
3.1. The closing of the transaction which is the
subject of this Agreement (the "Closing") shall be held on the
date (the "Closing Date") which is the later to occur of (x)
* and (y) the third day following the receipt
* Date to be inserted by Purchaser prior to delivery of this
Agreement to Seller, which date shall be not less than
forty-five (45) days after the date of the Purchase Notice
(as such term is defined in Section 21.01(b) of the Lease).
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by Seller of the Return from the Tax Department (as such terms
are defined in Section 7.1.2 hereof). Purchaser may, at its
option, adjourn the Closing Date one or more times for up to an
aggregate of three hundred sixty-five (365) days by giving
written notice of such adjournments to Seller. The Closing
shall be held at 10:00 A.M. at the office of Bachner, Tally,
Polevoy & Misher, 380 Madison Avenue, New York, New York 10017,
or at the offices of Purchaser's lending institution or such
lending institution's attorneys, or at any other office in New
York City selected by Purchaser, provided that Purchaser gives
Seller notice of such place of Closing at last one day prior to
the Closing.
ARTICLE IV
CLOSING DOCUMENTS
4.1. At the Closing, Seller shall cause to be
delivered to Purchaser the following documents and instruments,
and any other items specified in this Agreement, duly executed
and acknowledged, in recordable form where applicable, and
dated as of the Closing Date:
4.1.1. A Bargain and Sale Deed with Covenant
Against Grantor's Acts containing the covenant
required by Section 13 of the Lien Law of the State of
New York (the "Deed"), substantially in the form
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attached hereto as Exhibit G, in proper statutory form
for recording, duly executed and acknowledged, subject
to any modifications that may be required by law, by
any title company as a condition of issuing title
insurance (provided that such modifications required
by a title company are commercially reasonable),
and/or in order to make such deed recordable in Queens
County, New York.
*[ 4.1.2. An Assignment of Lease in the form of
Exhibit B annexed hereto, together with originals of
the Lease assigned thereby.]
4.1.3. A Bill of Sale in the form of Exhibit C
annexed hereto.
4.1.4. A Post-Closing Adjustment Letter in the
form of Exhibit D annexed hereto.
4.1.5. The certificate in the form of
Exhibit E annexed hereto (the "FIRPTA Certificate").
* To be included at Purchaser's option.
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4.1.6. Affidavits and certificates as to facts
within the knowledge of Seller relevant to the
determination by (the "Title
Company") as to the condition of title or the due
performance by Seller of its obligations hereunder.
4.1.7. The New York State Combined Real
Property Transfer Gains Tax Affidavit Real Estate
Transfer Tax Return and Credit Line Mortgage
Certificate (TP-584).
4.1.8. The Real Property Transfer Tax Return
pursuant to Title 11, Chapter 21 of the New York City
Administrative Code.
4.1.9. The Return, as defined in Section
7.1.2, duly executed and acknowledged by Seller.
4.1.10. Subject to the provisions of Article 28
of the Lease, certified checks in payment of the taxes
to be paid by Seller at Closing pursuant to Sections
7.1.2 and 7.2 hereof; provided, however,
notwithstanding the foregoing, if the aggregate amount
of such taxes does not exceed the Purchase Price,
then, at Seller's election, the payment of such taxes
may be made by giving Purchaser a credit against the
Purchase Price.
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4.1.11. Such other documents as may be
reasonably required by the Title Company to consummate
the transaction which is the subject of this Agreement.
4.1.12. Any other instruments specifically
referred to in this Agreement.
4.2. At the Closing, Purchaser or its designee
shall cause to be delivered to Seller the following documents
and instruments:
4.2.1. The Purchase Price and any other sums
payable by Purchaser at the Closing under any
provisions of this Agreement.
*[ 4.2.2. The Assignment of Lease in the form of
Exhibit B annexed hereto.]
4.2.3. A Post-Closing Adjustment Letter in the
form of Exhibit D annexed hereto.
* To be included at Purchaser's option.
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ARTICLE V
STATE OF TITLE
5.1. As a condition to Purchaser's obligations at
Closing, Seller's title to the Property shall be marketable and
insurable without excess premium subject only to the liens,
encumbrances and title conditions (hereinafter called the
"Permitted Encumbrances") enumerated on Exhibit F annexed
hereto.
5.2. (a) If there shall be any liens, charges,
easements, agreements of record, encumbrances or other
objections to title other than (i) Permitted Encumbrances or
(ii) those that arose after the Lease Execution Date by reason
other than the acts, negligence, misconduct or failure to act
of Seller or EDC (collectively, "Title Objections"), then
Seller shall take all such actions as may be necessary
(including, without limitation, the commencement of and the
diligent prosecution of legal proceedings and the payment of
money) to remove such Title Objections. If Seller fails to
remove any Title Objection in accordance with the provisions of
the immediately preceding sentence, Purchaser, nevertheless,
may elect (at or prior to the Closing) to consummate the
transaction provided for herein subject to any such Title
Objection as may exist as of the Closing with a credit against
the Purchase Price equal to (y) the sum necessary to remove
such Title Objection(s) which can be satisfied by a liquidated
amount, and (z) the reasonably estimated reduction in the fair
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market value of the Property resulting from any Title Objection
which cannot be satisfied by the payment of a liquidated
amount; provided, however, that Seller shall remain fully
liable (which liability shall survive the Closing) for the cost
of removing, and shall reimburse Purchaser for any costs,
claims, damages, obligations, liabilities and expenses
(including, without limitation, legal fees and expenses)
incurred by Purchaser with respect to such Title Objections.
If Purchaser shall not so elect, the provisions of Article XIV
("Termination and Remedies") hereof shall be applicable.
(b) If there shall be any Title Objections
other than those that may be removed by the payment of an
ascertainable sum of money, then, Seller, if it so elects,
shall be entitled to a reasonable adjournment of the Closing
(but in no event more than ninety (90) days) in order to
attempt to remove any such Title Objections. If after such
reasonable period Seller is unable to remove any such Title
Objections, the provisions of Section 5.2(a) and Article XIV
("Termination and Remedies") hereof shall apply.
ARTICLE VI
VIOLATIONS
6.1. All notes or notices of violations of law or
municipal ordinances, orders or requirements noted or issued by
any governmental authority having jurisdiction against or
affecting the Property as the result of the act or omission of
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Seller, the City of New York, any person or entity acting as
the managing agent of Seller's interest in the Lease, or any of
its or their employees, contractors or agents, and not the
responsibility of the tenant under the Lease, shall be complied
with by Seller and removed of record.
ARTICLE VII
STATE OF NEW YORK GAINS TAX/TRANSFER TAXES
7.1. New York State Real Property Transfer Gains
Tax ("Gains Tax"). Subject to the provisions of Article 28 of
the Lease and Seller's rights pursuant to Section 4.1.10 hereof:
7.1.1. If Seller is the City, and New York
State Tax Law Section 1443.3(a) (or any successor or
replacement provision granting a similar exemption
from Gains Tax for transfers by the City) is then in
effect, then at the Closing Seller shall properly
execute and deliver to Purchaser a New York State Form
TP-584 (Combined Real Property Gains Tax Affidavit,
Real Estate Transfer Tax Return and Credit Line
Mortgage Certificate) (or successor or replacement
form) indicating in Schedule B thereof that the
conveyance of the Property to Purchaser is exempt as a
transfer by a governmental entity, and Seller shall
not be obligated to pay any Gains Tax at Closing, nor
shall Purchaser be obligated to complete, deliver or
file a Transferee Questionnaire (as defined in Section
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7.1.2 hereof), but Seller's indemnity obligations
under Sections 7.1.2 and 7.3 hereof, and under Section
3.08 of the Lease, shall continue unaffected.
7.1.2. If Section 7.1.1 hereof is
inapplicable, then Purchaser shall cause to be
delivered to Seller the New York State Real Property
Transfer Gains Tax Questionnaire Transferee (TP-581)
or any successor questionnaire or replacement form
thereof with all relevant information completed
thereon (hereinafter called the "Transferee
Questionnaire"), such Transferee Questionnaire duly
executed by Purchaser and acknowledged. Seller shall,
within ten (10) days after it has received from
Purchaser the duly executed and acknowledged
Transferee Questionnaire, submit (x) such Transferee
Questionnaire, (y) the New York State Real Property
Transfer Gains Tax Questionnaire Transferor (TP-580)
or any successor questionnaire or replacement form
thereof with all relevant information completed
thereon and duly executed by Seller and acknowledged
(hereinafter called the "Transferor Questionnaire"),
and (z) all other documentation required in connection
therewith. Seller shall pay when due any Gains Tax,
penalties, interest and additions to the tax imposed
pursuant to Article 31-B of the Tax Law of the State
of New York or any successor statute thereto
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(hereinafter called the "Gains Law") on the sale of
the Property by Seller to Purchaser as set forth
herein. Seller shall, concurrently with its delivery
of same to the State of New York Department of
Taxation and Finance (the "Tax Department"), deliver
to Purchaser a copy of Seller's transmittal letter
enclosing the documentation delivered by Seller to the
Tax Department in connection with the transaction
which is the subject of this Agreement. Seller shall,
promptly after its receipt of same from the Tax
Department, deliver to Purchaser copies of any
documentation received by Seller from the Tax
Department in connection with the transaction which is
the subject of this Agreement; provided, however, if
Seller receives the original New York State Real
Property Transfer Gains Tax Tentative Assessment and
Return, Transferee Copy (TP-582.2) or any successor
form thereto from the Tax Department, then Seller
shall, promptly after its receipt of same, deliver to
Purchaser the original of such document. Seller shall
deliver to the Title Company at the Closing the
original New York State Real Property Transfer Gains
Tax Tentative Assessment and Return, Transferor Copy
(TP-582) or any successor form thereto executed by
Seller and acknowledged. If a tax is stated as due in
the New York State Real Property Transfer Gains Tax
Tentative Assessment and Return (TP-582) or any
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successor form thereto (hereinafter called the
"Return"), then at the Closing Seller shall deliver to
the Title Company a certified check payable to the
order of the Tax Department for the full amount of the
tax due as set forth therein (or, if greater, the
amount shown on the New York State Real Property
Transfer Gains Tax Supplemental Return (TP-583) or any
successor form thereto (hereinafter called the
"Supplemental Return")), and, if the amount of
consideration (as defined for purposes of the Gains
Law) payable to Seller for the Property has changed
from the amount stated on the Transferee Questionnaire
and Transferor Questionnaire, then Seller shall also
deliver to the Title Company at Closing a completed
Supplemental Return duly executed by Seller and
acknowledged. Seller shall pay the full amount of the
Gains Tax stated on the Return or Supplemental Return
(if greater) at Closing and shall not be entitled to
elect installment payment thereof. Seller further
agrees to pay any additional Gains Tax, interest,
penalties and additions to the tax that may be
assessed after the Closing pursuant to the Gains Law
in connection with the transaction which is the
subject of this Agreement and further agrees to
indemnify and hold Purchaser harmless from and against
any loss or liability including, but not limited to,
attorneys' fees, resulting from Seller's failure to
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pay any tax, interest, penalty or addition to the tax
alleged to be due pursuant to the Gains Law in
connection with the transaction which is the subject
of this Agreement. Seller shall not assert before any
taxing authority, including but not limited to the Tax
Department, that Seller received as consideration an
amount less than the amount reported as consideration
payable by Purchaser on the Transferee Questionnaire
(or, if greater, the adjusted amount of consideration
utilized in computing Gains Tax due pursuant to the
Return or the Supplemental Return, if applicable), and
Seller hereby indemnifies and holds Purchaser harmless
from and against any loss or liability resulting from
Seller's breach of the foregoing provisions of this
sentence.
7.2. State and City Transfer Taxes. Seller and
Purchaser shall comply with all filing and procedural
requirements applicable under, and Seller shall pay all taxes,
together with all interest, penalties and additions to the tax
applicable thereto, payable in connection with the sale of the
Property pursuant to, (i) Article 31 of the Tax Law of the
State of New York or any successor statute or statutes thereto,
and (ii) Title 11, Chapter 21 of the Administrative Code of the
City of New York or any successor statute or statutes thereto.
Such taxes (to the extent reflected as payable in returns
relating thereto executed by Seller and Purchaser at Closing)
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shall be paid by Seller's delivery to the Title Company of
certified checks payable to the applicable taxing authority at
Closing. Any additional amounts of such taxes, interest,
penalties or additions to the tax which are, subsequent to the
Closing, determined to be due or assessed shall be paid by
Seller as and when the same are due and payable or are assessed.
7.3. Indemnity. Seller hereby agrees to
indemnify and hold Purchaser harmless from and against any loss
or liability resulting from Seller's failure to pay when due
any tax, together with any interest, penalties, or additions to
the tax alleged to be due in connection with the sale of the
Property pursuant to (i) Article 31-B of the Tax Law of the
State of New York or any successor statute or statutes thereto,
(ii) Article 31 of the Tax Law of the State of New York or any
successor statute or statutes thereto, and (iii) Title 11,
Chapter 21 of the Administrative Code of the City of New York
or any successor statute or statutes thereto. Seller shall
defend any proceedings thereunder relating to the conveyance of
the Property to Purchaser at Seller's sole cost and expense,
and Purchaser shall reasonably cooperate with Seller in
connection therewith at no cost to Purchaser. Seller shall
also reimburse and indemnify Purchaser for all costs and
expenses incurred by Purchaser in defending or prosecuting any
such proceedings by reason of Seller's failure to do so with
reasonable diligence.
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7.4. Survival. The provisions of this
Article VII shall survive the Closing.
ARTICLE VIII
REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1. In addition to the representations,
warranties and covenants contained in other Articles of this
Agreement, Seller hereby makes the following representations,
warranties and covenants which are true as of the date hereof,
will be true at Closing and, except with respect to subsection
8.1.1, shall survive the Closing:
8.1.1. Seller has good, insurable and
marketable title to the Property, free and clear of
all liens and encumbrances except the Permitted
Encumbrances.
8.1.2. Except for the Lease, and any subleases
or occupancy agreements granted by the tenant under
the Lease, there are no leases or occupancy agreements
affecting the Property.
8.1.3. There are no service, maintenance,
supply or management agreements affecting the Land or
Building as of the date hereof entered into by Seller
or any predecessor-in-interest of Seller.
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8.1.4. Seller will have no employees engaged
in work at the Property following the Closing.
8.1.5. There shall be no taxes, assessments
(including assessments which may be paid in
installments), College Point Improvement Fund
Payments, payments to any Business Improvement
District or any other amounts whatsoever which are due
and payable or which are to become due and payable or
a lien, or both, on the Property with respect to any
period of time prior to the Closing Date, except for
such amounts that the tenant under the Lease is
obligated to pay pursuant to the terms of the Lease.
8.1.6. Where copies of any documents have been
delivered by Seller to Purchaser pursuant to this
Agreement, such copies:
(i) are exact copies of the originals of
said documents, as executed and delivered by all
of the parties thereto;
(ii) constitute, in each case, the entire
agreement between the parties thereto with
respect to the subject matter thereof, and the
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original instruments in the form delivered by
Seller to Purchaser are now in full force and
effect, are valid and enforceable in accordance
with their respective terms and no party thereto
is in default and no claim of default by any
party has been made or is now pending and there
does not now exist any default which, after
either the giving of notice or the passing of
time, or both, will or may constitute a default,
or would excuse performance by any party thereto;
and
(iii) have not been changed, modified or
amended except for amendments, if any,
specifically referred to therein, photocopies of
which have been delivered by Seller to Purchaser.
8.1.7. Seller has no knowledge of any pending
or threatened condemnation or similar proceeding
affecting the Property or any portion thereof, or
pending public improvements in or adjoining the
Property which will adversely affect the Property;
provided, however, that Seller shall notify Purchaser
of any such proceeding that it has knowledge of,
without regard to whether such proceeding might have
an adverse effect on the Property.
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8.1.8. Seller has no knowledge of any pending
or threatened legal action of any kind or character
whatsoever affecting Seller or the Property which will
adversely affect the Property upon or subsequent to
the Closing.
8.1.9. Each person executing and delivering
this Agreement and all documents to be executed and
delivered on behalf of Seller in regard to the
consummation of the transaction which is the subject
of this Agreement represents to Purchaser that he or
she has due and proper authority to execute and
deliver same. Seller has the full right, power and
authority to sell and convey the Property to Purchaser
as provided in this Agreement and to carry out its
obligations set forth in this Agreement. The
consummation by Seller of the transaction which is the
subject of this Agreement will not conflict with or
result in a breach of any of the terms of any
agreement or instrument to which Seller is a party or
by which Seller is bound or constitute a default
thereunder, and Seller has obtained any and all
required authorizations and approvals of the execution
and delivery of this Agreement, the transaction which
is the subject of this Agreement, and all documents
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referred to in this Agreement. No other party has any
right to purchase the Property, or any part thereof.
8.1.10. Intentionally Omitted
8.1.11. No representation or warranty by Seller
in this Agreement knowingly omits or knowingly will
omit to state a material fact necessary to make any
representation or warranty not misleading.
8.1.12. Seller is not a "foreign person" as
such term is defined in Section 1445(f)(3) of the
Internal Revenue Code of 1986, as amended (hereinafter
called the "Code"). In the event that Seller is a
"foreign person", or in the event that Seller fails or
refuses to deliver the FIRPTA Certificate, or in the
event that Purchaser receives notice from any
"transferor's agent" or "transferee's agent" (as such
terms are defined in Section 1445(d) of the Code), or
Purchaser has actual knowledge that, the FIRPTA
Certificate is false, Purchaser shall deduct and
withhold from the Purchase Price a tax equal to 10%
thereof, as required by Section 1445 of the Code. In
the event of any such withholding, the Closing
hereunder shall not be otherwise affected, Purchaser
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shall remit such amount to and file the required form
with the Internal Revenue Service, and Seller, in the
event of any claimed over-withholding, (i) shall be
limited solely to an action against the Internal
Revenue Service for a refund, and (ii) hereby waives
any right of action against Purchaser on account of
such withholding.
8.1.13. Seller has not done or suffered
anything whereby the Property has been transferred or
encumbered in any way whatsoever except for the
Permitted Encumbrances.
8.1.14. Intentionally Omitted
8.1.15. No air or development rights with
respect to the Property have been transferred or sold,
and no contract to sell such air or development rights
is outstanding, other than this Agreement.
8.1.16. Seller is not now the subject of any
existing, pending, threatened or contemplated
bankruptcy, insolvency or other debtor's relief
proceeding.
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ARTICLE IX
CLOSING ADJUSTMENTS
9.1. The following are to be adjusted, if
feasible, at the Closing, as of 11:59 p.m. of the day
immediately preceding the Closing Date (the "Adjustment
Date"). If the net effect of the adjustment of the following
is in Seller's favor, then Purchaser shall pay the net amount
thereof to Seller at the Closing. If the net effect of the
adjustment of the following is in Purchaser's favor, then
Purchaser shall be entitled to a credit against the Purchase
Price at the Closing.
9.1.1. The following are to be adjusted in
favor of Seller:
(a) any unpaid Rental (as that term is defined
in and computed in accordance with the provisions of
the Lease);
(b) the EDC Reimbursement Amount or the EDC
Amortized Reimbursement Amount, if any (as such terms
are defined in and computed in accordance with the
provisions of the Lease); and
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(c) any and all other amounts due and payable to
Seller by the tenant under the Lease through and
including the Adjustment Date pursuant to the
provisions of the Lease.
9.1.2. The following are to be adjusted in
favor of Purchaser:
(a) any amounts paid as Rental under the Lease
which are in excess of the aggregate amount of Rental
payable under the Lease for the period ending on the
Adjustment Date;
(b) the amount of any and all taxes, fees or
other charges whatsoever that Purchaser may be
required to pay, or which may become a lien on the
Property if not paid by Seller, with respect to the
consummation of the transactions contemplated by this
Agreement, without regard to whether such taxes, fees
or other charges may customarily or by law be payable
by a purchaser of property from a municipal or other
governmental entity; and
(c) any and all other amounts payable to the
tenant under the Lease pursuant to the provisions of
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Funding Agreements #1, #2 or #3 or any provision of
the Lease including, without limitation, any provision
of the Lease providing for an offset against the
Rental due and payable thereunder, it being expressly
understood and agreed by Seller and Purchaser that the
expiration or termination of the Lease shall not in
any way prejudice or diminish Purchaser's right to a
credit against the Purchase Price in the full amount
that the tenant under the Lease would have been
entitled to offset against Rental but for the
expiration or termination of the Lease.
9.2. The parties hereto shall endeavor to prepare
a schedule of adjustments no less than five (5) days prior to
the Closing.
9.3. The parties shall correct any errors in the
adjustments as soon after the Closing as amounts are finally
determined. The parties shall enter into the Post-Closing
Adjustment Letter at the Closing in the form of Exhibit D
annexed hereto.
ARTICLE X
COMMISSIONS
10.1. Seller warrants and represents to Purchaser
that Seller has had no dealings with any broker in connection
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with this transaction and agrees to indemnify and hold
Purchaser harmless from and against any loss or liability
resulting from any claims of any broker alleging any dealings
with Seller. Purchaser warrants and represents to Seller that
Purchaser has had no dealings with any broker in connection
with this transaction and agrees to indemnify and hold Seller
harmless from and against any loss or liability resulting from
any claims of any broker alleging any dealings with Purchaser.
The provisions of this Section shall survive the Closing.
ARTICLE XI
OPERATIONS PRIOR TO CLOSING
11.1. Seller covenants and agrees that between the
date hereof and the Closing Date, Seller shall:
11.1.1. Not enter into any leases or occupancy
agreements with respect to the Property.
11.1.2. Not create (or agree to create) any
exception to or covenant, restriction, easement or
other lien on or affecting the Property.
11.1.3. Not grant or transfer or permit the
grant or transfer of any interest in the Property
including any air and development rights.
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11.1.4. Promptly advise Purchaser of any
litigation or governmental proceeding to which Seller
becomes a party affecting the Property. It shall be a
condition precedent to Purchaser's obligation to
accept title, that there shall be no such litigation
or proceeding pending at Closing having a potential
adverse effect upon the Property or Seller's ability
to convey the Property to Purchaser.
ARTICLE XII
RISK OF LOSS
12.1. The risk of loss or damage to the Property
by fire or other casualty shall be borne by Purchaser. In the
event that damage, loss or destruction of the Property or any
part thereof, by fire or other casualty, occurs prior to the
Closing, Purchaser shall nonetheless be required to consummate
the purchase of the Property without any credit against the
Purchase Price.
12.2. If, prior to Closing, any governmental
authority or other entity having condemnation authority shall
institute an eminent domain proceeding or take any steps
preliminary thereto (including the giving of any direct or
indirect notice of intent to institute such proceedings) with
regard to the Land or Improvements, and the same is not
-27-
dismissed beyond appeal on or before ten (10) days prior to the
Closing Date set forth in this Agreement, Purchaser shall be
entitled to terminate this Agreement in which event, the
applicable provisions of Article 21 of the Lease shall govern.
ARTICLE XIII
CONDITIONS TO CLOSING
13.1. It shall be a condition to Purchaser's
obligation to close the transaction which is the subject of
this Agreement (subject to Purchaser's option, in its sole
discretion, to waive one or more of the following) that each of
Seller's (i) representations and warranties set forth in this
Agreement be true as of the Closing, and (ii) covenants set
forth in this Agreement be satisfied as of the Closing.
ARTICLE XIV
TERMINATION AND REMEDIES
14.1. In the event that any of Seller's
representations or warranties contained in this Agreement are
untrue or if Seller shall have failed to have performed any of
the covenants or agreements contained in this Agreement which
are to be performed by Seller, on or before the date set forth
in this Agreement for the performance thereof, or if any of the
conditions precedent to Purchaser's obligation to consummate
the transaction which is the subject of this Agreement shall
-28-
have failed to occur, Purchaser may, at its option, elect any
one or more of the following remedies:
(i) rescind this Agreement and terminate the
Lease;
(ii) rescind this Agreement and permit the
Lease to continue in full force and effect in
accordance with the applicable provisions of
Article 21 thereof;
(iii) rescind this Agreement and extend the
term of the Lease in accordance with the applicable
provisions of Article 21 thereof;
(iv) seek to enforce specific performance of
this Agreement and reimbursement of all of Purchaser's
expenses including, without limitation, reasonable
attorney's fees, in connection with any such action
for specific performance;
(v) extend the term of the Lease in
accordance with the applicable provisions of
Article 21 thereof, and seek specific performance of
this Agreement and reimbursement of all of Purchaser's
-29-
expenses including, without limitation, reasonable
attorney's fees, in connection with any such action
for specific performance; or
(vi) consummate the transaction provided for
herein in accordance with the applicable provisions of
Article 5 hereof.
It is expressly understood and agreed by Seller and Purchaser
that the failure by Purchaser to rescind or terminate this
Agreement for any reason pursuant to this Section shall in no
way waive, alter or modify any rights of Purchaser in regard to
the representations, warranties, covenants and agreements of
Seller set forth in this Agreement.
14.2. If the purchase and sale which is the
subject of this Agreement is not consummated because of
Purchaser's default, Seller's sole remedy shall be
reimbursement by Purchaser for Seller's actual costs and
expenses reasonably incurred in connection with the proposed
purchase (including, without limitation, legal costs, fees and
disbursements and expenses of deed preparation) whether
incurred out-of-pocket or in the form of staff time, Seller
hereby specifically waiving any and all rights which it may
have to any other damages or specific performance of
Purchaser's default under this Agreement.
-30-
ARTICLE XV
NOTICES
15.1. Except as otherwise provided in this
Agreement, any and all notices, elections, demands, requests
and responses thereto permitted or required to be given under
this Agreement shall be in writing, signed by the party giving
the same or by its attorneys, and shall be deemed to have been
properly given and shall be deemed effective upon being (i)
personally delivered, or (ii) delivered by an express overnight
delivery service with receipt for delivery, or (iii) deposited
in the United States mail, postage prepaid, certified with
return receipt requested, to the other party at the address of
such other party set forth below or at such other address
within the continental United States as such other party may
designate by notice specifically designated as a notice of
change of address and given in accordance herewith; provided,
however, that the time period in which a response to any such
notice, election, demand or request must be given shall
commence on the date of receipt thereof. Personal delivery to
a party or to any officer, partner, agent or employee of such
party at said address shall constitute receipt. Rejection or
other refusal to accept or inability to deliver because of
changed address of which no notice has been received shall also
constitute receipt. Any such notice, election, demand, request
or response shall be addressed as follows:
-31-
(i) To Seller:
The City of New York
c/o New York City Economic Development
Corporation
110 William Street
New York, New York 10038
Attention: Lease Administration
with a copy to be given
simultaneously to:
EDC General Counsel
New York City Economic Development
Corporation
110 William Street
New York, New York 10038
and to:
The New York City Law Department
100 Church Street
New York, New York 10007
Attention: Chief Economic Development
Division
(ii) To Purchaser:
The New York Times Company
229 West 43rd Street
New York, New York 10036
Attention: *
and to:
The New York Times Company
229 West 43rd Street
New York, New York 10036
Attention: General Counsel
* To be inserted by Purchaser prior to delivery of this
Agreement to Seller. Purchaser may also change the
addresses for notices and copies thereof prior to such
delivery.
-32-
with a copy to be given
simultaneously to:
Bachner, Tally, Polevoy & Misher
380 Madison Avenue
New York, New York 10017
Attention: Martin D. Polevoy, Esq.
ARTICLE XVI
INTENTIONALLY OMITTED
ARTICLE XVII
MISCELLANEOUS
17.1. This Agreement cannot be changed, modified,
discharged or terminated by any oral agreement or any other
agreement and there cannot be any waiver of the warranties,
representations and covenants expressly contained in this
Agreement unless the same is in writing and signed by the party
against whom enforcement of the change, modification, discharge
or termination is sought.
17.2. This Agreement and the Exhibits annexed
hereto contain the entire agreement between the parties with
respect to the subject matter hereof, and no promise,
representation, warranty or covenant not included in this
-33-
Agreement or any such Exhibits has been or is relied upon by
either party hereto.
17.3. The Article and Exhibit headings herein are
for convenience only, and are not to be used in determining the
meaning of this Agreement or any part hereof.
17.4. This Agreement and its interpretation and
enforcement shall be governed by the laws of the State of New
York.
17.5. This Agreement shall be binding on, and the
benefits hereof shall inure to, the successors and assigns of
the parties hereto.
17.6. All Exhibits which are annexed to this
Agreement are part of this Agreement and are incorporated
herein by reference.
17.7. The provisions of this Agreement are for the
sole benefit of the parties to this Agreement and their
successors and assigns and shall not give rise to any rights by
or on behalf of anyone other than such parties.
-34-
17.8. This Agreement shall be construed without
regard to any presumption or other rule requiring construction
against the party causing this Agreement to be drafted.
17.9. This Agreement may be executed in any number
of counterparts, each of which shall, when executed, be deemed
to be an original and all of which shall be deemed to be one
and the same instrument.
17.10. In the event that any litigation arises
under this Agreement, Purchaser shall be entitled to recover,
as a part of its judgment or settlement, reasonable attorneys'
fees incurred in litigation or settlement discussions to the
extent that such attorneys' fees are incurred after Seller has
failed to perform its obligations hereunder and Purchaser has
made a demand on Seller to cure such failure.
17.11. [Intentionally Omitted]
17.12. Seller will, whenever and as often as it
shall be reasonably requested so to do by Purchaser, and
Purchaser will, whenever and as often as it shall be reasonably
requested so to do by Seller, execute, acknowledge and deliver,
or cause to be executed, acknowledged and delivered, any and
all conveyances, assignments, correction instruments and all
-35-
other instruments and documents as may be reasonably necessary
in order to complete the transaction which is the subject of
this Agreement and to carry out the intent and purposes of this
Agreement. All such instruments and documents shall be
reasonably satisfactory to the respective attorneys for
Purchaser and Seller. The provisions of this Section shall
survive the Closing.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be signed as of the date first above written.
Seller:
By:
-------------------------------
Purchaser:
By:
-------------------------------
-36-
EXHIBIT A
LAND
ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, SITUATE, LYING
AND BEING IN THE BOROUGH AND COUNTY OF QUEENS, CITY AND STATE
OF NEW YORK, BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY SIDE OF WHITESTONE
EXPRESSWAY DISTANT 1750.00 FEET SOUTHERLY FROM THE CORNER
FORMED BY THE INTERSECTION OF THE SOUTHERLY SIDE OF 20TH AVENUE
AND THE WESTERLY SIDE OF WHITESTONE EXPRESSWAY;
THENCE SOUTHERLY ALONG THE WESTERLY SIDE OF WHITESTONE
EXPRESSWAY, 2,433.07 FEET TO A POINT OF CURVATURE;
THENCE ALONG THE ARC OF A CURVE HAVING A RADIUS OF 25.00 FEET
AND CONNECTING THE EASTERLY SIDE OF LINDEN PLACE WITH THE
WESTERLY SIDE OF WHITESTONE EXPRESSWAY, A DISTANCE OF 48.20
FEET;
THENCE NORTHERLY ALONG THE EASTERLY SIDE OF LINDEN PLACE,
395.44 FEET;
THENCE EASTERLY AT RIGHT ANGLES WITH THE EASTERLY SIDE OF
LINDEN PLACE 235.94 FEET;
THENCE NORTHERLY AT RIGHT ANGLES WITH THE PREVIOUS COURSE 87.58
FEET;
THENCE EASTERLY ALONG A COURSE FORMING AN INTERIOR ANGLE OF 93
DEGREES 05 MINUTES 30 SECONDS WITH THE PREVIOUS COURSE, 335.95
FEET;
THENCE NORTHERLY ALONG A COURSE FORMING AN INTERIOR ANGLE OF
264 DEGREES 30 MINUTES 52 SECONDS WITH THE PREVIOUS COURSE,
752.41 FEET;
THENCE NORTHERLY ALONG A COURSE FORMING AN INTERIOR ANGLE OF
129 DEGREES 24 MINUTES 22 SECONDS WITH THE PREVIOUS COURSE,
1118.19 FEET;
THENCE EASTERLY ALONG A COURSE FORMING AN INTERIOR ANGLE OF 94
DEGREES 50 MINUTES 44 SECONDS WITH THE PREVIOUS COURSE, 652.21
FEET TO THE POINT OR PLACE OF BEGINNING.
FOR INFORMATION ONLY:
BLOCK 4183 PART OF LOT 1
BLOCK 4242 PART OF LOT 1
BLOCK 4243 PART OF LOT 1
BLOCK 4280 PART OF LOT 1
BLOCK 4281 PART OF LOT 1
BLOCK 4282 LOT 1
BLOCK 4283 LOT 1
BLOCK 4284 LOT 1
BLOCK 4306 PART OF LOT 1 AND ALL OF LOT 44
BLOCK 4307 LOT 1 AND PART OF LOT 4
BLOCK 4308 LOTS 1 AND 36
BLOCK 4310 LOT 32
BLOCK 4336 LOT 35 AND PART OF LOT 50
BLOCK 4337 LOT 62 AND PART OF LOT 76
BLOCK 4339 LOT 46
PLUS DEMAPPED PORTIONS OF 28TH AVENUE, 25TH AVENUE, 138TH
STREET AND 139TH STREET AS IDENTIFIED ON THE TAX MAP OF THE
BOROUGH OF QUEENS, IN THE COUNTY OF QUEENS, CITY AND STATE OF
NEW YORK.
-2-
EXHIBIT B
ASSIGNMENT OF LEASE
KNOW ALL MEN BY THESE PRESENTS that
, having an office
(the "Assignor"), in consideration of Ten ($10.00) Dollars and
other good and valuable consideration in hand paid, by
, having an office at
(the "Assignee"), the
receipt and sufficiency whereof is hereby acknowledged, hereby
assigns unto Assignee all of Assignor's right, title and
interest in and to that certain Agreement of Lease dated as of
, 1993 between The City of New York and New York City
Economic Development Corporation with respect to Block ,
Lot , on the Tax Map of the Borough of Queens, County of
Queens, City and State of New York (as amended, the "Lease").
TO HAVE AND TO HOLD the same unto Assignee, its
successors and assigns, from and after the date hereof, subject
to the terms, covenants, conditions and provisions contained in
the Lease.
Assignee hereby assumes the performance of all of the
terms, covenants and conditions of the Lease on Assignor's part
to be performed thereunder from and after the date hereof.
Assignor hereby agrees to indemnify and hold Assignee
harmless from and against any and all loss, cost and expense
(including reasonable attorneys' fees), damage and liability
incurred by Assignee as a result of claims brought against
Assignee as Assignor's successor in interest to the Lease
relating to causes of action accruing prior to the date hereof
arising from a breach of the Lease and the obligations of the
lessor thereunder.
IN WITNESS WHEREOF, the parties hereto have executed
this instrument as of the day of .
, Assignor
By:
-------------------------------------------
, Assignee
By:
-------------------------------------------
EXHIBIT C
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS that
having an office at
("Seller") for and in consideration of the sum of Ten ($10.00)
Dollars and other good and valuable consideration to it in hand
paid, at or before the ensealing and delivery of these presents
by having an office at
("Purchaser"), the receipt
and sufficiency whereof is hereby acknowledged, has transferred
and conveyed and by these presents does release, transfer and
convey unto the Purchaser, its successors and assigns, all of
Seller's right, title, and interest in and to all fixtures,
machinery and equipment to the extent same constitute personal
property, all raw materials, work and materials in process,
stock in trade, inventory and other equipment and other
tangible personal property, and all other tangible personal
property owned by Seller, attached or appurtenant to, or used
in connection with the occupancy and operation of those certain
premises known as Block , Lot , on the Tax Map of the
Borough of Queens, County of Queens, City and State of New York
(the "Premises"). All of the foregoing is herein collectively
called the "Personal Property."
TO HAVE AND TO HOLD, the same unto Purchaser, its
successors and assigns, forever, Seller does hereby bind itself
and its successors to forever warrant and defend the title to
the Personal Property unto Purchaser, its successors and
assigns, against every person whomsoever lawfully claiming, or
to claim the same, or any part thereof.
This transfer is made as part of the transfer of the
Premises to Purchaser and both parties agree and acknowledge
that no part of the consideration is allocated to the Personal
Property.
IN WITNESS WHEREOF, Seller has executed this
instrument as of the day of .
-------------------------------------
EXHIBIT D
POST-CLOSING ADJUSTMENT LETTER
[Date]
[Purchaser]
Re: Block , Lot , on the Tax Map
of the Borough of Queens, County
of Queens, City and State of
New York (the "Premises")
Gentlemen:
In connection with the closing adjustments made pursuant to
the transfer of title of the Premises by the undersigned to
you, a copy of which closing adjustments is annexed hereto, it
is hereby agreed that if any arithmetic calculations shall
prove to be erroneous, or any adjustment shall be omitted, same
shall be adjusted between you and the undersigned after the
closing. Any such adjustment shall be paid promptly after same
is ascertained. The obligation to correct any erroneous
adjustment or to make any additional adjustment in accordance
with the above shall survive the closing.
Very truly yours,
[Seller]
AGREED TO: By:
-----------------------
[Purchaser]
By:
-----------------------
EXHIBIT E
Section 1445 of the Internal Revenue Code provides
that a transferee of a U.S. real property interest must
withhold tax if the transferor is a foreign person. To inform
the transferee that withholding of tax is not required upon the
disposition of a U.S. real property interest by [name of
transferor], the undersigned hereby certifies the following on
behalf of [name of transferor]:
1. [Name of 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);
2. [Name of transferor]'s U.S. employer
identification number is , and
3. [Name of transferor]'s office address is
.
[Name of 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 [name
of transferor].
Dated:
- ----------------------------------
[Title]
EXHIBIT "F"
PERMITTED ENCUMBRANCES
1. Such state of facts as an accurate survey may show
provided the same does not render title unmarketable
or uninsurable without excess premium;
2. Zoning regulations affecting said premises;
3. Any liens, encumbrances or charges made, created or
suffered after December 15, 1993 by reason other than
the acts, negligence, misconduct or failure to act of
Grantor or New York City Economic Development
Corporation or any successors thereto.
4. The Second Amended Urban Renewal Plan for the College
Point II Industrial Development Project, dated
February 1989, with (a) all amendments and
modifications thereto from time to time up to and
including December 15, 1993 (but not subsequent to
December 15, 1993, except as set forth in clause (b)
of this sentence), and (b) any amendments or
modifications thereto after December 15, 1993 with
respect only to landscaping, compliance with which
would not require Grantee to incur a material cost.
5. The 25 foot wide permanent slope easement acquired by
an order dated January 2, 1962 vesting title in The
City of New York pursuant to condemnation proceedings
entitled, "In The Matter of An Application By The City
of New York" relative to acquiring title to a
permanent and perpetual slope easement in connection
with the construction of the Whitestone Expressway, as
shown on The City of New York's Alteration Map Number
4219, dated July 18, 1961, adopted September 22, 1961,
which easement affects a portion of Blocks 4336, 4337,
4339 and 4308 of the Tax Maps of the City of New York,
as shown on Survey No. 67832 made by Robert A. Haynes,
dated August 28, 1990, and last redated December 14,
1993.
EXHIBIT G
---------
DEED
----
THIS INDENTURE, dated the day of , in the year
between THE CITY OF NEW YORK, a municipal
corporation with an office at City Hall, New York, New York
10007, hereinafter designated as the Grantor, and THE NEW YORK
TIMES COMPANY, a New York State corporation, having its principal
office at 229 West 43rd Street, New York, New York 10036,
hereinafter designated as the Grantee.
WHEREAS, The Mayor of the City of New York, on the 13th day
of January, 1993, as clarified on December 15, 1993, authorized
the sale of the premises hereinafter described.
WHEREAS, the Queens Borough Board by Resolution adopted on
November 16, 1992, as amended on December 14, 1993, approved the
transfer of title therein.
NOW, THEREFORE, WITNESSETH: That the Grantor, in
consideration of the sum of TEN AND 00/100 ($10.00) DOLLARS,
lawful money of the United States, and other valuable
consideration, paid by the Grantee, does hereby grant and release
unto Grantee, its successors and assigns forever:
ALL that certain lot, piece or parcel of land, situate, lying
and being in the Borough of Queens, City and State of New York,
being known and designated as Block 4282, Lot 100*, on the Tax
Map for the Borough of Queens, as more particularly described in
Exhibit A annexed hereto and made a part hereof;
TOGETHER with all buildings and improvements thereon
--------------------
*This block and lot number has been tentatively assigned to
the premises and should be confirmed at the time of the
conveyance.
1
erected;
TOGETHER with all right, title and interest, if any, of the
Grantor in and to any streets and roads abutting the above
described premises to the center lines thereof;
TOGETHER with the appurtenances and all the estate and
rights of the Grantor in and to said premises;
RESERVING UNTO Grantor a permanent easement, approximately
30 feet wide, running along the portion of the described premises
fronting on the Whitestone Expressway Service Road, more fully
described in Exhibit C attached hereto and made a part hereof.
TO HAVE AND TO HOLD said premises herein granted unto the
Grantee, the successors and assigns of the Grantee forever.
Subject to:
1. The trust fund provisions of Section 13 of the Lien Law;
and
2. Those matters affecting title set forth in Exhibit B
attached hereto.
In the event of acquisition by The City of New York (the
"City") by condemnation or otherwise of any part or portion of
the above described premises lying within the bed of any street,
avenue, expressway, parkway, park, public place or catchbasin, as
shown on the present City Map, the Grantee and the heirs or
successors and assigns of the Grantee shall only be entitled as
compensation for such acquisition by the City to the amount of
One Dollar ($1.00) and shall not be entitled to compensation for
any buildings or structures erected thereon which may lie within
2
the bed or lines of the street, avenue, parkway, expressway,
park, public place or catchbasin so laid out and acquired. This
covenant shall run with the land and shall continue until the
City Map is amended or changed to eliminate from within the bed
or lines of any street, avenue, parkway, expressway, park, public
place or catchbasin, any such part or portion of the premises and
no longer.
Grantee covenants, on behalf of itself, its successors and
assigns, to use the premises in strict accordance with The Second
Amended Urban Renewal Plan for the College Point II Industrial
Development Project, dated February 1989 (the "Plan"), with (a)
all amendments and modifications thereto from time to time up to
and including December 15, 1993 (but not subsequent to December
15, 1993, except as set forth in clause (b) of this sentence),
and (b) any amendments or modifications thereto after December
15, 1993, with respect only to landscaping, compliance with which
would not require Grantee to incur a material cost. This
covenant shall survive the delivery of this deed and shall run
with the land and continue in effect until said Plan has expired
or is no longer applicable to the premises.
Commencing on the January 1, April 1, July 1 or October 1
first occurring after the date of this deed and thereafter on
each January 1, April 1, July 1, and October 1, Grantee, its
successors or assigns, shall pay to Grantor or its successor or
assign or designee, a sum equal to one-eighth of one percent
(.125%) of the assessed value of the land, and all improvements
3
thereon, as such assessed value is determined by the City's
Department of Finance for purposes of real property taxation.
Such sum, together with other similar sums paid by owners or
occupants of similarly burdened property within College Point
Industrial Park, shall be held by New York City Economic
Development Corporation ("EDC"), or its successor or assign or
designee, in a separate fund, known as the "College Point
Improvement Fund" (the "Fund"), and shall be used by EDC solely
for construction, maintenance and improvement of (1) roads,
sewers, drainage systems, buffer strips, utilities and sidewalks
within College Point Industrial Park, and (2) other facilities of
general benefit to College Point Industrial Park or portions
thereof, as determined by EDC or its successor or assign or
designee. The obligation to make such payments shall be a
covenant running with the land, enforceable by EDC, or its
successor or assign or designee, and by other owners of property
within College Point Industrial Park burdened by a similar
obligation, and any such payment, once due, shall be a lien upon
the premises. This obligation is for the benefit of the
properties comprising College Point Industrial Park. If there
shall be established within College Point Industrial Park, or a
substantial portion thereof, a Business Improvement District
("BID") pursuant to Article 2-B of the General City Law or any
successor statute thereto, then, if the premises are included
within such BID and charges or assessments with regard to the BID
must be or are paid in connection with the premises and other
4
properties in such BID burdened by an obligation similar to that
set forth herein (the "Burdened Properties"), in an amount in the
aggregate less than, equal to or greater than the amount that
would be payable to EDC or its successor or assign or designee
for the Fund in connection with the premises and Burdened
Properties, then (i) Grantee shall pay such charges or
assessments and (ii) Grantee shall be released and discharged
from any obligation to make any further payments to the Fund with
respect to any period from and after the date to which Grantee's
first payment to such BID is applicable, and EDC shall promptly
refund to Grantee any portion of any payments to the Fund made by
Grantee which were applicable to any period beyond such date. If
the funds received by the BID in connection with the premises and
the Burdened Properties, in EDC's or its successor's or assign's
or designee's reasonable determination, are devoted to similar
purposes as those to which the Fund is devoted, then the district
management association formed in connection with such BID shall
succeed to EDC's or its successor's or assign's or designee's
functions in connection with the Fund with regard to the area in
such BID, and EDC or its successor or assign or designee shall
transfer moneys within the Fund on hand and attributable to the
properties included within such BID to such district management
association.
Grantee covenants that it will not restrict the use of the
premises upon the basis of race, creed, color, sex or national
origin. Grantee covenants that no covenant, lease, agreement,
5
conveyance or other instrument shall be effected or executed by
Grantee or any of its heirs, successors or assigns, whereby the
premises are restricted upon basis of race, creed, color, sex or
national origin.
The covenants of the Grantee hereunder shall run with the
land and bind Grantee's successors and assigns.
Grantor covenants that Grantor has not done or suffered
anything whereby the premises have been encumbered in any way
whatever, except as aforesaid.
This Indenture is an absolute conveyance of title in effect
as well as form and is not intended as a mortgage, deed of trust,
trust conveyance or security of any kind.
IN WITNESS WHEREOF, the Grantor and the Grantee have caused
their corporate seals to be hereunto affixed and these presents
to be signed by their duly authorized officers, the day and year
first above written.
THE CITY OF NEW YORK
ATTEST:
By:
--------------------- -------------------------
CITY CLERK
THE NEW YORK TIMES COMPANY
APPROVED AS TO FORM:
By:
--------------------------- --------------------------
Acting Corporation Counsel
c-cpip.dee
6
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of , 199 , before me personally
came , to me known, and known to me to be the Deputy
Mayor/Deputy Commissioner, Department of General Services, Division
of Real Property of the City of New York, and the same person who
executed the foregoing instrument; and she/he acknowledged that
she/he executed the foregoing instrument on behalf of the City
of New York as said Deputy Mayor/Deputy Commissioner, pursuant
to the authority vested in her/him.
---------------------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of , 199 , before me personally
came , with whom I am acquainted and known to me to
be the City Clerk of the City of New York, who being by me duly
sworn, deposed and said: that he resides at ,
, ; that he is the City Clerk of the
City of New York, the municipal corporation described in and which
executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed as provided by law; and
that he signed his name thereto as City Clerk by like authority.
-------------------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of , 199 , before me personally
came , to me known, who being by me duly sworn, did
depose and say that he resides at
; that he is the of The
New York Times Company, the corporation described in and which
executed the foregoing instrument; that he knows the seal of
said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his
name thereto by such authority.
---------------------------------------
EXHIBIT A
PREMISES
--------
ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, SITUATE, LYING
AND BEING IN THE BOROUGH AND COUNTY OF QUEENS, CITY AND STATE
OF NEW YORK, BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY SIDE OF WHITESTONE
EXPRESSWAY DISTANT 1750.00 FEET SOUTHERLY FROM THE CORNER
FORMED BY THE INTERSECTION OF THE SOUTHERLY SIDE OF 20TH AVENUE
AND THE WESTERLY SIDE OF WHITESTONE EXPRESSWAY;
THENCE SOUTHERLY ALONG THE WESTERLY SIDE OF WHITESTONE
EXPRESSWAY, 2,433.07 FEET TO A POINT OF CURVATURE;
THENCE ALONG THE ARC OF A CURVE HAVING A RADIUS OF 25.00 FEET
AND CONNECTING THE EASTERLY SIDE OF LINDEN PLACE WITH THE
WESTERLY SIDE OF WHITESTONE EXPRESSWAY, A DISTANCE OF 48.20
FEET;
THENCE NORTHERLY ALONG THE EASTERLY SIDE OF LINDEN PLACE,
395.44 FEET;
THENCE EASTERLY AT RIGHT ANGLES WITH THE EASTERLY SIDE OF
LINDEN PLACE 235.94 FEET;
THENCE NORTHERLY AT RIGHT ANGLES WITH THE PREVIOUS COURSE 87.58
FEET;
THENCE EASTERLY ALONG A COURSE FORMING AN INTERIOR ANGLE OF 93
DEGREES 05 MINUTES 30 SECONDS WITH THE PREVIOUS COURSE, 335.95
FEET;
THENCE NORTHERLY ALONG A COURSE FORMING AN INTERIOR ANGLE OF
264 DEGREES 30 MINUTES 52 SECONDS WITH THE PREVIOUS COURSE,
752.41 FEET;
THENCE NORTHERLY ALONG A COURSE FORMING AN INTERIOR ANGLE OF
129 DEGREES 24 MINUTES 22 SECONDS WITH THE PREVIOUS COURSE,
1118.19 FEET;
THENCE EASTERLY ALONG A COURSE FORMING AN INTERIOR ANGLE OF 94
DEGREES 50 MINUTES 44 SECONDS WITH THE PREVIOUS COURSE, 652.21
FEET TO THE POINT OR PLACE OF BEGINNING.
FOR INFORMATION ONLY:
BLOCK 4183 PART OF LOT 1
BLOCK 4242 PART OF LOT 1
BLOCK 4243 PART OF LOT 1
BLOCK 4280 PART OF LOT 1
BLOCK 4281 PART OF LOT 1
BLOCK 4282 LOT 1
BLOCK 4283 LOT 1
BLOCK 4284 LOT 1
BLOCK 4306 PART OF LOT 1 AND ALL OF LOT 44
BLOCK 4307 LOT 1 AND PART OF LOT 4
BLOCK 4308 LOTS 1 AND 36
BLOCK 4310 LOT 32
BLOCK 4336 LOT 35 AND PART OF LOT 50
BLOCK 4337 LOT 62 AND PART OF LOT 76
BLOCK 4339 LOT 46
PLUS DEMAPPED PORTIONS OF 28TH AVENUE, 25TH AVENUE, 138TH
STREET AND 139TH STREET AS IDENTIFIED ON THE TAX MAP OF THE
BOROUGH OF QUEENS, IN THE COUNTY OF QUEENS, CITY AND STATE OF
NEW YORK.
-2-
EXHIBIT B
Permitted Title Exceptions
--------------------------
1. Such state of facts as an accurate survey may show
provided the same does not render title unmarketable
or uninsurable without excess premium;
2. Zoning regulations affecting said premises;
3. Any liens, encumbrances or charges made, created or
suffered after December 15, 1993 by reason other than
the acts, negligence, misconduct or failure to act of
Grantor or New York City Economic Development
Corporation or any successors thereto.
4. The Second Amended Urban Renewal Plan for the College
Point II Industrial Development Project, dated
February 1989, together with (a) all amendments and
modifications thereto from time to time up to and
including December 15, 1993 (but not subsequent to
December 15, 1993, except as set forth in clause (b)
of this sentence), and (b) any amendments or
modifications thereto after December 15, 1993 with
respect only to landscaping, compliance with which
would not require Grantee to incur a material cost.
5. The 25 foot wide permanent slope easement acquired by
an order dated January 2, 1962 vesting title in The
City of New York pursuant to condemnation proceedings
entitled, "In The Matter of An Application By The City
of New York" relative to acquiring title to a
permanent and perpetual slope easement in connection
with the construction of the Whitestone Expressway, as
shown on The City of New York's Alteration Map Number
4219, dated July 18, 1961, adopted September 22, 1961,
which easement affects a portion of Blocks 4336, 4337,
4339 and 4308 of the Tax Maps of the City of New York,
as shown on Survey No. 67832 made by Robert A. Haynes,
dated August 28, 1990, and last redated December 14,
1993.
EXHIBIT C
---------
Proposed Sanitary Sewer Easement
--------------------------------
Legal Description
-----------------
Beginning at a point on the westerly side of Whitestone
Expressway distant 1750.00 feet southerly from the corner
formed by the intersection of the westerly side of Whitestone
Expressway with the southerly side of 20th Avenue;
running thence southerly along the westerly side of Whitestone
Expressway 2433.07 feet to the northerly end of a curve;
running thence along said curve, bearing to the right and
having a radius of 25.00 feet a distance of 44.29 feet;
running thence northerly along a line parallel with the
westerly side of Whitestone Expressway 89.44 feet;
running thence westerly, at right angles with the last
described course, 10.00 feet;
running thence northerly, at right angles to the last described
course, 43.49 feet to a point of curve;
running thence still northerly along the arc of a curve bearing
to the left, having a radius of 3428.00 feet a distance of
16.51 feet;
running thence easterly along a line radial with the last
described course a distance of 10.00 feet;
running thence northerly along the arc of a curve bearing to
the left and having a radius of 3438.00 feet a distance of
1706.27 feet to a point of tangency;
running thence still northerly and parallel with the westerly
side of Whitestone Expressway 590.62 feet;
running thence easterly along a line forming an exterior angle
of 97 degrees, 18 minutes, 41 seconds with the last described
course, 30.25 feet to the westerly side of Whitestone
Expressway at the point or place of beginning.
Exhibit M-1 to Lease
As a result of an Abandonment as described in Section 2.4(c)(i-iv) of Funding Agreement #1.
Assumptions
-----------
Funding Amount (per press)*: Repayment Assumptions:
---------------------------- ----------------------
Phase One (4 presses) $3,000,000 Term of Lease 25
Phase Two (5 presses) $2,250,000 Lesser of: 9.00%
Phase Three (6 presses) $2,250,000 or City's borrowing cost(25 yr bonds) 9.00%
Phase Four (7 presses) $3,750,000 Interest Calculation: Annual
Phase Five (8 presses) $3,750,000
----------
Total $15,000,000
Examples
--------
Example #1:
-----------
NYT commences Phases One/Two and Three in Year 3, and does not diligently
pursue completion and Abandonment of the Project occurs pursuant to all
of the terms and conditions of Funding Agreement #1.
Phases One/Two/Three Grant: $7,500,000
Example #2:
-----------
NYT commences and substantially completes Phase One Construction in Year 1
and receives capital grant of $3 million. NYT commences Phases Two and Three
Construction in Year 3 and receives capital grant of $4.5 million. In Year 6,
either NYT does not equip the facility or relocates substantially all
employees to Stamford and Abandonment of the Project occurs pursuant to all
of the terms and conditions of Funding Agreement #1.
Phase One Grant: $3,000,000 Phase Two/Three Grant: $4,500,000
ILLUSTRATIVE REIMBURSEMENT SCHEDULES
Example #1 Example #2
---------- ----------
Year Project Status Principal I Year Project Status Principal I Principal II
---- -------------- ----------- ---- -------------- ----------- ------------
End Year 1 Vacant 0 End Year 1 Const/Disbursmnt 3,000,000
2 Vacant 0 2 Const 3,000,000
3 Const/Disbursmnt 7,500,000 3 Const/Disbursmnt 3,000,000 4,500,000
4 Const 7,500,000 4 Construction 3,000,000 4,500,000
5 Const Ceases 7,500,000 5 Construction 3,000,000 4,500,000
6 Const Cease/Abdmnt 7,500,000 6 Relocation/Abdmnt 3,000,000 4,500,000
7 7
8 8
9 9
10 10
11 11
12 12
13 13
14 14
15 15
16 16
17 17
18 18
19 19
20 20
21 21
22 22
23 23
24 24
25 25
Reimbursement Amount**:
-----------------------
Example #1
----------
Phase One/Two/Three Grant ($7.5 million) + (7.5 X 9% X 4 Yrs) = $10,200,000
Example #2
----------
Phase One Grant ($3 million) + (3.0 X 9% X 6 Yrs)
+ Phase Two/Three Grant ($4.5 million) + ($4.5 X 9% X 4 yrs) = $10,740,000
Notes:
------
* Assumes full building size. Grant will be reduced in accordance with
Section 2.2(c) of Funding Agreement #1 if building size is reduced.
** Assumes repayment to EDC in one payment; interest for multi-year
repayment not included.
(nytpay4l)
Exhibit M-2 to Lease
As a result of an Abandonment as described in Section 2.4(c)(v) of Funding Agreement #1.
Assumptions
Funding Amount (per press)*: Repayment Assumptions:
Phase One (4 presses) $3,000,000 Term of Lease 25
Phase Two (5 presses) $2,250,000 # Yrs before Abandonment: 5
Phase Three (6 presses) $2,250,000 Lesser of: 9.00%
Phase Four (7 presses) $3,750,000 or City's borrowing cost(25 yr bonds) 9.00%
Phase Five (8 presses) $3,750,000 Interest Calculation: Annual
Total $15,000,000
Examples:
Example #1 :
NYT commences Phase One Construction in Year 1 and receives capital grant
of $3 million. NYT commences Phases Two and Three Construction in Year 10
and receives capital grant of $4.5 million. NYT ceases operation in Year 14
and does not resume within 5 years and an Abandonment of the Project occurs
pursuant to all the terms and conditions of Funding Agreement #1.
Phase One Grant: $3,000,000 Phase Two/Three Grant: $4,500,000
Amortization Period: 25 Years Amortization Period: 15 Years
Amount Amortized Annually: 120,000 Amount Amortized Annually: 300,000
Example #2 :
NYT commences Phase One, Two and Three Construction in Year 1 and receives
capital grant of $7.5 million. NYT operates for 5 years and ceases operation
for 4 years before commencing construction of Phases Four/Five in Year 13.
NYT commences operation but ceases operation in Year 19 and does not resume
within 5 years and an Abandonment of the Project occurs pursuant
to all the terms and conditions of Funding Agreement #1.
Phase One Grant: $7,500,000 Phase Four/Five Grant: $7,500,000
Amortization Period: 25 Years Amortization Period: 13 Years
Amount Amortized Annually: 300,000 Amount Amortized Annually: 576,923
ILLUSTRATIVE AMORTIZATION REIMBURSEMENT SCHEDULES
Example #1 Example #2
- ---------- ----------
Year Project Status Principal I Principal II Year Project Status Principal I Principal II
---- -------------- ----------- ------------ ---- -------------- ----------- ------------
End Year 1 Const/Disbursmnt 3,000,000 End Year 1 Const/Disbursmnt 7,500,000
2 Const 2,880,000 2 Const 7,200,000
3 Const 2,760,000 3 Const 6,900,000
4 Operation 2,640,000 4 Operation 6,600,000
5 Operation 2,520,000 5 Operation 6,300,000
6 Operation 2,400,000 6 Operation 6,000,000
7 Operation 2,280,000 7 Operation 5,700,000
8 Operation 2,160,000 8 Operation 5,400,000
9 Operation 2,040,000 9 Cease Op-Yr 1 5,100,000
10 Operation/Cont 1,920,000 4,500,000 10 Cease Op-Yr 2 5,100,000
11 Operation/Cont 1,800,000 4,200,000 11 Cease Op-Yr 3 5,100,000
12 Operation 1,680,000 3,900,000 12 Cease Op-Yr 4 5,100,000
13 Operation 1,560,000 3,600,000 13 Const/Operation 4,800,000 7,500,000
14 Cease Op-Yr 1 1,440,000 3,300,000 14 Operation 4,500,000 6,923,077
15 Cease Op-Yr 2 1,440,000 3,300,000 15 Operation 4,200,000 6,346,154
16 Cease Op-Yr 3 1,440,000 3,300,000 16 Operation 3,900,000 5,769,231
17 Cease Op-Yr 4 1,440,000 3,300,000 17 Operation 3,600,000 5,192,308
18 Abndnmnt-Yr 5 1,440,000 3,300,000 18 Operation 3,300,000 4,615,385
19 19 Cease Op-Yr 1 3,000,000 4,038,462
20 20 Cease Op-Yr 2 3,000,000 4,038,462
21 21 Cease Op-Yr 3 3,000,000 4,038,462
22 22 Cease Op-Yr 4 3,000,000 4,038,462
23 23 Abndnmnt-Yr 5 3,000,000 4,038,462
24 24
25 25
Reimbursement Amount**:
- -----------------------
Example #1
----------
Amortized Reimbursement Amount = Phase One: $1,440,000+(($1,440,000 X 9%) X 18 Yrs) = $3,772,800
+ Phase Two/Three: $3,300,000 +(($3,300,000 X 9%) X 9 Yrs) = $5,973,000
----------
TOTAL = $9,745,800
Example #2
----------
Amortized Reimbursement Amount=Phase One/Two/Three:$3,000,000+($3,000,000 X 9%)X23 Yrs= $9,210,000
+ Phase Four/Five: $4,038,462+(($4,038,462 X 9%)X 11 Yrs) = $8,036,538
----------
TOTAL = $17,246,538
Notes:
------
* Assumes full building or footprint size. Grant will be reduced in
accordance with Section 2.2(c) of Funding Agreement #1 if building or
footprint size, as the case may be, is reduced.
** Assumes repayment to EDC in one payment; no interest for multi-year
repayment included.
(nytpay3L)
ASSIGNMENT AND
ASSUMPTION OF LEASE
WITH CONSENT
NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION,
as Assignor,
to
THE NEW YORK TIMES COMPANY,
as Assignee
Affecting: Block 4183, p/o Lot 1,
Block 4242, p/o Lot 1,
Block 4243, p/o Lot 1
Block 4280. p/o Lot 1
Block 4281, p/o Lot 1,
Block 4282, Lot 1,
Block 4283, Lot 1,
Block 4284, Lot 1,
Block 4306, Lot 44 and p/o Lot 1
Block 4307, Lot 1 and p/o Lot 4
Block 4308, Lot 1 and Lot 36
Block 4310, Lot 32
Block 4336, Lot 35 and p/o Lot 50
Block 4337, Lot 62 and p/o Lot 76
Block 4339, Lot 46
and demapped portions of 25th Avenue, 28th Avenue,
138th Street and 139th Street
Borough of Queens, New York
Assigned Tentative Block 4282, Lot 100 for
future identification
Record and Return to:
Frieda Dweck
New York City Economic
Development Corporation
110 William Street
New York, New York 10038
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("this Agreement")
made as of December 15, 1993, between NEW YORK CITY ECONOMIC
DEVELOPMENT CORPORATION ("Assignor"), a local development
corporation organized pursuant to Section 1411 of the
Not-for-Profit Corporation Law of the State of New York, having
an office at 110 William Street, New York, New York 10038, and
THE NEW YORK TIMES COMPANY ("Assignee"), a corporation organized
under the laws of the State of New York, having an address at 229
West 43rd Street, New York, N.Y. 10036.
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, The City of New York ("Landlord"), as landlord, and
Assignor, as tenant, have, as of the date hereof, entered into a
lease (the "Lease") under which Landlord demised and leased to
Assignor, and Assignor hired and let from Landlord, certain
premises identified as Block 4183, p/o Lot 1, Block 4242, p/o Lot
1, Block 4243, p/o Lot 1, Block 4280, p/o Lot 1, Block 4281, p/o
Lot 1, Block 4282, Lot 1, Block 4283, Lot 1, Block 4284, Lot 1,
Block 4306, Lot 44 and p/o Lot 1, Block 4307, Lot 1 and p/o Lot
4, Block 4308, Lot 1 and Lot 36, Block 4310, Lot 32, Block 4336,
Lot 35 and p/o Lot 50, Block 4337, Lot 62 and p/o Lot 76, Block
4339, Lot 46 and demapped portions of 25th Avenue, 28th Avenue,
138th Street and 139th Street, on the Tax Map of the Borough of
Queens, and assigned new tentative tax block and lot numbers
Block 4282, Lot 100 for future identification,which premises are
more particularly described in Attachment A hereto; and
WHEREAS, a memorandum of the Lease is to be recorded
simultaneously with the recording of this Agreement, in the
Office of the City Register of Queens County, New York; and
WHEREAS, Assignor desires to assign, and Assignee desires to
acquire, all of Assignor's right, title and interest in and to
the Lease as contemplated thereby;
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained, the parties hereto, intending to be
legally bound, covenant and agree as follows:
1. Assignor assigns, transfers and sets over to
Assignee from and after the date hereof, all of Assignor's right,
title and interest in and to the Lease, to have and to hold for
all the rest, residue and remainder of the term of the Lease.
2. Assignor represents that: (i) there is no existing
default under the Lease by Assignor; (ii) Assignor is the sole
tenant under the Lease; (iii) the Lease is in full force and
effect; (iv) all rent and other charges reserved in, or to be
paid by the tenant under the Lease have been paid to the extent
the same were payable as of the date hereof; (v) the Lease has
not been assigned or modified or amended in any respect
whatsoever; (vi) Assignor has full and lawful authority to assign
the Lease; and (vii) the Lease embodies the entire agreement and
understanding between the parties thereto with respect to the
2
premises demised thereunder.
3. Assignor agrees, at its sole cost, to do, execute,
acknowledge and deliver or to cause to be done, executed
acknowledged and delivered, all such acts and instruments as may
from time to time be reasonably required by Assignee or Landlord
to further assure and effectuate the assignment and transfer to
Assignee of the interest of Assignor hereby assigned and
transferred, or intended to be hereby assigned and transferred.
4. Assignee represents and warrants that it is a
corporation organized under the laws of the State of New York.
5. Assignee assumes the obligations of the tenant
under the Lease from and after the date hereof and Assignee
agrees to perform and observe all of the covenants and conditions
therein contained on Assignor's part to be performed and
observed, and Assignee makes all of the representations and
warranties binding upon the tenant under the Lease, with the same
force and effect as if Assignee had executed the Lease originally
as tenant.
6. Nothing contained herein shall be construed to
modify, waive, impair or affect any of the covenants, agreements,
terms, provisions or conditions contained in the Lease.
7. Assignee shall cause this instrument and a
memorandum of the Lease to be recorded immediately at Assignee's
expense in the Office of the City Register, Queens County, New
York and also shall cause a copy of this instrument and such
memorandum of the Lease, as recorded, to be transmitted to the
General Counsel of Assignor.
8. This Agreement may not be changed, modified,
discharged or terminated orally or in any other manner except by
an agreement in writing signed by the parties hereto or their
respective successors and permitted assigns.
9. All representations, warranties, grants,
covenants, terms and provisions of this Agreement shall apply to,
bind and inure to the benefit of the respective successors and,
to the extent permitted under the Lease, the respective assigns,
of Assignor, Assignee and Landlord.
10. Landlord hereby consents to the foregoing
assignment of the Lease by Assignor to Assignee.
3
11. This Agreement is subject to the trust fund
provisions of Section 13 of the Lien Law.
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement as of the day and year first above
written.
NEW YORK CITY ECONOMIC
DEVELOPMENT CORPORATION
By: /s/ Carl Weisbrod
-------------------------------
Carl Weisbrod, President
THE NEW YORK TIMES COMPANY
By: /s/ Katharine P. Darrow
-------------------------------
Name: Katharine P. Darrow
Title: Senior Vice President
THE CITY, BY SIGNING IN THE PLACE
PROVIDED BELOW, CONSENTS TO THIS
ASSIGNMENT, AS SET FORTH IN
PARAGRAPH 10 HEREOF:
THE CITY OF NEW YORK ATTEST: [SEAL]
By: /s/ Barry F. Sullivan /s/
------------------------------ -------------------------
City Clerk
APPROVED AS TO FORM:
By: /s/
------------------------------
Acting Corporation Counsel
4
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 17th day of December 1993, before me personally came
Carl Weisbrod, who being by me duly sworn, did depose and say
that he resides at 110 William Street, New York, NY 10038,
that he is the President of NEW YORK CITY ECONOMIC DEVELOPMENT
CORPORATION, the corporation described in and which executed
the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the board of
directors of said corporation; and that he signed his name
thereto by like order.
/s/ Concetta Miele
______________________________
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 17th day of December, 1993, before me personally
came Katharine P. Darrow to me known, who, being by me duly
sworn, did depose and say that she/he resides at
16 Garden Place, Brooklyn, NY; that she/he is the Senior
Vice President of THE NEW YORK TIMES COMPANY, the corporation
described in and which executed the foregoing instrument;
that she/he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the board of directors of
said corporation; and that she/he signed her/his name
thereto by like order.
/s/ Beverly Sturr
___________________________________
NOTARY PUBLIC
5
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 17th day of December 1993, before me personally came
Barry F. Sullivan, who being by me duly sworn, did depose and
say that he resides at c/o City Hall, New York, New York,
that he is the Deputy Mayor of THE CITY OF NEW YORK
and the same person who executed the foregoing instrument; and
that he acknowledged that he signed his name thereto on behalf of
The City of New York and pursuant to the authority vested in him.
/s/ Concetta Miele
______________________________
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 17th day of December 1993, before me personally
came ________________________________________, to me
known and known to me to be the City Clerk of The City of New
York, the corporation described in and which executed the
foregoing instrument, being by me duly sworn, did depose and say
that she/he resides at 750 Kappock Street, Brooklyn, NY 10463;
that she/he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it
was so affixed as provided by law; and that she/he signed
her/his name thereto as City Clerk by like authority.
/s/ Concetta Miele
______________________________
Notary Public
6
ATTACHMENT A
LAND
----
The land consists of the following property, described in the
survey performed by Robert A. Haynes, dated August 28, 1990, as
follows:
BEGINNING at a point on the westerly side of Whitestone
Expressway distant 1750 feet southerly from the corner formed by
the intersection of the southerly side of 20th Avenue and the
westerly side of Whitestone Expressway;
Thence southerly along the westerly side of Whitestone
Expressway, 2,433.07 feet to a point of curvature;
Thence along the arc of a curve having a radius of 25.00 feet and
connecting the easterly side of Linden Place with the westerly
side of Whitestone Expressway, a distance of 48.20 feet;
Thence northerly along the easterly side of Linden Place, 395.44
feet;
Thence easterly at right angles with the easterly side of Linden
Place 235.94 feet;
Thence northerly at right angles with the previous course 87.58
feet;
Thence easterly along a course forming an interior angle of 93
degrees 05 minutes 30 seconds with the previous course, 335.95
feet;
Thence northerly along a course forming an interior angle of 264
degrees 30 minutes 52 seconds with the previous course, 752.41
feet;
Thence northerly along a course forming an interior angle of 129
degrees 24 minutes 22 seconds with the previous course, 1,118.19
feet;
Thence easterly along a course forming an interior angle of 94
degrees 50 minutes 44 seconds with the previous course, 652.21
feet to the point or place of BEGINNING.
The land is also identified by the following block and lot
numbers:
Block 4183 Lot p/o 1
Block 4242 Lot p/o 1
Block 4243 Lot p/o 1
Block 4280 Lot p/o 1
Block 4281 Lot p/o 1
Block 4282 Lot 1
Block 4283 Lot 1
Block 4284 Lot 1
Block 4306 Lots p/o 1 and 44
Block 4307 Lots 1 and p/o 4
Block 4308 Lot 1, Lot 36
Block 4310 Lot 32
Block 4336 Lots 35 and p/o 50
Block 4337 Lots 62 and p/o 76
Block 4339 Lot 46
and demapped portions of 25th Avenue, 28th Avenue, 138th
Street and 139th Street.
The land has been assigned tentative tax block and lot numbers
Block 4282, Lot 100, for future identification.
- 8 -