FUNDING AGREEMENT #1
between
NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION
and
THE NEW YORK TIMES COMPANY
Dated as of December 15, 1993
Relative to site preparation work and
foundation work required in connection with the construction
of a printing facility by The New York Times Company
in the College Point Industrial Park in the Borough of Queens
TABLE OF CONTENTS
Page
PREAMBLE 1
DEFINITIONS 4
ARTICLE ONE THE WORK; PERFORMANCE, PROCUREMENT
- ----------- AND CONTRACT REQUIREMENTS
Sec.1.1 General Provisions and Provisions Regarding
Design and Construction 17
Sec.1.2 Procurement of Services and Goods 26
Sec.1.3 Liaison to EDC 31
ARTICLE TWO THE FUNDING
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Sec.2.1 Agreement to Fund 32
Sec.2.2 Schedule for Disbursements 32
Sec.2.3 Disbursements 43
Sec.2.4 The Times's Abandonment of the Project 45
ARTICLE THREE THE TERM
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Sec.3.1 Term 49
ARTICLE FOUR CONDITIONS FOR DISBURSEMENT
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Sec.4.1 Initial Submissions by The Times 50
Sec.4.2 Documentation for Disbursements on Account
of Eligible Costs 52
Sec.4.3 Direction of Submissions 56
ARTICLE FIVE REPRESENTATIONS, WARRANTIES AND
- ------------ GUARANTIES OF THE TIMES
Sec.5.1 Organization; Standing 57
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Page
Sec.5.2 Intentionally Omitted 57
Sec.5.3 Conflict, etc. under Other Documents 57
Sec.5.4 No Litigation 58
ARTICLE FIVE-A REPRESENTATIONS AND WARRANTIES OF EDC
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Sec.5A.1 Organization; Standing 59
Sec.5A.2 Due Authorization; Enforceable Obligations 59
ARTICLE SIX COVENANTS
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Sec.6.1 Requisitions Update The Times's Representations 60
Sec.6.2 Compliance with Other Agreements and Law;
Legal Status 60
Sec.6.3 Maintenance of and Compliance with Insurance
Requirements 60
Sec.6.4 Maintenance of Office 61
Sec.6.5 Compliance with Applicable Law 61
Sec.6.6 Assignment 62
Sec.6.7 Maintenance of Records 63
Sec.6.8 Intentionally Omitted 63
Sec.6.9 Due Application of Funding Proceeds 63
Sec.6.10 Defects; Non-Conforming Work 64
Sec.6.11 Participation by Women and Minority Owned
Businesses 64
Sec.6.12 No Liens 69
Sec.6.13 Intentionally Omitted 69
Sec.6.14 Intentionally Omitted 69
Sec.6.15 Intentionally Omitted 69
Sec.6.16 MacBride Principles 69
Sec.6.17 No Waiver of Compliance 70
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Page
ARTICLE SEVEN DEFAULT
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Sec.7.1 Events of Default 71
Sec.7.2 Default Remedies; Exculpation 72
ARTICLE EIGHT NOTICES
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Sec.8.1 Notices 76
Sec.8.2 Disbursement Submissions 77
ARTICLE NINE GENERAL CONDITIONS AND COVENANTS
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Sec.9.1 Conflict of Interest 78
Sec.9.2 No Liability of Individuals 79
Sec.9.3 Anti-Boycott Provisions 79
Sec.9.4 Governing Law 80
Sec.9.5 Liability of EDC 80
Sec.9.6 Amendments 82
Sec.9.7 Successors and Assigns 82
Sec.9.8 Assignment of Funds 82
Sec.9.9 Counterparts 82
Sec.9.10 Interpretation 83
Sec.9.11 Indemnity 83
Sec.9.12 No Agency 84
Sec.9.13 Venue 85
Sec.9.14 Investigations; Cooperation 86
Sec.9.15 Intentionally Omitted 94
Sec.9.16 Maximum Interest Rate 94
Sec.9.17 Captions 94
Sec.9.18 Gender, Etc. 94
Sec.9.19 Assignment by EDC 95
Sec.9.20 Obligations of Newspaper Division 95
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ARTICLE TEN AGREEMENT OF THE CITY
- -----------
Sec.10.1 City's Agreement to Fund EDC 96
Sec.10.2 Valid Agreement of the City 96
Sec.10.3 The Times's Rights Against the City 96
Atts: Appendix A - Premises
Appendix B - Insurance Requirements
Appendix C - Reimbursement Schedule
Appendix C-1 - Amortized Reimbursement Schedule
Appendix D - The Times's Certificate of Good Standing
Appendix E - EDC's Legal Opinion
Appendix F - EDC's Secretary's Certificate
Appendix G - Equal Employment Requirements
Appendix H - Employment Reporting Requirement
Appendix I - Intentionally Omitted
Appendix J - MacBride Principles Rider
Appendix K - Urban Renewal Plan
Appendix L - Corporation Counsel's Legal Opinion
Exhibit A - Form Legal Opinion
Exhibit B - Form Certificate of Specimen Signature
Exhibit C - AIA Forms
Exhibit D - Form Certification to be Attached to Requisition
Exhibit E - Form Expedited Certification Affidavit
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FUNDING AGREEMENT #1 dated as of December 15, 1993 between NEW YORK CITY
ECONOMIC DEVELOPMENT CORPORATION ("EDC"), a local development corporation
formed pursuant to Section 1411 of the Not-for-Profit Corporation Law of the
State of New York, having its principal office at 110 William Street, New
York, New York 10038, and THE NEW YORK TIMES COMPANY ("The Times"), a New York
State corporation, having its principal office at 229 West 43rd Street, New
York, New York, 10036.
PREAMBLE:
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W I T N E S S E T H
-------------------
WHEREAS:
A: The City of New York (the "City"), a municipal corporation of the
State of New York, is the owner in fee of certain real property identified, as
of the date hereof, as Block 4183, p/o Lot 1, Block 4242, 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, Block
4339, Lot 46 and 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 tentative tax block and lot
numbers Block 4282, Lot 100 for future identification, as such property is
more particularly described in Appendix A attached hereto and made a part
hereof (the "Premises); and
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B: The City, as landlord, and EDC, as tenant, entered into a lease
affecting the Premises dated as of the date hereof, which lease was assigned
by EDC to The Times pursuant to an Assignment and Assumption of Lease with
Consent dated as of the date hereof (the lease as so assigned, and as the same
may hereafter be amended, is hereinafter referred to as, the "Lease"), and for
which Lease EDC will act as the City's managing agent pursuant to Article 42
of the Lease; and
C: Pursuant to the terms of the Lease, The Times is obligated to
construct on the Premises a facility of no less than approximately 360,000
square feet for the printing, production and distribution of newspapers,
magazines and other periodicals or printed materials, and, at the sole
discretion of The Times, other such buildings and improvements on the Premises
as are permitted pursuant to the terms and provisions of the Lease, including
without limiting the generality of the foregoing, the expansion of the
printing facility to a size greater than 360,000 square feet (collectively the
"Project"); and
D: As a part of the Project, The Times will be performing site
preparation work (including drainage and filling) and foundation work
(including, without limitation, piling) on the Premises; and
E: In order to facilitate and enhance the feasibility of the
construction of the Project, and in order to (i) perform certain site
preparation work required in connection with the development of the Project,
including drainage and filling, and (ii) perform foundation work on the
Premises, including without limitation, the furnishing and driving of piles,
the pouring of concrete for pile caps, grade beams and structural floor slab,
and the
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furnishing and installation of reinforcing steel, EDC and the City have agreed
to make available City capital budget funds to The Times to pay for a portion
of the costs incurred by The Times in connection with the performance of such
work; and
F: The City and EDC have entered into an Amended and Restated
Contract dated as of June 30, 1993, as amended (the "Consolidated Contract"),
pursuant to which the City will provide EDC with City capital budget funds for
use, subject to the terms, conditions and limitations set forth in this
Agreement, in connection with the construction of the Project; and
G: The Times, independently, and not as agent of the City or EDC,
desires to perform, or cause the performance of, the Construction Work (as
hereinafter defined) subject to the terms, conditions and limitations set
forth in this Agreement; and
H: Pursuant to its obligations under the Consolidated Contract and in
furtherance of its corporate purpose of fostering economic development in the
City, EDC has agreed, subject to the terms, conditions and limitations set
forth herein, to disburse to The Times for the performance of the Construction
Work, payments up to, but not to exceed, $16,000,000 (the "Funding") for the
purpose of financing the Eligible Costs (as hereinafter defined) of the
Construction Work.
NOW, THEREFORE, EDC and The Times covenant and agree as follows:
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DEFINITIONS
-----------
As used in this Funding Agreement, the following initially capitalized
terms shall have the respective meanings indicated opposite each of them:
"Abandonment
Date" As defined in Sec.2.4(c).
"Accounting
Principles" The then current generally accepted accounting
principles consistently applied which relate to the
accrual method of accounting but subject to the
exceptions, if any, expressly set forth in this
Agreement.
"Affiliate" Any Person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under
common control with, The Times. For purposes hereof, the
term "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the
management and policies of The Times through the ownership
of voting securities, by contract, or otherwise. Ownership
of or by The Times includes beneficial ownership effected by
ownership of intermediate entities. An "Affiliate" of a
Person other than The Times shall be determined using the
same standard of control and ownership set forth herein with
respect to The Times. Unless the context otherwise
requires, any reference to an "Affiliate" in this Agreement
shall be deemed to refer to an Affiliate of The Times.
"Agreement" This Funding Agreement and any amendments thereto.
"Aggregated
Construction
Phase" The simultaneous construction by The Times of (i) the
aggregate of two or more of the five separate construction
phases hereinafter defined as Phase One Construction, Phase
Two Construction, Phase Three Construction, Phase Four
Construction and Phase Five Construction, and/or (ii) the
aggregate of a Segment (as hereinafter defined) of
Construction Work included within either Phase One
Construction, Phase Two Construction, Phase Three
Construction, Phase Four Construction or Phase Five
Construction with one or more
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Segments included within one or more of the other
Construction Phases of the Construction Work.
"Amortized
Reimbursement
Amount" As defined in Sec.2.4(a).
"Approvals" As defined in Sec.1.1(b).
"Architect" Any registered architect, architectural firm, professional
engineer, combined practice or association licensed in the
State of New York, selected by The Times, or any licensed
architect or engineer on staff to a Construction Manager or
General Contractor (as such terms are hereinafter defined)
who is authorized to sign construction documents, in its
professional capacity, on behalf of the Construction Manager
or General Contractor.
"Buildings
Department" The City's Department of Buildings, or any successor in
function.
"Business Day" 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.
"City" As defined in Recital A of the Preamble.
"College Point
Improvement
Fund Payments" As defined in Section 3.09 (b)(iii) of the Lease.
"Commencement
Date" As defined in Sec.3.1.
"Commissioner" As defined in Sec.9.14(a).
"Completed Cover
Sheet" As defined in Sec.4.1.
"Consolidated
Contract" As defined in Recital F of the Preamble.
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"Construction
Commencement
Date" As defined in Section 13.01(b)(ii) of the Lease.
"Construction
Contract" (A) Any construction management agreement executed by The
Times and the Construction Manager (as hereinafter defined),
if any, with respect to the services performed by the
Construction Manager with respect to all or any portion of
the Construction Work; or (B) any contract between The Times
and the General Contractor, if any, under which the General
Contractor is obligated to perform all or any portion of the
Construction Work; or (C) any contract between The Times and
any other contractor for the performance of all or any part
of the Construction Work. The term "Construction Contract"
shall not include any contract entered into by a contractor
with any subcontractor, materials supplier, consultant or
any other Person.
"Construction
Manager" Any construction manager selected by The Times, responsible
for the performance of certain construction management
services relative to the Construction Work.
"Construction
Phase" Any one of the five separate construction phases hereinafter
defined as Phase One Construction, Phase Two Construction,
Phase Three Construction, Phase Four Construction or Phase
Five Construction.
"Construction
Work" Any construction activities undertaken by or on behalf of
The Times in order to (i) perform the following site
preparation work ("Site Preparation Work") for the Project:
drainage and filling, and (ii) make foundation-related
improvements on the Premises, including without limitation,
the furnishing and driving of piles, the pouring of concrete
for pile caps, grade beams and structural floor slab, and
the furnishing and installation of reinforcing steel;
provided, however, that in no event shall Construction Work
include any "pre-construction" activities such as the
performance of soil boring work, staking, surveying,
measuring and surcharging. For purposes hereof, the portion
of the Site Preparation Work that is referred to as
"filling" and that will be deemed to be Construction Work
that is eligible for reimbursement from the Funding shall
include the bringing to the Premises and the placement
thereon of soil or other "fill" material in such amounts as
will raise the grade of the land from the grade as it exists
at the
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Commencement Date to the "design grade" indicated on the
Plans and Specifications (as hereinafter defined) submitted
by The Times to the Buildings Department as the grade upon
which The Times intends to construct its foundation for any
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 hereinafter
defined). In no event shall "filling" include the bringing
to the Premises and the placement thereon of soil or other
"fill" material which is necessary for the compaction or
surcharging of the land and which, after such compaction, is
removed from the Premises; provided, however, that if such
soil or "fill" material is permitted to sit on the land for
a period of time and after such period of time it is
determined that a portion of the soil or "fill" material
which initially lay above the "design grade" settled to such
a degree that it is at the time of such determination at or
below the "design grade", such portion of the soil or "fill"
material will be deemed to be Construction Work that is
eligible for reimbursement from the Funding.
"Contractor" Any contractor under a Construction Contract,
including without limitation, a Construction Manager
or General Contractor. The term "Contractor" shall
not include any subcontractor, materials supplier, or
other Person that has not entered into a Construction
Contract directly with The Times.
"DBS" As defined in Sec.6.11(d).
"Department of
Investigation" As defined in Sec.9.14(a).
"Deputy Mayor" As defined in Sec.9.14(a).
"DLS" The Division of Labor Services of the City's Department of
Business Services, or its successor in function.
"EDC" As defined in the first paragraph of this Agreement.
"EDC Default
Notice" As defined in Sec.9.5(b).
"Eight Press
Facility" A Printing Facility (as hereinafter defined) adequate to
accommodate the installation and operation therein of eight
printing presses and other equipment related primarily to
printing, collating, bundling, and
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distribution functions necessary in connection with the
production of newspapers, magazines and other periodicals or
printed materials.
"Eligible
Costs" The costs of the Construction Work paid or payable by The
Times to Contractors, subcontractors, suppliers and material
persons for labor and materials utilized in connection with
the Construction Work.
"Engineer of
Record" The professional engineer, if any, designated by The Times
or by the Construction Manager or the General Contractor, as
the case may be, to act as the engineer of record for the
Project.
"Entity" As defined in Sec.9.14(a).
"Events of
Default" Those events set forth in Sec.7.1.
"Federal Courts" As defined in Sec.9.13.
"Final Penalty" As defined in Sec.9.14(f)(ii).
"43rd Street
Facility" As defined in Sec.2.4(c)(ii).
"Fourth
Anniversary
Date" As defined in Sec.2.2(a)
"Five Press
Facility" A Printing Facility adequate to accommodate the installation
and operation therein of five printing presses and other
----
equipment related primarily to printing, collating, bundling
and distribution functions necessary in connection with the
production of newspapers, magazines and other periodicals or
printed materials.
"Funding" As defined in Recital H of the Preamble.
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"Funding Agreement
#2" The funding agreement between EDC and The Times dated as of
the date hereof which provides for the funding to The Times
of City capital budget dollars necessary to pay for the
construction of a City sanitary sewer system to service the
Premises, as such agreement may be amended from time to
time.
"Funding Agreement
#3" The funding agreement between EDC and The Times dated as of
the date hereof which provides for the funding to The Times
of funds necessary to pay for the construction of an interim
New York City Police Department evidence vehicle facility,
as such agreement may be amended from time to time.
"Funding Agreement
#4" The funding agreement between EDC and The Times dated as of
the date hereof which provides for the funding to The Times
of City capital budget dollars necessary to pay for certain
reconstruction of the Whitestone Expressway Service Road
from 20th Avenue to Linden Place (the "Whitestone Road"), a
City street running adjacent to Premises, as such agreement
may be amended from time to time.
"General
Contractor" Any general contractor selected by The Times, responsible for
the performance of all or any portion of the general
construction work relative to the Construction Work.
"Good Faith W/MBE
Participation
Dollar Value" As defined in Sec.6.11(a).
"Governmental
Authorities" The United States of America, the State of New York,
the City and any agency, department, legislative body,
commission, board, bureau, instrumentality or
political subdivision or public benefit corporation 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,
sidewalk or water comprising a part of or immediately
adjacent to the Premises.
"Gross Building
Area" As defined in Article 1 of the Lease.
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"Guaranteed W/MBE
Participation
Dollar Value" As defined in Sec.6.11(a).
"Impositions" As defined in Section 3.09(b)(i) of the Lease.
"Interim Penalty" As defined in Sec.9.14(f)(i).
"Investigation" As defined in Sec.9.14(a).
"Late Charge
Rate" The Prime Rate (as hereinafter defined) plus one percent
(1%).
"Lease" As defined in Recital B of the Preamble.
"Member" As defined in Sec.9.14(a).
"Minimum Printing
Facility" A Printing Facility of no 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, magazines and other periodicals or
printed materials.
"MBEs" As defined in Sec.6.11(a).
"New York State
Courts" As defined in Sec.9.13.
"Operational
Date" As defined in Sec.2.4(c)(v).
"Outside Operational
Date" As defined in Sec.2.4(c)(iv).
"Parties" EDC and The Times.
"Person" 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.
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"Phase One
Construction" Site Preparation Work and the laying of a foundation for,
and the construction of, a Minimum Printing Facility.
"Phase Two
Construction" Site Preparation Work and the laying of a foundation for,
and the construction of, the Five Press Facility.
"Phase Three
Construction" Site Preparation Work and the laying of the foundation for,
and the construction of, the Six Press Facility.
"Phase Four
Construction" Site Preparation Work and the laying of a foundation for,
and the construction of, the Seven Press Facility.
"Phase Five
Construction" Site Preparation Work and the laying of a foundation for,
and the construction of, the Eight Press Facility.
"Plans and
Specifications" (i) The drawings and plans and specifications for the
Project which includes the Construction Phase or Aggregated
Construction Phase to be initially constructed by The Times
(The Times hereby acknowledging that the portion of the
Project to be initially constructed by The Times shall be at
least the Minimum Printing Facility and that the Plans and
Specifications for such initial construction shall indicate
thereon the plans and specifications for the construction of
the Minimum Printing Facility, provided, however, that such
plans and specifications need not be completed to the extent
required by the Buildings Department to issue a building
permit but should be completed to the extent required by the
Buildings Department to issue a foundation permit), prepared
by the Architect, and approved to the extent required by
Sec.1.1 hereof, as such drawings and plans and specifications
may be modified or amended from time to time in accordance
with this Agreement, and (ii) any subsequent drawings and
plans and specifications, or modifications or amendments to
the initial drawings and plans and specifications, for any
expansion of the Project required by any additional
Construction Phase or Aggregated Construction Phase,
prepared by the Architect and as approved to the extent
required by Sec.1.1 hereof.
"Premises" As defined in Recital A of the Preamble.
"Prime Rate" The base or prime rate of interest from time to time charged
by
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Chemical Bank, as such rate is published by The New York
-------------
Times newspaper, or by The Wall Street Journal if such rate
----- ------------------------
is not published by The New York Times at the time in
--------------------
question.
"Printing
Facility" A facility for the printing, production and distribution of
newspapers, magazines and other periodicals or printed
materials.
"Prohibited
Person" As defined in Sec.1.2(b)(2).
"Project" As defined in Recital C of the Preamble.
"Project Budget" As defined in Sec.4.3.
"Project Work" Any pre-construction activities (including, without
limitation, soil borings, surveying and surcharging),
clearing, excavation, grading, filling and construction
activities undertaken by or on behalf of The Times for the
purpose of constructing the Project all in accordance with
this Agreement and the Plans and Specifications, whether or
not paid for with the Funding.
"Public Parties" As defined in Sec.9.11(a).
"Reimbursement
Amount" As defined in Sec.2.4(a).
"Rental" As defined in Article 1 of the Lease.
"Requirements" Any and all laws, rules, regulations, orders, ordinances,
statutes, codes, executive orders, resolutions and
requirements of all Governmental Authorities currently in
force or hereafter adopted applicable to the Premises and/or
the Project Work including without limitation, those rules,
regulations and requirements of the Urban Renewal Plan (as
hereinafter defined).
"Requisition" As defined in Sec.4.2(a)(ii).
"Retainage" As defined in Sec.2.2(a)(1).
"Reviewable
Features" With respect to any submission of the Plans and
Specifications, features of such submission the review of
which is necessary to enable
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EDC to determine (i) compliance with the requirements set
forth in the Urban Renewal Plan to the extent that such
requirements are applicable to The Times, and (ii) the
number of square feet of Gross Building Area to be
constructed.
"Reviewing
Parties" The Buildings Department, the City's Fire Department, the
City's Department of Environmental Protection, the City's
Department of Transportation, and any other Governmental
Authority with jurisdiction over the Project or the Premises
and responsible for reviewing and approving drawings, plans
and specifications for the Project in the normal course of
their business in connection with (i) the issuing of permits
or approvals (including a building permit) with respect to
any construction project in the Borough of Queens, City of
New York, or (ii) ensuring compliance with the Requirements.
"Scheduled
Completion Date" The date on which The Times is required, pursuant to Section
13.01(b) of the Lease, to Substantially Complete (as
hereinafter defined) construction of the Minimum Printing
Facility.
"Segments" Portions or aspects of the Project Work which can be
performed or constructed independently from the remainder of
the Project Work or from other portions or aspects of the
Project Work; for example, Site Preparation Work, driving of
piles, foundation work, construction of a Printing Facility,
landscaping.
"Seven Press
Facility" A Printing Facility adequate to accommodate the installation
and operation therein of seven printing presses and other
-----
equipment related primarily to printing, collating, bundling
and distribution functions necessary in connection with the
production of newspapers, magazines and other periodicals or
printed materials.
"Site Preparation
Work" As defined in the definition of Construction Work.
"Six Press
Facility" A Printing Facility adequate to accommodate the
installation and operation therein of six printing
---
presses and other equipment related primarily to
printing, collating, bundling and distribution
functions necessary in connection with the production
of newspapers, magazines and other periodicals or
printed materials.
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"Short-Term Late
Charge Rate" The rate of interest from time to time charged in connection
with six (6) month Treasury bonds, plus one percent (1%).
"Substantial
Completion" or
"Substantially
Complete(d)" With respect to only the initial Construction Phase of the
Project (which initial Construction Phase shall be no
smaller in size than the Minimum Printing Facility), the
completion of construction of an enclosed envelope of floor
space, environmentally controlled and containing (i)
heating, ventilating and air conditioning systems installed
for general purpose or multi-purpose occupancy, (ii) water,
sewer and sanitary facilities suitable for general purpose
or multi-purpose occupancy, (iii) electrical service,
including interior lighting, throughout the constructed
structure suitable for general purpose or multi-purpose
occupancy, (iv) fire detection and protection and safety
facilities suitable for general purpose or multi-purpose
occupancy throughout the structure, and (v) building shell
construction constructed to a level adequate to permit
build-to-suit occupancy with interior and exterior walls as
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 systems operational in the production of
newspapers. Substantial Completion shall be established
upon receipt by EDC of a certification from the Architect or
Engineer of Record, that the above described structure shall
have been constructed substantially in accordance with the
Plans and Specifications and any other construction
documents filed with the Buildings Department, provided
however, that the date of Substantial Completion shall be
established by the date of delivery of such certification.
"Target Building
Size" As defined in Sec.2.1(c)(i).
"Target
Footprint" As defined in Sec.2.1(c)(i).
"Term" As defined in Sec.3.1.
"The Times" As defined in the first paragraph of this Agreement.
"The Times
Indemnitees" As defined in Sec.9.11(b).
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"Transaction
Documents" As defined in Sec.9.14(a).
"Unavoidable
Delays" Delays caused by (i) strikes, slowdowns, walkouts, lockouts
or other labor troubles, (ii) acts of God, (iii)
catastrophic weather conditions, (iv) inability to obtain
labor or materials due to labor disputes, (v) court orders
enjoining commencement or continuation of the Project Work,
(vi) enemy action, (vii) civil commotion, (viii) shortage of
fuel, supplies or labor resulting from governmental declared
priorities in connection with a public emergency, (ix)
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 The Times or its
Contractors or their subcontractors, (x) fire, (xi)
casualty, (xii) the failure of EDC to disburse the Funding
or any portion thereof in accordance with the provisions of
this Agreement, (xiii) the failure of EDC to review, comment
on, approve or disapprove, and inform the Buildings
Department of its approval of, the Plans and Specifications
within the time periods required by Article One hereof
(provided that such failure is not a result of The Times's
failure to submit Plans and Specifications of reasonably
sufficient detail to permit EDC to properly review such
Plans and Specifications or to submit Plans and
Specifications appropriately modified to reflect EDC's
comments thereon), or (xiv) other causes not within The
Times's control that is causing a delay in The Times's
performance of its construction obligations hereunder. The
Times shall use its good faith efforts to notify EDC in
writing, stating when such delay commenced, not later than
ten (10) Business Days after The Times has first received
knowledge of the occurrence of any of the foregoing
conditions; provided, however, that The Times's failure to
notify EDC of the occurrence of an event constituting an
Unavoidable Delay shall not affect the commencement of such
delay or otherwise result in the loss of any benefit or
right granted to The Times under this Agreement. In no
event shall The Times's financial condition or inability to
obtain financing constitute an Unavoidable Delay.
"Urban Renewal
Plan" The Second Amended Urban Renewal Plan for the College
Point II Industrial Development Project, dated
February 1989, in effect as of the date of this
Agreement (a copy of which is attached hereto as
Appendix K), and all amendments and modifications
thereto affecting landscaping requirements compliance
with which would not require The Times to incur a
material cost.
-15-
"WBEs" As defined in Sec.6.11(a).
"W/MBEs" As defined in Sec.6.11(a).
"W/MBE
Participation
Dollar Value" As defined in Sec.6.11(c).
"W/MBE
Percentage" As defined in Sec.6.11(c).
"W/MBE
Report" As defined in Sec.6.11(b).
"Whitestone Road" As defined in the definition of Funding Agreement #4.
-16-
ARTICLE ONE - THE WORK; PERFORMANCE, PROCUREMENT AND
----------------------------------------------------
CONTRACT REQUIREMENTS
---------------------
Sec.1.1 General Provisions and Provisions Regarding Design and
---------------------------------------------------------------
Construction.
- -------------
(a) General. The Times agrees to perform the Project Work and EDC
--------
agrees to disburse the Funding on the terms and conditions contained in this
Agreement.
(b) Plans and Specifications. (1)(i) The Times shall prepare the
-------------------------
Plans and Specifications 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. 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 requirements
of the Urban Renewal Plan to the extent that such requirements are applicable
to The Times. The Times agrees to deliver a copy of the Plans and
Specifications (in a single or in multiple submissions, at the option of The
Times) prepared in accordance with the foregoing, together with 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 The
Times has informed such Architect or Engineer of Record that it intends to
install at the facility contemplated by such Plans and Specifications (it
being understood that the printing presses and equipment that The Times
informs such Architect or Engineer of Record that it intends to install at
the facility
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shall be such printing presses and equipment as is necessary to operate
each of the Minimum Printing Facility, the Five Press Facility, the Six Press
Facility, the Seven Press Facility and the Eight Press Facility, as the case
may be), to EDC for EDC's review and approval prior to or simultaneous
with its submission of the Plans and Specifications to the Buildings
Department. EDC's review and approval of the Plans and Specifications as
provided in this Sec.1.1(b) shall be limited to Reviewable Features. EDC's
approval of the Plans and Specifications shall not be unreasonably withheld.
EDC will approve or disapprove and comment on such submission with respect
to Reviewable Features within twenty-five (25) days after receipt thereof
and, if approved, will immediately notify The Times, the Buildings Department
and any other applicable Reviewing Party of such approval. If EDC
disapproves of and has comments on any submission of the Plans and
Specifications or any portion or aspect thereof, such disapproval and
comments will be given to The Times in writing in a detailed manner within
the twenty-five (25) day time period specified herein. As to those portions
or aspects of the Plans and Specifications which EDC does not disapprove and
comment on in writing in a detailed manner within such twenty-five (25) day
time period, such portions or aspects of the Plans and Specifications shall be
deemed approved and if the portions or aspects that have been deemed approved
constitute an independent element of the Project Work (e.g. Site Preparation
Work, the driving of piles, foundation work, construction of the Printing
Facility, landscaping), EDC shall promptly advise the Buildings Department and
any other applicable Reviewing Party of such approval. The Times shall submit
to EDC modified Plans and
-18-
Specifications with respect to those portions or aspects of the Plans and
Specifications which are disapproved and commented on by EDC within the
applicable time periods set forth herein, responsive to such comments, for
EDC's approval or disapproval and comment, until approved by EDC. EDC will
approve or disapprove and comment on each such subsequent submission within
fifteen (15) days after receipt thereof, and, if approved, will immediately
notify The Times, the Buildings Department and any other applicable Reviewing
Party of such approval. As to those portions or aspects of the modified Plans
and Specifications which EDC does not disapprove and comment on in writing in
a detailed manner within such fifteen (15) day time period, such portions or
aspects of the modified Plans and Specifications shall be deemed approved and
if the portions or aspects that have been deemed approved constitute an
independent element of the Project Work, EDC shall promptly advise the
Buildings Department and any other applicable Reviewing Party of such
approval.
(ii) If EDC disapproves and comments on any submission of the
Plans and Specifications and The Times has a good faith reason to believe that
such disapproval and/or comments are unreasonable, then The Times shall have
the right to submit to arbitration in accordance with the provisions of
Article 34 of the Lease the question as to whether, taking into account the
terms and conditions of this Agreement and the Lease, such disapproval and/or
comments are unreasonable. If the arbitrator decides that EDC's disapproval
and/or comments are unreasonable then, from the date of such determination in
favor of The Times, the Plans and Specifications shall be deemed approved.
-19-
(iii) If any portion or aspect of the Plans and Specifications is
deemed approved in accordance with Sec.1.1(b)(1)(i) or Sec.1.1(b)(1)(ii) above,
then upon receipt of a notice from The Times that such portions or aspects of
the Plans and Specifications have been deemed approved in accordance with
Sec.1.1(b)(1)(i) of this Agreement or upon receipt by The Times of a
determination in favor of The Times in arbitration in accordance with
Sec.1.1(b)(1)(ii) of this Agreement, EDC shall have ten (10) days to advise the
Buildings Department and any other applicable Reviewing Party of such deemed
approval. For each day beyond the ten (10) day time period set forth herein
that EDC fails to advise the Buildings Department and any other applicable
Reviewing Party of such deemed approval of the Plans and Specifications, The
Times shall be entitled to an abatement of future installments of Rental
(other than Impositions and College Point Improvement Fund Payments) due under
the Lease in an amount equal to $1,000.
(2) In addition to The Times's submission of the Plans and
Specifications to EDC for its review and approval in accordance with
Sec.1.1(b)(1) hereof, The Times shall submit such Plans and Specifications to
the Reviewing Parties, as required by law, rule, regulation or other
applicable Requirement, for their review and approval in the normal course of
their business. The Times shall also obtain all required permits, consents,
certificates, licenses, authorizations and approvals of the Buildings
Department, and all other Governmental Authorities having jurisdiction over
the Project and the Premises (all such permits, consents, certificates,
licenses, authorizations and approvals are hereinafter collectively referred
to as the "Approvals"). The Times shall deliver to EDC copies of the
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Plans and Specifications that are filed with, and approved by, the Buildings
Department.
(3) (i) The Times shall give notice to EDC of any and all
changes The Times wishes to make to the Plans and Specifications prior to any
construction in accordance with such proposed changes. No change which would
(i) cause changes to be made to the Plans and Specifications with respect to
those portions or aspects of the Plans and Specifications previously approved
or deemed approved in accordance with Sec.1.1(b)(1) or this Sec.1.1(b)(3), or
(ii) cause the Plans and Specifications to be in material noncompliance with the
requirements set forth in the Urban Renewal Plan, or (iii) alter the Gross
Building Area so that it is less than 360,000 square feet (unless such change
to the Plans and Specifications is accompanied by a letter from the Architect
or Engineer of Record stating that the Facility contemplated by such Plans and
Specifications, if constructed in accordance therewith, is designed to
accommodate the printing presses and other equipment that The Times has
informed such Architect or Engineer of Record it intends to install at such
Facility, it being understood that the printing presses and equipment that The
Times informs such Architect or Engineer of Record of shall be at least such
printing presses and equipment as is necessary to operate the Minimum Printing
Facility), shall be made to the Plans and Specifications without the prior
written approval of EDC, which approval shall not be unreasonably withheld.
EDC will approve or disapprove and comment upon such changes within twenty-
five (25) days after receipt thereof and, if approved, will immediately notify
The Times, the Buildings Department and any other applicable Reviewing Party
of such approval. If EDC disapproves and has comments on any such changes,
such comments will be given to The Times in writing in a detailed manner
within the twenty-five (25) day
-21-
time period specified herein. As to those changes which EDC does not
disapprove and comment upon in writing in a detailed manner within such
twenty-five (25) day time period, such changes shall be deemed approved and if
those changes that have been deemed approved constitute changes to an
independent element of the Project Work (as exemplified in Sec.1.1(b)(1)(i)
above), EDC shall promptly advise the Buildings Department and any other
applicable Reviewing Party of such approval. The Times shall submit to EDC
modified Plans and Specifications with respect to those changes which are
disapproved and commented on by EDC within the applicable time periods set
forth herein, responsive to such comments, until approved by EDC. EDC will
approve or disapprove and comment on each such subsequent submission within
fifteen (15) days after receipt thereof, and, if approved, will immediately
notify The Times, the Buildings Department and any other applicable Reviewing
Party of such approval. As to those portions or aspects of the modified Plans
and Specifications which EDC does not disapprove and comment on in writing in
a detailed manner within such fifteen (15) day time period, such portions or
aspects of the Plans and Specifications shall be deemed approved and if the
portions or aspects that have been deemed approved constitute an independent
element of the Project Work, EDC shall promptly advise the Buildings
Department and any other applicable Reviewing Party of such approval.
(ii) If EDC disapproves and comments on any proposed changes to
the Plans and Specifications and The Times has a good faith reason to believe
that such disapproval and/or comments are unreasonable, then The Times shall
have the right to submit to arbitration in accordance with the provisions of
Article 34 of the Lease the
-22-
question as to whether, taking into account the terms and conditions of this
Agreement and the Lease, such disapproval and/or comments are unreasonable.
If the arbitrator decides that EDC's disapproval and/or comments are
unreasonable then, from the date of such determination in favor of The Times,
the proposed changes to the Plans and Specifications shall be deemed approved.
(iii) If any portion or aspect of any subsequent submission of the
Plans and Specifications is deemed approved in accordance with Sec.1.1(b)(3)(i)
or Sec.1.1(b)(3)(ii) above, then upon receipt of a notice from The Times that
such portions or aspects of the subsequent submission of the Plans and
Specifications have been deemed approved in accordance with Sec.1.1(b)(3)(i) of
this Agreement or upon receipt by The Times of a determination in favor of The
Times in arbitration in accordance with Sec.1.1(b)(3)(ii) of this Agreement, EDC
shall have ten (10) days to advise the Buildings Department and any other
applicable Reviewing Party of such deemed approval. For each day beyond the
ten (10) day time period set forth herein that EDC fails to advise the
Buildings Department and any other applicable Reviewing Party of such deemed
approval of the subsequent submission of the Plans and Specifications, The
Times shall be entitled to an abatement of future installments of Rental
(other than Impositions and College Point Improvement Fund Payments) due under
the Lease in an amount equal to $1,000.
(4) Except with respect to compliance with the requirements set forth
in the Urban Renewal Plan, EDC's approval of the Plans and Specifications or
any modifications thereto or any subsequent submissions thereof shall not be,
nor shall it be construed as being, or relied upon as, a determination that
such comply with the Requirements or are
-23-
structurally, architecturally or by any other standard technically correct.
(5) Notwithstanding anything to the contrary contained herein,
Plans and Specifications submitted to EDC for EDC's review and approval in
accordance herewith, if submitted in multiple submissions or otherwise 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 The Times's ultimate obligations under the Lease to
submit Plans and Specifications that, 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
Segment, Construction Phase or Aggregated Construction Phase being reviewed by
EDC. For example, the Plans and Specifications need not contain details
regarding landscaping in order for the Times to proceed with Site Preparation
Work or foundation work, provided that such Plans and Specifications show
compliance with all Requirements of the Urban Renewal Plan applicable to such
Site Preparation Work or foundation work. EDC agrees that it will not
disapprove, comment on, or fail to advise the Buildings Department and any
other applicable Reviewing Party of its approval or deemed approval of Plans
and Specifications on the grounds that such Plans and Specifications do not
show compliance with Requirements of the Urban Renewal Plan that are not
required to be addressed by such Plans and Specifications pursuant to the
provisions of this Sec.1.1(b)(5).
(c) Right to Proceed. EDC will not be obligated to disburse any of
------------------
the Funding until (i) EDC has approved the Plans and Specifications in
accordance with Sec.1.1(b) hereof,
-24-
and (ii) all Approvals necessary for the construction of any portion of the
Construction Work which The Times is then requesting to be funded with the
Funding, have been obtained. Nothing contained herein is intended to prohibit
or otherwise prevent The Times from proceeding with the construction of the
Project or any portion thereof which is not to be funded with the Funding.
(d) Performance of the Work. The Times covenants and agrees to cause
-------------------------
the Project to be constructed in accordance with the requirements of this
Agreement and with the Plans and Specifications and all applicable
Requirements.
(e) Site Inspections. Subject to the provisions of Sec.9.11(b) hereof,
-----------------
The Times shall permit EDC, its agents and/or professional consultants to
make inspections of the Premises, accompanied by a representative of The
Times, during normal business hours or otherwise when Construction Work is in
progress, at reasonable times and upon reasonable prior notice to The Times
and in accordance with applicable safety standards, as it reasonably deems
necessary to observe compliance with this Agreement. Such inspections shall
be visual only and shall not require the uncovering of any work unless
specifically requested in writing by EDC; provided, however, that EDC shall
request the uncovering of work only if there is reasonable evidence or cause
to believe that the work was not performed in accordance with the Plans and
Specifications or the Requirements, and further provided that if the work that
has been uncovered is determined to be performed in accordance with the
Plans and Specifications or the Requirements, EDC shall pay the costs
associated with the uncovering and if the work that has been uncovered is
determined to
-25-
be unacceptable because it was not performed in accordance with the Plans and
Specifications or the Requirements, The Times shall pay the costs associated
with the uncovering. EDC shall use its best efforts to cause such inspections
to be made in a manner such that it will not interfere with the progress of
the Construction Work or other Project Work. The omission or failure of EDC
or any representative thereof to make such inspections, or to notify The Times
of any non-compliance with the terms of this Agreement or the Plans and
Specifications, shall in no way relieve The Times of its obligations under
this Agreement or impose any liability upon EDC, its consultants and agents.
Nothing contained in this Sec.1.1(e) shall be construed to give EDC the right
under this Agreement to stop, hinder or delay the Construction Work.
Sec.1.2 Procurement of Services and Goods
---------------------------------
(a) At such time as The Times enters into a Construction Contract or
Construction Contracts, The Times shall enter into such Construction Contract
or Construction Contracts independently and not as agent of the City or EDC
for the performance of any Construction Phase of the Construction Work or any
Segments of any Construction Phase or Aggregated Construction Phase of the
Construction Work in accordance with the Plans and Specifications therefor,
including without limitation, the performance of Site Preparation Work for the
Project and the construction of the foundation and the making of foundation
related improvements on the Premises (including, without limitation, piling).
(b) (1) The Times shall have the right to enter into Construction
Contracts with a Person or Persons selected by The Times in its sole
discretion; provided however, that any
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Construction Contract with a Construction Manager or General Contractor shall
be subject to EDC's prior written approval solely as to whether such
Construction Manager or General Contractor is a Prohibited Person. Prior to
letting any Construction Contract with a Construction Manager or General
Contractor, The Times shall submit to EDC by hand delivery, registered or
certified mail, or national overnight courier service, a statement as to the
Person or Persons which The Times intends to select as its Construction
Manager or General Contractor. EDC shall advise The Times, within fifteen
(15) Business Days after receipt of such statement, whether any such Person or
Persons is a Prohibited Person. If EDC fails to so advise The Times within
such fifteen (15) Business Day period as to whether any such Person or Persons
is a Prohibited Person, such Person shall be deemed not to be a Prohibited
Person. EDC understands that The Times has entered into a Construction
Contract with Lehrer McGovern Bovis, Inc. for the performance of certain
construction management services and hereby acknowledges that, as of the date
of this Agreement, Lehrer McGovern Bovis, Inc. is not a Prohibited Person.
Notwithstanding anything to the contrary contained herein, once The Times has
entered into a Construction Contract or Construction Contracts with a Person
or Persons to act as its Construction Manager or General Contractor based on
EDC's advice that such Person or Persons are not Prohibited Persons (or EDC's
failure to notify The Times within the fifteen (15) Business Day period
described above that such Person or Persons are Prohibited Persons), The Times
shall in no event be required to terminate such Construction Contract or
Construction Contracts even if EDC thereafter determines that such Person or
Persons were, or had become, Prohibited Persons and the rights of The Times
and EDC under this Agreement
-27-
shall be unaffected and remain in full force and effect as if such Person or
Persons were not, or had not become, Prohibited Persons.
(2) For purposes hereof, the term "Prohibited Person" shall mean:
(i) Any Person (A) that is in default after notice and beyond
any applicable grace period, of its obligations under any
material written agreement with EDC or Landlord, or (B) that
directly controls, is controlled by, or is under common
control with a Person that is in default after notice and
beyond any applicable grace period, of its obligations under
any material written agreement with EDC or Landlord, unless,
in each instance, such default or breach either (x) has been
waived in writing by EDC or 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 particular in an international
boycott in violation of) the Export Administration Act of
-28-
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 the 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,
or
(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, while in the ownership of such Person, was acquired
by the City by 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.
-29-
(c) All Construction Contracts, in order to be eligible for
disbursement under this Agreement, shall provide, in substance:
(1) (intentionally omitted);
(2) that neither the Contractor nor any of its employees or
subcontractors is or shall be deemed to be an agent, servant,
employee or contractor of the City or EDC by virtue of this
Agreement or by virtue of any approval, permit, license, grant,
right or other authorization given by the City, EDC or any of
their respective officers, officials, directors, members, agents
or employees; and that the Contractor shall not commence any legal
proceeding against the City or EDC to recover any compensation
which may be payable under the Construction Contract;
(3) that the Contractor is solely responsible for the work, direction,
compensation and personal conduct of its employees and
subcontractors;
(4) (intentionally omitted);
(5) that the Contractor shall maintain accurate, readily auditable
records and accounts with supporting documentation, in accordance
with Accounting Principles, of all Construction Work performed,
and receipts and expenditures made, in connection therewith, and
that the Contractor shall make such records and accounts available
to EDC, the City and each of their respective agents and
employees, for inspection and audit at reasonable times and upon
reasonable prior written notice for a period of six (6) years
after completion of the pertinent Construction Contract; and
-30-
(6) provisions incorporating the requirements of Sec.6.5(a) (Compliance
with Applicable Law) and Sec.9.1 (Conflict of Interests).
(d) The Times shall cause the Contractors to include in any
subcontracts entered into by such Contractors for the performance of the
Construction Work, provisions substantially the same as the provisions set
forth in Sec.1.2(c) hereof.
Sec.1.3 Liaison to EDC
--------------
The Times will notify EDC, in writing, prior to the Construction
Commencement Date, of the member or members (including an alternate) of The
Times's staff who will have the authority and the primary responsibility to
communicate with EDC (whether to respond to inquiries or to provide updates
regarding the progress of the work or otherwise) regarding the performance of
each Segment, Construction Phase or Aggregated Construction Phase of the
Project Work. The Times agrees to use its good faith efforts to notify EDC in
writing of any intended substitution of said person at least five (5) days
prior to the date such substitution will take effect but in any event will
notify EDC in writing of any such substitution on the day such substitution
will take effect. The Times will cause such person to be available to the
extent reasonably necessary to communicate with EDC regarding the performance
of the Construction Work.
-31-
ARTICLE TWO - THE FUNDING
-------------------------
Sec.2.1 Agreement to Fund. (a) Subject to the terms, conditions,
--------------------
representations and warranties contained in this Agreement, EDC agrees to
disburse to The Times, an amount not to exceed the Funding, and The Times
agrees to accept the Funding, for performance by The Times of the Construction
Work. The Times agrees to utilize the Funding solely in connection with the
Construction Work. Subject to EDC's remedies upon an Event of Default and
except as otherwise provided in Sec.2.4 hereof, the Funding, once disbursed
under this Agreement, shall not be subject to any reimbursement whatsoever to
EDC.
(b) The Times acknowledges that neither EDC nor the City has
represented or warranted that the Funding will be sufficient to pay for the
entire cost of the Construction Work. The Times agrees that The Times will be
solely responsible to the extent that the Eligible Costs of the Construction
Work exceed the amount of the Funding for any reason. The Times acknowledges
that the Funding is not a fee or other compensation earned by or paid to The
Times.
Sec.2.2 Schedule for Disbursements. (a) Subject to satisfaction of,
-----------------------------
and/or compliance with, the terms and conditions of this Sec.2.2 with respect to
each Segment, Construction Phase or Aggregated Construction Phase, EDC shall
disburse the Funding to The Times in accordance with the following schedule:
(1) With respect to the aggregate of all the Segments that
constitute Phase
-32-
One Construction, provided that prior to or simultaneously
with the first request for disbursement therefor The Times
demonstrates to EDC's reasonable satisfaction through the
production of invoices, purchase orders, a purchase and sale
agreement, or other documentation reasonably satisfactory to
EDC, that The Times has purchased, or contracted to
purchase, four printing presses for delivery to the Premises
and use in connection with the Minimum Printing Facility,
EDC shall disburse to The Times, in accordance with Sec.2.3
hereof, a portion of the Funding in an aggregate amount
equal to,
(i) $3,000,000 if the Phase One Construction commences on
or prior to the fourth anniversary of the date on
which the Lease has been executed and delivered by the
parties thereto (the "Fourth Anniversary Date"), or
(ii) $4,000,000 if the Phase One Construction commences
after the Fourth Anniversary Date.
(2) With respect to the aggregate of all of the Segments that
constitute Phase Two Construction, provided that prior to or
simultaneously with the first request for disbursement in
connection therewith, The Times delivers to EDC a letter
from the Architect or the Engineer of Record stating that
the improvements contemplated by such Construction Phase or
Segment or Segments thereof (it being understood and agreed
that such improvements may consist, at a minimum, of only
the
-33-
piles on which a foundation and facility might be
constructed at a later date), as described in the Plans and
Specifications therefor, if constructed in accordance with
the specifications set forth in such Plans and
Specifications, is designed, when aggregated with the
improvements contemplated by Phase One Construction, to
accommodate the installation therein or thereon of five
printing presses, EDC shall disburse to The Times, in
accordance with Sec.2.3 hereof, a portion of the Funding
(in addition to any amounts already disbursed in
accordance with Sec.2.2(a)(1) above) in an aggregate amount
equal to $2,250,000.
(3) With respect to the aggregate of all of the Segments that
constitute Phase Three Construction, provided that prior to
or simultaneously with the first request for disbursement in
connection therewith, The Times delivers to EDC a letter
from the Architect or the Engineer of Record stating that
the improvements contemplated by such Construction Phase or
Segment or Segments thereof (it being understood and agreed
that such improvements may consist, at a minimum, of only
the piles on which a foundation and facility might be
constructed at a later date), as described in the Plans and
Specifications therefor, if constructed in accordance with
the specifications set forth in such Plans and
Specifications, is designed, when aggregated with the
improvements contemplated by Phase One
-34-
Construction and Phase Two Construction, to accommodate
the installation therein or thereon of six printing
presses, EDC shall disburse to The Times, in accordance
with Sec.2.3 hereof, a portion of the Funding (in addition
to any amounts already disbursed in accordance with
Sec.2.2(a)(1) and (2) above) in an aggregate amount equal to
$2,250,000.
(4) With respect to the aggregate of all of the Segments that
constitute Phase Four Construction, provided that prior to
or simultaneously with the first request for disbursement in
connection therewith, The Times delivers to EDC a letter
from the Architect or the Engineer of Record stating that
the improvements contemplated by such Construction Phase or
Segment or Segments thereof (it being understood and agreed
that such improvements may consist, at a minimum, of only
the piles on which a foundation and facility might be
constructed at a later date), as described in the Plans and
Specifications therefor, if constructed in accordance with
the specifications set forth in such Plans and
Specifications, is designed, when aggregated with the
improvements contemplated by Phase One Construction, Phase
Two Construction and Phase Three Construction, to
accommodate the installation therein or thereon of seven
printing presses, EDC shall disburse to The Times, in
accordance with Sec.2.3 hereof, a portion of the Funding (in
addition to any amounts already disbursed in
-35-
accordance with Sec.2.2(a)(1), (2) and (3) above) in an
aggregate amount equal to $3,750,000.
(5) With respect to the aggregate of all of the Segments that
constitute Phase Five Construction, provided that prior to
or simultaneously with the first request for disbursement in
connection therewith, The Times delivers to EDC a letter
from the Architect or the Engineer of Record stating that
the improvements contemplated by such Construction Phase or
Segment or Segments thereof (it being understood and agreed
that such improvements may consist, at a minimum, of only
the piles on which a foundation and facility might be
constructed at a later date), as described in the Plans and
Specifications therefor, if constructed in accordance with
the specifications set forth in such Plans and
Specifications, is designed, when aggregated with the
improvements contemplated by Phase One Construction, Phase
Two Construction, Phase Three Construction and Phase Four
Construction, to accommodate the installation therein or
thereon of eight printing presses, EDC shall disburse to The
Times, in accordance with Sec.2.3 hereof, a portion of the
Funding (in addition to any amounts already disbursed in
accordance with Sec.2.2(a)(1), (2), (3) and (4) above) in an
aggregate amount equal to $3,750,000.
(b) If The Times elects to construct more than one Construction Phase
simultaneously and/or sequentially, and/or elects to construct only one or
more Segment
-36-
or Segments of one or more Construction Phases, without regard to whether such
Segment or Segments are constructed in a sequence contemplated by Phase Two
Construction, Phase Three Construction, Phase Four Construction and Phase Five
Construction, then provided that (i) EDC has approved the Plans and
Specifications for each such Construction Phase (or the Plans and
Specifications for the Aggregated Construction Phase or Segment or Segments
thereof which is to be constructed) in accordance with Sec.1.1 hereof, (ii)
The Times has filed such Plans and Specifications with the Buildings
Department, (iii) with respect to the Funding allocable to Phase One Construc-
tion, The Times has demonstrated to EDC's reasonable satisfaction in accordance
with Sec.2.2(a)(1) hereof the purchase or contract to purchase of the printing
presses specified in Sec.2.2(a)(1) hereof and with respect to the Funding
allocable to Phase Two Construction, Phase Three Construction, Phase Four
Construction and Phase Five Construction or any Segment or Segments thereof,
The Times has delivered to EDC the letter from the Architect or Engineer of
Record specified in Sec.2.2(a)(2), (3), (4) and (5) hereof, and (iv) the
Segment to be constructed is related to a Construction Phase that is not more
than two subsequent construction phases away from the last Construction Phase
that is to be constructed in its entirety, EDC shall disburse to The Times,
in accordance with Sec.2.3 hereof, the portion of the Funding equal to the
aggregate of the amounts allocated to each Construction Phase as set forth in
Sec.2.2(a) hereof. Thus, for example, if The Times elected to perform all
of the Construction Work included in Phase One Construction, Phase Two
Construction, Phase Three Construction, Phase Four Construction and Phase
Five Construction at the time that it constructed the Minimum Printing
Facility, all of the Funding payable in connection with such Construction
Work
-37-
would be disbursed to The Times in accordance with Sec.2.3 hereof as and when
such Construction Work was performed. If, however, The Times elects to
perform the Construction Work included in Phase One Construction and the
Segment of the Construction Work identified as the driving of piles for a
foundation and/or foundation work included in Phase Two Construction, Phase
Three Construction, Phase Four Construction and Phase Five Construction, only
the Funding payable in connection with the Construction Work included in Phase
One Construction and the Segment of the Phase Two Construction and Phase Three
Construction would be disbursed to The Times. Funding for the Construction
Work included in the Segments of the Phase Four Construction and Phase Five
Construction would be disbursed to The Times only at such time as The Times
completed all of the Construction Work included in Phase Two Construction with
respect to the Segments of Phase Four Construction, and in Phase Three
Construction with respect to the Segments of Phase Five Construction (e.g. The
Times would not be reimbursed for driving piles for a Seven Press Facility
unless either (i) it was at the same time constructing at least the entire
Five Press Facility or (ii) it constructed at least the entire Five Press
Facility at a later date, in which case The Times would be reimbursed for such
Construction Work at such later date on which the entire Five Press Facility
was constructed).
(c) (i) The Times acknowledges and agrees that, notwithstanding
anything to the contrary contained in Sec.2.2(a) or Sec.2.2(b) above, the amount
of Funding to be disbursed to The Times with respect to each Construction Phase
as described in Sec.2.2(a) above, is based on the expectation that in connection
with the construction of each Construction Phase, The Times will construct a
Printing Facility containing a certain target aggregate square footage
-38-
for either (x) the footprint of such facility (the "Target Footprint") or (y)
the building size of such facility (the "Target Building Size"). The Target
Footprint and Target Building Size for each Construction Phase (on an
aggregated basis, as applicable) is as follows:
Printing Facility Target Footprint Target Building Size
- ----------------- ---------------- --------------------
Minimum Printing Facility 220,000 360,000
Five Press Facility 282,000 465,000
Six Press Facility 345,000 570,000
Seven Press Facility 392,000 645,000
Eight Press Facility 440,000 720,000
The Target Footprint for a Printing Facility shall be relevant only if
The Times seeks disbursement of Funding in connection with such Printing
Facility for piling and/or foundation work without simultaneously constructing
such Printing Facility. The Target Building Size for a Printing Facility
shall be relevant only if The Times seeks disbursement of Funding in
connection with such Printing Facility if it is constructing such Printing
Facility promptly following the driving of piles and construction of the
foundation in connection therewith.
If the actual footprint or the actual building size, whichever is
relevant pursuant to the immediately preceding paragraph, related to any
Construction Phase for any Segment of any Construction Phase is more than ten
percent (10%) less than the Target Footprint or the Target Building Size, as
the case may be, allocable to such Construction Phase, as evidenced by the
Plans and Specifications submitted by The Times to the Buildings Department
with respect to such Construction Phase or Segment thereof, the amount of the
Funding to be disbursed by EDC to The Times with respect to such Construction
Phase or Segment thereof
-39-
will be reduced by an amount equal to (i) the total percentage amount by which
the square footage of the footprint of the Printing Facility or the size of the
Printing Facility related to such Construction Phase, whichever is relevant
pursuant to the terms hereof, is less than the Target Footprint or the
Target Building Size for such Construction Phase, as the case may be, minus
(ii) ten percent (10%). Thus, for example, if The Times constructs a
Minimum Printing Facility consisting of a building size of 324,000 square
feet or more, EDC will disburse to The Times for the Eligible Costs incurred
in connection therewith, up to the full $3,000,000 (or $4,000,000, if
applicable) in Funding as provided in Sec.2.2(a)(1) hereof. If, at the same
time that The Times constructs the Minimum Printing Facility, it also
drives piles for the Six Press Facility, but does not at the
same time construct the Six Press Facility, and the piles driven
for the Six Press Facility are sufficient to accommodate a footprint
which, when aggregated with the footprint for the Minimum Printing
Facility, is 317,400 square feet (eight percent (8%) less than the 345,000
Target Footprint for the Six Press Facility), EDC will disburse to The Times
in connection with Eligible Costs therefor, Funding in an amount equal to (i)
$3,000,000 (or $4,000,000, if applicable) for the construction of the Minimum
Printing Facility, and (ii) $4,500,000 (the sum of $2,250,000 allocated to the
Five Press Facility and $2,250,000 allocated to the Six Press Facility). If,
however, The Times drives piles for, and at the same time constructs, the Six
Press Facility and the total square footage of the Six Press Facility, when
aggregated with the square footage of the Minimum Printing Facility, is
484,000 square feet (fifteen percent (15%) less than the 570,000 Target
Building Size for the Six Press Facility), the $4,500,000 Funding allocable to
the Five Press Facility and the Six Press Facility will be reduced by five
-40-
percent (5%) to $4,275,000.
(ii) The Parties further acknowledges and agrees that the portion of the
Funding allocated to any Construction Phase, once reduced in accordance with
Sec.2.2(c)(i) above, will never be increased or further reduced. Thus, if The
Times constructs a Minimum Printing Facility and at the same time drives piles
for the Six Press Facility sufficient to accommodate a footprint which, when
aggregated with the footprint for the Minimum Printing Facility, is 276,000
square feet (twenty percent (20%) less than the 345,000 Target Footprint for
the Six Press Facility), the $4,500,000 Funding allocable to the Five Press
Facility and the Six Press Facility will be reduced by ten percent (10%) to
$4,050,000. If, several years later, The Times constructs the Six Press
Facility and the total square footage of the Six Press Facility,
when aggregated with the square footage of the Minimum Printing
Facility, is 570,000 square feet (the Target Building Size for the
Six Press Facility), The Times will not be entitled to, and EDC will not be
required to disburse to The Times, the difference between the $4,500,000
originally allocated to The Times with respect to the Five Press Facility and
the Six Press Facility and the reduced amount of $4,050,000. If the Times
constructs a Minimum Printing Facility and at the same time drives piles for
the Six Press Facility sufficient to accommodate a footprint which, when
aggregated with the footprint for the Minimum Printing Facility, is 345,000
square feet (the Target Footprint for the Six Press Facility) and EDC
disbursed to The Times in connection therewith the $3,000,000 (or $4,000,000,
if applicable) Funding allocable to the Minimum Printing Facility and the
$4,500,000 Funding allocable to the Five Press Facility and the Six Press
Facility, and at a later date The Times constructs the Six Press Facility and
the total square footage of the Six
-41-
Press Facility is less than the Target Building Size for the Six Press
Facility, The Times will not be required to refund any portion of the
$4,500,000 Funding allocable to the Five Press Facility and the Six Press
Facility.
(iii) Notwithstanding anything to the contrary contained herein, except
as set forth in Sec.2.4 herein with respect to an abandonment of the Project,
The Times shall not be in default of this Agreement or otherwise be required to
reimburse any portion of the Funding previously disbursed to The Times in
accordance herewith, if The Times drives piles for any Printing Facility
larger than the Minimum Printing Facility and does not subsequently construct
such Printing Facility.
(d) Notwithstanding anything to the contrary contained herein, the
Parties acknowledge and agree that in the event that The Times elects to
reconstruct the Whitestone Road as provided in Funding Agreement #4, that
certain portion of the Funding allocated pursuant to Sec.2.2(a)(5) herein to
Phase Five Construction may be reallocated to Funding Agreement #4 to pay for
the eligible costs incurred by The Times in connection with the reconstruction
of the Whitestone Road. The actual amount of such portion of the Funding to
be so reallocated will be equal to the Total Reimbursement Amount (as such
term is defined in Funding Agreement #4), determined in accordance with
Sec.2.1(a) of Funding Agreement #4, provided that in no event shall such amount
be more than the $3,750,000 allocated hereunder to Phase Five Construction.
The Times agrees that it shall not have right to seek the reallocation to
Funding Agreement #4 of any portion of the Funding other than the portion of
the Funding allocated hereunder to Phase Five Construction, and that once the
reallocation of the Funding has occurred; (i) The Times shall have no further
right to seek any additional reallocation and (ii) any portion of the
-42-
$3,750,000 not reallocated to Funding Agreement #4 shall remain allocated to
Phase Five Construction.
Sec.2.3 Disbursements. (a) Subject to satisfaction of, and in accordance
--------------
with the terms and conditions of this Article Two, Article Four and Article
Five hereof, and provided that neither EDC nor the City shall have commenced
an action to terminate this Agreement or the Lease, as the case may be, due to
the existence of an uncured Event of Default under this Agreement or an
uncured "Event of Default" (as defined in the Lease) under the Lease, as the
case may be, EDC shall disburse the Funding to The Times after receipt by EDC
of all items required by Sec.4.2 hereof, in installments equal to, the amount of
the requested disbursement set forth in each Requisition, which amount shall
be equal to, as appropriate in each instance, either (A) the product of (i)
the schedule of values of the Eligible Costs for which disbursement is sought
and (ii) the percentage of the Construction Work indicated on such schedule of
values then completed (as certified by the Architect or the Engineer of
Record), less the sum of the following: (x) an amount equal to the retainage,
if any, retained by The Times or its Construction Manager or General
Contractor, as the case may be (the "Retainage"); (y) the total amount
previously disbursed by EDC hereunder with respect to such Eligible Costs, if
any; and (z) the total amount otherwise previously disbursed to The Times for
the Construction Work that at the time of the disbursement request was
ineligible for reimbursement with the Funding pursuant to any provision of
this Agreement, or (B) the product of (i) the quantities of materials
installed at the Premises and (ii) the unit price for such materials, less the
sum of the following: (x) an amount equal to the Retainage; (y) the total
amount previously disbursed by EDC hereunder with respect
-43-
to such materials, if any, and (z) the total amount otherwise previously
disbursed to The Times for such materials that at the time of the disbursement
request was ineligible for reimbursement with the Funding pursuant to any
provision of this Agreement; provided, however, that any amounts requested for
the payment of Site Preparation Work shall be requisitioned and disbursed in
accordance with (B) above only.
(b) All disbursements shall be made by check at the principal office of
EDC, or at such other place within the City of New York as EDC may designate.
Disbursement requests shall be submitted within the time periods and in the
manner provided therefor in Article 4.
(c) No portion of the Funding shall be advanced for materials not
incorporated into the Premises.
(d) Disbursements of the Funding shall be no more frequent than once
every thirty (30) days and shall be made within ten (10) Business Days after
the date EDC receives from The Times a complete disbursement request,
reasonably satisfactory to EDC, together with the Requisition and all such
other documentation, as may be reasonably required or requested by EDC in
support of such Requisition. Notwithstanding anything to the contrary
contained herein, The Times shall not submit the first Requisition prior to
the Construction Commencement Date and shall not submit any Requisition for
the disbursement of funds related to a particular Construction Phase unless
The Times has commenced, or has caused the commencement of, the driving of
piles for the foundation related to such Construction Phase.
-44-
Sec.2.4 The Times's Abandonment of the Project. (a) Notwithstanding
------------------------------------------
anything to the contrary contained herein, if, at any time during the Term,
The Times "abandons the Project" as such phrase is described in clauses (i)
through (iv) of Sec.2.4(c) hereof, EDC shall have the right to terminate this
Agreement and cease all further disbursements of the Funding, and The Times
shall reimburse EDC dollar for dollar for the Funding or any portion thereof
disbursed by EDC prior to the date of such abandonment substantially in
accordance with the illustration for such reimbursement set forth in the
"Reimbursement Schedule" attached hereto as Appendix C and hereby 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 The Times until The Times fully
reimburses EDC for such funds (the amount of Funding to be reimbursed to EDC
in accordance with the foregoing sentence, together with the interest accrued
thereon, is referred to as the "Reimbursement Amount"). Notwithstanding
anything to the contrary contained herein, if The Times "abandons" the Project
as such phrase is described in clause (v) of Sec.2.4(c) hereof, EDC shall have
the right to terminate this Agreement and cease all further disbursements of
the Funding, and The Times shall reimburse EDC in an amount equal to the
Funding or any portion thereof disbursed by EDC prior to the date of such
abandonment amortized over time substantially in accordance with the
illustration for such amortization set forth in the "Amortized Reimbursement
Schedule" attached hereto as Appendix C-1 and hereby made a part hereof,
including interest thereon at the rate of (i) 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 The Times until The Times fully
-45-
reimburses EDC for such funds (the amount of Funding to be reimbursed to EDC
in accordance with the foregoing sentence, together with the interest accrued
thereon, is referred to as the "Amortized Reimbursement Amount"). Unless The
Times elects to exercise its option to purchase the Premises in accordance
with Article 21 of the Lease (in which case The Times shall pay to EDC the
Reimbursement Amount or the Amortized Reimbursement Amount, as applicable,
prior to such purchase as more particularly set forth in Article 21 of the
Lease), The Times shall reimburse such funds to EDC (together with any
interest accrued thereon) in equal quarterly installments commencing on the
Abandonment Date and continuing thereafter for a period of five (5) years.
The Times 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), without penalty or premium.
(b) Intentionally omitted.
(c) For purposes hereof, The Times shall be deemed to have "abandoned"
the Project upon the occurrence of any of the following:
(i) The Times notifies EDC, in writing, that it intends to abandon the
Project as of the date specified in such notice, or
(ii) at any time during the period between the Commencement Date and
the Operational Date, The Times permanently relocates
substantially all of the jobs and/or functions directly related to
the printing, collating, bundling and distribution of the New York
--------
Times newspaper located, on the date of this Agreement, at The
-----
Times's 43rd Street facility (the "43rd Street Facility"), to
-46-
another facility outside of New York City, or
(iii) at any time after the Construction Commencement Date, The Times
fails to make reasonable and diligent efforts to construct the
Minimum Printing Facility to completion, and as a result of such
failure The Times shall not Substantially Complete construction of
the Minimum Printing Facility by the Scheduled Completion Date
(subject to Unavoidable Delays), and such failure continues for
thirty (30) days after written notice from the landlord under the
Lease and/or EDC, or
(iv) by the date (the "Outside Operation Date") which is five (5) years
after Substantial Completion of construction of the Minimum
Printing Facility, The Times shall have failed to equip such
Minimum Printing Facility with four printing presses and such
other equipment as is necessary to enable such Minimum Printing
Facility to be operational primarily for the printing, collating,
bundling and distribution of newspapers, magazines and other
periodicals or printed materials and to commence the operation of
such Minimum Printing Facility, or
(v) at any time after the date on which The Times commences the
operation of the Minimum Printing Facility for the printing,
collating, bundling and distribution of newspapers, magazines and
other periodicals or printed materials (the "Operational Date"),
The Times ceases such operation and, after a five (5) year period
(subject to Unavoidable Delays), fails to resume the operation of
such Minimum Printing Facility as a major printing facility
-47-
serving the New York City metropolitan area and such failure
continues for thirty (30) days after written notice from the
landlord under the lease and/or EDC.
The "Abandonment Date" shall be either, (I) the date specified in the
notice described in clause (i) above, (II) the date on which The Times
permanently relocates substantially all of the jobs and/or functions directly
related to the printing, collating bundling and distribution of the New York
--------
Times newspaper located at the 43rd Street Facility to another facility
- -----
outside of New York City, (III) the date which is thirty (30) days after the
notice described in clause (iii) above (provided, that prior to the expiration
of such thirty (30) day period, The Times has not commenced to cure the
failure described in such notice), (IV) the Outside Operational Date, or (V)
the date which is thirty (30) days after the notice described in clause (v)
above (provided, that prior to the expiration of such thirty (30) day period,
The Times has not commenced to cure the failure described in such notice).
(d) Notwithstanding anything to the contrary contained in this Sec.2.4,
The Times shall not be deemed to have "abandoned" the Project as defined in
Sec.2.4(c) above, if it assigns its interest in the Lease in accordance with the
provisions of the Lease and the assignee of such interest in the Lease
performs, or continues to perform, the obligations of The Times set forth in
the Lease with respect to the construction, equipping and operation of the
Minimum Printing Facility.
(e) The provisions of this Sec.2.4 shall survive the expiration or
termination of this Agreement.
-48-
ARTICLE THREE - TERM
--------------------
Sec.3.1 Term. The term of this Agreement (the "Term") shall commence upon
-----
the execution of this Agreement by both Parties and the unconditional delivery
of this Agreement by each Party to the other (the "Commencement Date") and
shall expire upon the earlier to occur of (i) the complete disbursement by EDC
of up to either (x) $15,000,000 of the Funding if The Times commenced the
Phase One Construction on or prior to the Fourth Anniversary Date or (y)
$16,000,000 of the Funding if The Times commenced the Phase One Construction
after the Fourth Anniversary Date, (ii) the Abandonment Date, (iii) the
expiration or earlier termination of the term of the Lease (including by
reason of The Times's exercise of its right to purchase the Premises in
accordance with Article 21 of the Lease), or (iv) the termination of this
Agreement as hereinafter provided.
-49-
ARTICLE FOUR - CONDITIONS FOR DISBURSEMENT
------------------------------------------
Sec.4.1 Initial Submissions by The Times. EDC shall not be obligated to
----------------------------------
disburse any of the Funding to The Times unless, at any time prior to or
simultaneously with the first request for disbursement of the Funding but no
later than ten (10) days prior to the date on which the first payment of the
Funding to be made pursuant to this Agreement with respect to each Segment,
Construction Phase or Aggregated Construction Phase is sought (except as
otherwise specified herein), EDC shall have received the following documents,
together with a cover sheet (a "Completed Cover Sheet") listing the items
submitted:
(a) if not previously submitted by The Times, certificates, in form
and substance reasonably satisfactory to EDC, evidencing the
insurance policies referred to in Appendix B, and in accordance
with the sections of Article 7 of the Lease that are in effect
during construction of any Segment, Construction Phase or
Aggregated Construction Phase, naming the City and EDC as
additional insureds, providing not less than thirty (30) days
notice of cancellation to the City and EDC; provided, however,
that EDC shall also have the right to review at the offices of The
Times, and make copies of, the originals of the policies evidenced
by such certificates, upon written request therefor;
(b) intentionally omitted;
(c) a legal opinion by counsel to, or general counsel of, The Times
(addressed to EDC), in the form annexed hereto as Exhibit A, to
the effect that (I) this Agreement is legal, valid and binding
upon and enforceable against The
-50-
Times in accordance with its terms (subject, as to enforceability,
to principles of equity and applicable bankruptcy, insolvency and
other laws affecting the rights of creditors generally), and (II)
The Times has been duly authorized to execute and deliver this
Agreement;
(d) copies of any then executed Construction Contract(s) (and any then
executed first level subcontracts entered into between the
Construction Manager or the General Contractor and a contractor
with respect to which The Times is seeking reimbursement) for the
performance of the Construction Work, containing all the
provisions required pursuant to Sec.1.2(c) hereof and trade payment
breakdown's and/or a schedule of values of Eligible Costs with
respect to which The Times is then seeking reimbursement;
(e) if not previously submitted by The Times, a set of the Plans and
Specifications with respect to the Segment, Construction Phase or
Aggregated Construction Phase then being constructed bearing the
stamp of the Architect or Engineer of Record;
(f) a collateral assignment by The Times to EDC of The Times' right,
title and interest to the Plans and Specifications for the
Segment, Construction Phase or Aggregated Construction Phase then
being constructed, subject to any commercially reasonable rights
or reservations reserved by the Architect or Engineer of Record
(it being understood that if EDC exercises its rights under such
collateral assignment, EDC shall, as of the date of such
assignment, assume all of the future obligations and liabilities
of The Times with respect
-51-
to such Plans and Specifications); and
(g) a certificate, in the form annexed hereto as Exhibit B, of an
authorized officer of The Times certifying the specimen signature
of each officer, director or agent of The Times authorized to
deliver Requisitions under this Agreement.
Sec.4.2 Documentation for Disbursements on Account of Eligible Costs. EDC
-------------------------------------------------------------
shall not be obligated to make the first disbursement of the Funding or any
subsequent disbursement with respect to each Segment, Construction Phase or
Aggregated Construction Phase unless, in addition to the conditions contained
in Sec.4.1, the following documents, in form and substance reasonably
satisfactory to EDC, together with a Completed Cover Sheet, shall, except to
the extent previously submitted by The Times, be delivered to EDC at least ten
(10) days in advance of the date on which each (except as otherwise indicated
in this Sec.4.2) payment is sought:
(i) copies of all Approvals necessary to lawfully perform the
Construction Work for which the Funding is being sought in
accordance with the Plans and Specifications;
(ii) a requisition executed and certified by an authorized
representative of The Times (and addressed to EDC), setting forth
(w) the amount of the requested disbursement, (x) a schedule of
values of the Eligible Costs for which the disbursement is sought
indicating the amount requested for each item for which
disbursement is sought, (y) a certification by such authorized
representative, that each item of Eligible Costs has not
previously been
-52-
reimbursed under this Agreement, and (z) a list of Contractors, and
subcontractors and material suppliers of such Contractors whose work is
covered by the requisition and whose total contract price exceeds $50,000,
indicating the amount requested with respect to each such Construction
Contract or subcontract. The requisition shall be accompanied by the
certification described in Sec.6.1 hereof and copies of (I) all Construction
Contracts (and first level, direct subcontracts of the Construction Manager or
General Contractor) on account of which payment is being sought that have not
been previously delivered, containing all the provisions required pursuant to
Sec.1.2(c) hereof and trade payment breakdowns and/or a schedule of values of
Eligible Costs with respect to such contract (or for Construction Contracts
and subcontracts that have been previously delivered, a statement to that
effect and copies of any amendments thereof); (II) a copy of an "Application
and Certificate for Payment", substantially in the forms annexed hereto as
Exhibit C, completed and executed by the Construction Manager or the General
Contractor (as the case may be), with respect to all work performed by
Contractor(s), subcontractors and material suppliers covered by The Times's
requisition, together with a statement of the Architect, Engineer of Record or
Construction Manager addressed to EDC that, to the Architect's,
-53-
Engineer of Record's or Construction Manager's knowledge, the Construction
Work performed by the Contractor, subcontractor and material suppliers covered
by the requisition (A) has been performed to the Architect's, Engineer of
Record's or Construction Manager's reasonable satisfaction substantially in
accordance with the Plans and Specifications and (B) has been performed in
accordance with the Requirements, and stipulating, in the Architect's,
Engineer of Record's or Construction Manager's professional opinion, the
percentage of the Construction Work that has been completed or, as the case
may be, the quantities of materials installed; (III) in connection with each
disbursement request other than the first disbursement request, partial
releases of liens from all Contractors (and first level, direct subcontractors
of the Construction Manager or General Contractor), in respect to Construction
Work completed under a Construction Contract or subcontract and for which the
Eligible Costs incurred in connection therewith have been reimbursed with the
Funding pursuant to a prior Requisition; and (IV) invoices from first level,
direct subcontractors of the Construction Manager or General Contractor in
support of the amount being requisitioned (the items described in this
paragraph (ii), collectively the "Requisition");
(iii) (A) in connection with the first such disbursement, a photostatic
copy of the current title report by a title insurer reasonably
satisfactory to EDC (EDC hereby acknowledging that Chicago Title
Insurance Company, First American Title Insurance Company, Ticor
Title Guarantee Company or any of their respective affiliates are
reasonably satisfactory title insurers) containing a description
of the Premises, and UCC, judgment and federal tax lien searches
against the Premises; (B) in connection with subsequent
disbursements, a
-54-
photostatic copy of a certificate of title continuation
indicating no change in the state of title and no survey
exceptions or liens in excess of $250,000 not contemplated by the
development of the Premises pursuant to this Agreement or
previously approved by EDC;
(iv) such additional documents, data or information reasonably
requested by EDC within ten (10) days after EDC's receipt of the
Requisition with respect to the Premises and the Construction Work
or in support of the Requisition that are customarily requested by
EDC when funding or paying for work similar to the Construction
Work and without which EDC could not reasonably be expected to
disburse the Funding prior to the receipt thereof; provided
however, that in no event shall EDC withhold or delay any portion
of the Funding to which such additional documents, data or
information do not apply; and
(v) with respect to each Contractor and each first level, direct
subcontractor of the Construction Manager or General Contractor
performing Construction Work for which Funding is being
requisitioned, a written statement by DLS certifying that such
Contractor or subcontractor has complied with the City's equal
employment requirements under mayoral Executive Order No. 50
(April 25, 1980), as amended, if applicable, or evidence from The
Times or DLS that Executive Order No. 50 or its successor does not
apply; it being understood that such written statement or other
satisfaction by DLS for such Contractor or subcontractor only
needs to be submitted at the time of the submission of the first
requisition covering such Contractor's or subcontractor's work and
-55-
that the noncompliance of any one such Contractor or subcontractor shall only
affect EDC's funding obligations relating to Construction Work performed by
such Contractor or subcontractor and shall not in any way affect EDC's funding
obligations with respect to Construction Work performed by other Contractors
or subcontractors in compliance, and it being further understood that,
notwithstanding anything to the contrary contained herein, for so long as New
York State Labor Law Sec.220 or any successor statute requires contractors
performing work on public works projects to pay journey-level wages to
trainees, the trainee requirements of Executive Order No. 50 shall not be
applicable to the Construction Work, the Contractors and the subcontractors
and the Contractors and the subcontractors shall in no event be deemed to be
in noncompliance with Executive Order No. 50 due to noncompliance with such
trainee requirements.
Sec.4.3 Direction of Submissions. All submissions to EDC pursuant to this
-------------------------
Article Four shall be directed to EDC's Vice President for Construction.
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ARTICLE FIVE
------------
REPRESENTATIONS, WARRANTIES AND GUARANTIES OF THE TIMES
-------------------------------------------------------
To induce EDC to disburse the Funding, The Times represents and warrants
as follows:
Sec.5.1 Organization; Standing. The Times is a corporation duly organized
-----------------------
and validly existing under the laws of the State of New York and has all
requisite power, authority and legal right to execute, deliver and perform its
obligations under this Agreement. A copy of The Times's certificate of good
standing from the Secretary of State of the State of New York is attached
hereto as Appendix D, and hereby made a part hereof.
Sec.5.2 Intentionally Omitted.
Sec.5.3 Conflict, etc. under Other Documents. The execution and delivery
--------------------------------------
of this Agreement by The Times is not, and the performance of this Agreement
by The Times will not be, effectively prohibited or prevented by, or in breach
of (i) the certificate of incorporation or by-laws of The Times, (ii) to the
best of The Times's knowledge, any presently existing or effective law,
judgment, order, writ, injunction, decree, rule or regulation of any court or
Governmental Authority applicable to The Times, or (iii) any agreement,
instrument or undertaking which is binding on The Times.
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Sec.5.4 No Litigation. As of the date of this Agreement there are no
--------------
suits or proceedings pending or, to the best of The Times's knowledge,
threatened against The Times which would materially affect the development and
improvement of the Premises, the consummation of the transactions contemplated
by this Agreement, or the full performance of the obligations of The Times
under this Agreement.
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ARTICLE FIVE-A - REPRESENTATIONS AND WARRANTIES OF EDC
------------------------------------------------------
To induce The Times to enter into this Agreement and perform the
Construction Work, EDC represents and warrants as follows:
Sec.5A.1 Organization; Standing. EDC is a not-for-profit corporation,
------------------------
organized pursuant to Sec.1411 of the New York State Not-For-Profit Corporation
Laws and has all the requisite power, authority and legal right to execute,
deliver and perform its obligations under this Agreement.
Sec.5A.2 Due Authorization; Enforceable Obligations. This Agreement has
--------------------------------------------
been duly authorized, executed and delivered by EDC and constitutes a legally
binding obligation of EDC enforceable in accordance with its terms. A legal
opinion by general counsel of EDC (addressed to The Times) providing that this
Agreement is legal, valid and binding upon and enforceable against EDC in
accordance with its terms (subject, as to enforceability, to principles of
equity and applicable bankruptcy, insolvency and other laws affecting the
rights of creditors generally), is attached hereto as Appendix E and hereby
made a part hereof. A certificate of the Secretary of EDC, dated as of the
date of this Agreement, certifying to the adoption of resolutions by the Board
of Directors of EDC authorizing the execution and delivery of this Agreement
by EDC is attached hereto as Appendix F and hereby made a part hereof.
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ARTICLE SIX
-----------
COVENANTS
---------
Sec.6.1 Requisitions Update The Times's Representations. The Times
-------------------------------------------------
covenants that each Requisition presented to EDC under Article Four shall be
accompanied by a completed certification, in the form attached hereto as
Exhibit D.
Sec.6.2 Compliance with Other Agreements and Law; Legal Status. During the
-------------------------------------------------------
Term, The Times shall:
(a) comply with all of the terms, conditions and covenants now or in
the future binding upon or applicable to The Times under this Agreement; and
(b) do all things necessary to maintain and keep in full force and
effect its existence, rights and privileges under the laws of the State of New
York.
Sec.6.3 Maintenance of and Compliance with Insurance Requirements. If the
----------------------------------------------------------
Times elects to obtain and maintain commercial general liability insurance
written under a "wrap around" program for the entire Project, The Times shall
maintain or cause to be maintained at The Times's expense such insurance in
the amounts and in accordance with the applicable provisions, set forth in
Article 7 of the Lease. The Times shall comply with all of the applicable
provisions of such insurance policies. Nothing contained in this Sec.6.3 is
intended to confer any rights upon any third party.
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Sec.6.4 Maintenance of Office. The Times will maintain an office in the
----------------------
City of New York where notices with respect to this Agreement may be delivered
to it and inspections and audits in accordance with Sec.6.7 hereof may be
conducted.
Sec.6.5 Compliance with Applicable Law. (a) The Times shall include the
-------------------------------
following requirements, as applicable, in all Construction Contracts, and
shall require, or cause to be required, all subcontracts with respect to the
Construction Work to include the same requirements, so that the Contractor(s)
and any subcontractors and materials suppliers shall agree, in substance, with
respect to the Construction Work, the following:
(i) to comply with (1) the applicable provisions of City and New
York State equal employment and affirmative action laws
applicable to construction contractors, which are annexed to
and made a part of this Agreement as Appendix G (consisting
of "Construction Contract Rider" pursuant to mayoral
Executive Order No. 50, provided, however that the trainee
requirements set forth therein shall be inapplicable for so
long as New York State Labor Law Sec.220 or any successor
statute requires contractors performing work on public works
projects to pay journey-level wages to trainees), and the
filing of any required construction employment reports with
DLS on the forms annexed hereto as Appendix H, (2) New York
State Labor Law Sec.220-e, and (3) City Administrative Code
Sec.6-108;
(ii) to comply with the applicable provisions of the New York
City Noise
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Control Code (Administrative Code Sec.24-216, as amended, and
related regulations); and
(iii) to pay no less than prevailing wage rates and supplemental
benefits to laborers, workers and mechanics pursuant to
Sec.220(3) of the New York State Labor Law in accordance with
the currently scheduled rates, as amended from time to time.
(b) The Times shall use its good faith efforts to promptly, diligently
and continuously enforce the full and faithful compliance by the Contractors
with whom The Times enters into Construction Contracts with the provisions of
law referred to in Sec.6.5(a) hereof, and shall use its good faith efforts to
cause such Contractors to enforce such compliance by the subcontractors and
materials suppliers hired by such Contractors in connection with the
Construction Work.
Sec.6.6 Assignment. Without EDC's prior written consent, The Times shall
-----------
not assign this Agreement, except that The Times may assign this Agreement
without EDC's prior written consent to an Affiliate or to any assignee to
which The Times is permitted to assign its interest in the Lease pursuant to
the terms thereof; provided that such assignee performs, or continues to
perform, the obligations of The Times set forth in the Lease with respect to
the construction, equipping and operation of the Minimum Printing Facility and
does not "abandon" the Project, and further provided that (i) such Affiliate
or assignee assumes all the rights and obligations of The Times under this
Agreement, (ii) all the representations, warranties and covenants made by The
Times in this Agreement shall be similarly made by
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such Affiliate or assignee, and (iii) The Times provides to EDC a copy of the
executed written agreement evidencing such assignment and assumption.
Sec.6.7 Maintenance of Records. The Times agrees to maintain accurate,
-----------------------
readily auditable records and accounts with supporting documentation, in
accordance with sound accounting principles, of (i) all of the Eligible Costs,
(ii) all of its receipts and expenditures in connection with the Funding, and
(iii) all financial accounts and transactions maintained or undertaken in
connection with this Agreement as it relates to Eligible Costs. The Times
shall make such records available for inspection and audit at The Times's
place of business within New York City by EDC and the City at reasonable times
and upon reasonable advance notice. All such records and accounts shall be
maintained for a period of six years after the completion of the Construction
Phase to which such records and accounts apply. The provisions of this Sec.6.7
shall survive the expiration or earlier termination of this Agreement.
Sec.6.8 Intentionally omitted.
Sec.6.9 Due Application of Funding Proceeds. The Times shall receive and
------------------------------------
hold the proceeds of the Funding (including any insurance proceeds arising out
of any casualty affecting property purchased with the Funding prior to
substantial completion of any Segment, Construction Phase or Aggregated
Construction Phase) as a trust fund to be applied exclusively for the payment
of Eligible Costs (or reimbursement to The Times for
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the payment of Eligible Costs) in accordance with the terms of this Agreement
and, except for such insurance proceeds which are in excess of the amount
necessary to pay for materials, equipment or other property purchased or
reimbursed with the Funding prior to substantial completion of any Segment,
Construction Phase or Aggregated Construction Phase, shall not use any part of
the same for any other purpose.
Sec.6.10 Defects; Non-Conforming Work. The disbursement of any portion of
-----------------------------
the Funding shall not constitute a waiver of any default by The Times on
account of defective construction work in performance of the Construction Work
or deviation from the Plans and Specifications. No part of the Funding shall
be disbursed for the correction of non-conforming work.
Sec.6.11 Participation by Women and Minority Owned Businesses
----------------------------------------------------
(a) EDC is committed to maximizing meaningful participation by women-
owned business enterprises ("WBEs") and minority-owned business enterprises
("MBEs") (WBEs and MBEs collectively referred to as "W/MBEs") in its
contracting opportunities. In accordance therewith, The Times agrees to cause
to be awarded at least $4 million of the Project Work (the "Guaranteed W/MBE
Participation Dollar Value") to W/MBEs and to use its good faith efforts to
cause to be awarded an additional $6 million of the Project Work (the "Good
Faith W/MBE Participation Dollar Value") to W/MBEs. The Project Work with
respect to which the Guaranteed W/MBE Participation Dollar Value is fulfilled
and to which good faith efforts are used to fulfill the Good Faith W/MBE
Participation
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Dollar Value may or may not, in the sole discretion of The Times, include all
or any portion of the Construction Work.
(b) In order to achieve the Guaranteed W/MBE Participation Dollar
Value and to use good faith efforts to achieve the Good Faith W/MBE
Participation Dollar Value, The Times will (subject to its right described in
Sec.6.11(c)(iii) below to utilize alternative methods to achieve the Guaranteed
W/MBE Participation Dollar Value and to use good faith efforts to achieve the
Good Faith W/MBE Participation Dollars Value) instruct its Construction
Manager (or its Contractors, as the case may be) to identify, and cause its
subcontractors and material suppliers to the extent reasonably feasible to
identify, (i) those portions or aspects of the Project Work that such
Construction Manager (or Contractors, or their subcontractors or material
suppliers) intends to competitively bid and with respect to which the
Construction Manager (or Contractors, or their subcontractors or material
suppliers) believes there are available, locally, W/MBEs that are equally or
substantially equally qualified or acceptable to perform such portions or
aspects of the Project Work as are the non-W/MBE contractors, subcontractors
or material suppliers that such Construction Manager (or Contractor, or its
subcontractors or material suppliers) intends to include on its bid list for
such portions or aspects of the Project Work, and (ii) one or more W/MBEs that
the Construction Manager (or Contractors, or their subcontractors or material
suppliers) believe are available locally and that are equally or substantially
equally qualified or acceptable to perform the portions or aspects of the
Project Work that are identified in accordance with (i) above. The Times will
(subject to its right described in Sec.6.11(c)(iii) below to utilize alternative
methods to achieve the Guaranteed W/MBE Participation
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Dollar Value and to use good faith efforts to achieve the Good Faith W/MBE
Participation Dollar Value) further instruct its Construction Manager (or
Contractors) to include, or cause its subcontractors and material suppliers to
the extent reasonably feasible to include, at least one such W/MBE on each bid
list for each such portion or aspect of the Project Work that the Construction
Manager (or Contractors, or their subcontractors or material suppliers)
intends to competitively bid with respect to which there are such equally or
substantially equally qualified or acceptable W/MBEs. Once a quarter,
commencing with the three (3) month anniversary of the date The Times
commenced construction of any Segment, Construction Phase or Aggregated
Construction Phase of the Project and every three (3) months thereafter until
both the Guaranteed W/MBE Participation Dollar Value and the Good Faith W/MBE
Participation Dollar Value have been achieved, The Times shall provide EDC
with a status report (the "W/MBE Report") as to (x) the dollar value of
contracts with respect to the Project Work theretofore awarded to W/MBEs, the
identities of such W/MBEs with a trade breakdown, and a statement as to
whether each such W/MBE was the lowest bidder, and (y) the identities of all
W/MBEs theretofore included in bid lists with respect to the Project Work who
were not selected, with a trade breakdown, and a statement as to whether each
such W/MBE was the lowest bidder. Notwithstanding anything to the contrary
contained herein, The Times's failure to provide EDC with the W/MBE Report
shall not constitute a material default the occurrence of which would give EDC
the right to terminate this Agreement in accordance with Sec.7.1(c) hereof
unless such failure continues after receipt of written notice from EDC
requesting that The Times provide the W/MBE Report within ten (10) days of such
notice, in which event EDC may
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give the twenty (20) Business Day notice required by Sec.7.1(c) to establish
that an Event of Default has occurred.
(c) Nothing contained in this Sec.6.11 shall be construed to (i) require
The Times or its Construction Manager (or Contractors, or their subcontractors
or material suppliers) to select a W/MBE that is not the lowest bidder (except
to the extent that they may elect to do so, in their sole discretion, in order
to achieve the Guaranteed W/MBE Participation Dollar Value), (ii) require The
Times or its Construction Manager (or Contractors, or their subcontractors or
material suppliers) to solicit bids with respect to all portions or aspects of
the Project Work, (iii) prevent The Times from utilizing alternative methods
to achieve the Guaranteed W/MBE Participation Dollar Value and to use good
faith efforts to achieve the Good Faith W/MBE Participation Dollar Value;
provided, however, that The Times shall provide EDC with reasonable advance
notice of its decision to utilize alternative methods and a reasonable
opportunity to comment on, and/or consult with, The Times as to the
characteristics of such alternative methods, or (iv) require The Times or its
Construction Manager (or Contractors, or their subcontractors or material
suppliers) to continue to utilize any of the procedures set forth in Sec.6.11(b)
above, or any other procedure adopted by The Times in accordance with clause
(iii) above, to maximize participation by W/MBEs after such time as The Times
has achieved both the Guaranteed W/MBE Participation Dollar Value and the Good
Faith W/MBE Participation Dollar Value. In the event that the number of
W/MBEs submitting lowest bids are insufficient to achieve the Guaranteed W/MBE
Participation Dollar Value, The Times shall nonetheless achieve the
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Guaranteed W/MBE Participation Dollar Value by means selected by The Times in
its sole discretion, which means may, but shall not be required to, include
selecting W/MBEs that do not submit the lowest bids.
(d) In order to be considered W/MBEs for purposes hereof, WBEs and
MBEs must have received certification, as WBEs and/or MBEs, from the New York
City Department of Business Services ("DBS"). Businesses that have been
certified as being women or minority owned by the New York State Department of
Economic Development or the Port Authority of New York and New Jersey may be
eligible to receive expedited certification from DBS, after completing the DBS
"Expedited Certification Affidavit" in the form of Exhibit E attached hereto.
Each of these entities maintain current lists of certified W/MBEs. The Times
is encouraged to contact these entities in order to obtain copies of their
current lists of certified W/MBEs who may be qualified to participate, either
as Contractors, subcontractors or materials suppliers, in the Project Work.
In the event that EDC is unable to verify that one or more of the W/MBEs
included in the W/MBE Report has been certified as a WBE or MBE by DBS, The
Times shall submit verification acceptable to EDC showing that all W/MBEs
identified in the W/MBE Report are certified as WBEs and/or MBEs by DBS.
(e) The Times shall provide for the participation of W/MBEs in the
Project Work at a level at least equal to the Guaranteed W/MBE Participation
Dollar Value. Both the Guaranteed W/MBE Participation Dollar Value and the
Good Faith W/MBE Participation Dollar Value are a part of this Agreement. The
Times cannot reduce the Guaranteed W/MBE Participation Dollar Value or the
Good Faith W/MBE Participation Dollar Value.
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Sec.6.12 No Liens. The Times will cause the Project to be constructed
---------
free and clear of liens of mechanics, material persons and suppliers,
including public improvement liens, or claims for any such liens in excess of
$250,000 subject to The Times's right to cause any such lien to be removed or
bonded within sixty (60) days after the placement of such lien.
Sec.6.13 Intentionally omitted.
Sec.6.14 Intentionally omitted.
Sec.6.15 Intentionally omitted.
Sec.6.16 MacBride Principles. The Times hereby agrees that with respect
---------------------
to any Construction Contract entered into for the performance of the
Construction Work and for which The Times intends to, or does in fact, seek
reimbursement therefor with the Funding, The Times shall (i) include in such
Construction Contract the requirements of the MacBride Principles Rider,
attached hereto as Appendix J, and (ii) require its Contractors (A) to comply
with the applicable covenants and representations set forth in Appendix J, and
(B) to cause its contractors, subcontractors, and materials suppliers
performing work pursuant to Construction Contracts receiving Funding, to also
comply with the requirements of Appendix J. Notwithstanding anything to the
contrary contained herein, the provisions of this Sec.6.16 shall not apply to
any contractor, subcontractor or materials supplier with respect to which there
is not another contractor, subcontractor or materials supplier to perform
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work or supply materials of comparable quality at a comparable price.
Sec.6.17 No Waiver of Compliance. The disbursement by EDC of any portion
------------------------
of the Funding to The Times shall not constitute a waiver of EDC's right to
require compliance with any of the covenants contained in this Article Six or
otherwise contained in this Agreement.
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ARTICLE SEVEN - DEFAULT
-----------------------
Sec.7.1 Events of Default. An "Event of Default" shall exist if any of
------------------
the following shall have occurred:
(a) intentionally omitted.
(b) if The Times shall have applied the Funding in violation of the
covenant set forth in Sec.6.9 and such misapplication was not corrected within
ten (10) Business Days after receipt of written notice thereof; or
(c) if The Times fails to duly observe or perform any of the material
covenants and agreements contained in this Agreement (other than the covenants
contained in Sec.6.9) and if such failure continues for twenty (20) Business
Days after receipt of written notice to The Times by EDC specifying with
particularity such material default and requiring such material default to be
remedied; provided, however, that if because of Unavoidable Delays or if the
nature of the default is such that The Times cannot reasonably be expected to
cure the same within such period, then such material default shall not be an
Event of Default if, within such period (subject to Unavoidable Delays), The
Times commences in good faith to cure such material default and (subject to
Unavoidable Delays) diligently prosecutes such cure to completion; or
(d) if an "Event of Default" (as defined in the Lease) has occurred
under the Lease and EDC has taken action to terminate the Lease in accordance
with the terms thereof; or
(e) if any representation or warranty by The Times contained in this
Agreement
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shall be materially false when made or reaffirmed and such representation or
warranty materially adversely affects The Times's ability to enter into this
Agreement and perform the Project Work in accordance with the terms hereof.
Sec.7.2 Default Remedies; Exculpation.
------------------------------
(a) Except as otherwise set forth in Sec.7.2(d)(ii) and Sec.9.11 hereof,
The Times Indemnitees shall not be liable for consequential damages under this
Agreement.
(b) Upon an Event of Default, EDC may exercise any right or remedy
permitted to it by law, in equity, or under this Agreement, including, without
limitation, the right to obtain restitution of any portion of the Funding
which is applied by The Times, The Times's employees, agents or contractors in
violation of Sec.6.9, with interest from the date of EDC's disbursement at the
Late Charge Rate. Without limiting the generality of the foregoing, upon an
Event of Default, EDC shall have the right to elect to terminate this
Agreement (reserving, however, all remedies provided in this Article Seven or
existing otherwise) or, with respect to an Event of Default described in
Sec.7.1(b) or (d) above, to make no further disbursements until such Event of
Default is remedied or determined not to be an Event of Default. With respect
to an Event of Default described in Sec.7.1(c) above, EDC shall have the right
to elect to terminate this Agreement or to make no further disbursements until
such Event of Default is remedied: provided, however, that in the event that
The Times disputes EDC's determination that an Event of Default described in
Sec.7.1(c) above has occurred, The Times shall have the right to submit such
dispute to arbitration in accordance
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with the provisions of Article 34 of the Lease and if the arbitrator decides
that no Event of Default as described in Sec.7.1(c) above has occurred, EDC
shall immediately disburse to The Times all of the Funding that, under the terms
of this Agreement, should have been disbursed to The Times during the period of
the dispute with interest at the Short Term Late Charge Rate and recommence
the further disbursement of the Funding, as appropriate.
(c) Subject to the provisions of Sec.7.2(d) hereof, the liability of The
Times under this Agreement for damages or otherwise shall be limited to (i)
The Times's interest in any sums advanced hereunder but not heretofore
expended by it and (ii) the proceeds of any insurance policies covering or
relating to the Construction Work or the Premises (to the extent of the
Funding advanced under this Agreement and actually received by The Times). In
no event shall EDC look to the property or assets of any of the individuals
who are the directors, officers, employees, shareholders, agents or servants
of The Times, and no property or assets of any of the aforesaid Persons shall
be subject to levy, execution or other enforcement procedure for the
satisfaction of The Times's obligations under this Agreement, except in the
event such individual has misapplied the Funding as described in Sec.7.2(d)
hereof and then only to the extent of the actual dollar amount that such
individual has misapplied the Funding; provided, however, that if such
misapplication was the result of such individual's fraudulent conduct, such
individual's liability shall be as set forth in Sec.7.2(d)(i) below.
(d) (i) Each of the individuals described in Sec.7.2(b) above shall be
personally liable (as distinguished from collective liability), to the full
extent provided by law, in equity,
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and by this Agreement if any such relevant individual shall have applied the
Funding in violation of the covenant contained in Sec.6.9 of this Agreement and
such misapplication was not corrected within ten (10) Business Days of notice
thereof; provided, however, that such liability shall be limited to the actual
dollar amount that was misapplied unless the misapplication was the result of
fraudulent conduct, in which case such liability shall not be limited as
provided above.
(ii) The Times shall be liable, to the full extent provided by
law, in equity, and by this Agreement if The Times shall have applied the
Funding in violation of the covenant contained in Sec.6.9 of this Agreement and
such misapplication was not corrected within ten (10) Business Days of notice
thereof; provided, however, that such liability shall be limited to the actual
dollar amount that was misapplied unless the misapplication was the result of
fraudulent conduct on the part of The Times as opposed to the fraudulent
conduct of an individual not authorized by The Times to act in such a manner,
in which case such liability shall not be limited as provided above.
(e) No course of dealing on the part of EDC or any failure on the part
of EDC to exercise any right shall operate as a waiver of such right or
otherwise prejudice EDC's remedies. No right or remedy conferred upon or
reserved to EDC is intended to be exclusive of any other right or remedy.
Every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy contained in this Agreement or
existing at any time at law or in equity, or otherwise, and may be exercised
from time to time and as often and in such order as EDC may deem appropriate.
-74-
The exercise of any right or remedy shall not be construed as an election or a
waiver of any other right or remedy. No delay or omission of EDC in
exercising any right or remedy occurring upon an Event of Default shall impair
any such right or remedy or constitute a waiver of or acquiescence in such
Event of Default.
(f) The provisions of this Sec.7.2 shall survive the expiration or
termination of the Term.
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ARTICLE EIGHT - NOTICES
-----------------------
Sec.8.1 Notices. All notices under this Agreement shall be in writing and
--------
shall be deemed to have been sufficiently given or served for all purposes as
of the date when sent by hand, or by national overnight courier service, or by
certified or registered mail, return receipt requested, addressed as follows
(or to such other addresses as may from time to time be designated by EDC or
The Times by notice delivered to the other in accordance with this Section):
(i) if to EDC:
New York City Economic Development Corporation
110 William Street
New York, N.Y. 10038
Attention: President
with a copy via ordinary mail to General Counsel, at the
same address
and to:
New York City Law Department
100 Church Street
New York, New York 10007
Attention: Chief, Economic Development Division;
(ii) if to The Times:
The New York Times Company
229 West 43rd Street
New York, New York 10036
Attention: Solomon B. Watson, IV, Esq.
General Counsel
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with a copy via ordinary mail to David Thurm, Executive
Director of Project Development, at the same address
and with a copy in the same manner sent to The Times to:
Bachner, Tally, Polevoy & Misher
380 Madison Avenue
New York, New York 10017
Attention: Martin Polevoy, Esq.
Sec.8.2 Disbursement Submissions. All Requisitions and other submissions
-------------------------
for disbursements required to be made pursuant to Article Four of this
Agreement shall be addressed as directed in Sec.4.3 hereof.
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ARTICLE NINE - GENERAL CONDITIONS AND COVENANTS
-----------------------------------------------
The following covenants and conditions shall be applicable throughout
the Term:
Sec.9.1 Conflict of Interests. No member, officer, director or employee
----------------------
of EDC or the City, or their designees, consultants or agents; no member of
the governing body of the City and no public official of the City who
exercises or exercised any functions or responsibilities with respect to the
subject matter of this Agreement during his/her tenure, if known to The Times,
shall have any interest, direct or indirect, in any contract or subcontract,
or the proceeds thereof, for work to be performed in connection with the
Construction Work or in any activity or benefit arising out of or in
connection with the performance of the Construction Work. Upon receiving
actual notice or knowledge of any of the circumstances specified in the
preceding sentence, The Times shall deliver notice to EDC of the circumstances
and immediately shall use good faith efforts to cause the Persons affected to
terminate their interest in the prohibited contract or property. The Times
shall require the Construction Manager or General Contractor (as the case may
be) and the Contractors, subcontractors and materials suppliers to make
appropriate representations in writing that they, their employees and
principals do not have any conflict of interest prohibited under this Sec.9.1,
and to covenant to use good faith efforts to cause the prohibited persons to
terminate their interest in the relevant contract or property upon demand by
The Times.
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Sec.9.2 No Liability of Individuals. No officer, employee, director,
-----------------------------
member, agent or other person authorized to act on behalf of EDC or the City
shall have any personal liability in connection with this Agreement or any
default by EDC or the City.
Sec.9.3 Anti-Boycott Provisions.
------------------------
The Times hereby covenants and agrees that, to the extent applicable to
the Construction Work:
(a) The Times is not participating, nor shall it participate during the
Term, in an international boycott in violation of the provisions of the Export
Administration Act of 1979, as amended, or the regulations promulgated
thereunder,
(b) upon the final determination by the United States Department of
Commerce or any other agency of the United States as to conviction of The
Times for participation in an international boycott in violation of the
provisions of the Export Administration Act of 1979, as amended, or the
regulations promulgated thereunder, EDC may, at its option, declare a default
under this Agreement (which default is subject to cure by The Times in
accordance with the terms of this Agreement), and
(c) The Times shall comply in all respects with the provisions of
Sec.6-114 of the Administrative Code of the City and the rules and regulations
issued by the Comptroller of the City thereunder.
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Sec.9.4 Governing Law. The provisions of this Agreement shall be governed
--------------
and interpreted in accordance with the laws of the State of New York.
Sec.9.5 Liability of EDC. (a) Except as otherwise set forth in Sec.9.11(b)
-----------------
hereof, EDC shall not be liable for consequential damages under this Agreement
to The Times or to any other Person in any matter arising out of the
financing, development and construction of the Project.
(b) Notwithstanding any provision to the contrary contained in this
Agreement, if (i) EDC defaults in the disbursement of the Funding for which it
is obligated, pursuant to the terms of this Agreement, to disburse to The
Times or in the payment of any other monetary amount owed to The Times
pursuant to the provisions of this Agreement and fails to cure such default
within thirty (30) days after The Times delivers notice (the "EDC Default
Notice") to EDC of such default, or (ii) the Funding shall not be made
available to EDC by the City, in whole or in part for any reason, then,
provided that The Times proceeds with the construction of the Project or any
Construction Phase thereof, for each dollar not so disbursed or paid by EDC or
made available to EDC by the City, The Times shall have the right to (y)
offset against future Rental (other than Impositions) due under the Lease and
against College Point Improvement Fund Payments due under the Lease in an
amount equal to the Funding not so disbursed by EDC, and (z) offset against
future Rental (other than Impositions and College Point Improvement Fund
Payments) due under the Lease in an amount equal to any other monetary amount
which EDC is obligated to pay
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under this Agreement and has not so paid, until such time as EDC recommences
the disbursement of the Funding or pays such other monetary amount. The Times
agrees that the right to an offset against Rental (other than Impositions) and
College Point Improvement Fund Payments as hereinabove described is The
Times's sole remedy against EDC arising out of the failure of EDC to receive
the Funding from the City, except as otherwise provided in this Agreement.
(c) In the event that (i) EDC has defaulted in the performance of any
obligation on EDC's part to perform under this Agreement other than the
disbursement of the Funding, or (ii) EDC has defaulted in the disbursement of
the Funding and continues to be in default thereof after the receipt of the
EDC Default Notice and expiration of the thirty (30) day cure period provided
therein, The Times shall have all of its rights at law and in equity against
EDC.
(d) Except as otherwise provided in this Agreement; (i) no course of
dealing on the part of The Times or any failure on the part of The Times to
exercise any right shall operate as a waiver of such right or otherwise
prejudice The Times's remedies, (ii) no right or remedy conferred upon or
reserved to The Times is intended to be exclusive of any other right or
remedy, (iii) every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy contained in this
Agreement or existing at any time at law or in equity, or otherwise, and may
be exercised from time to time and as often and in such order as The Times may
deem appropriate, and (iv) the exercise of any right or remedy shall not be
construed as an election or a waiver of any
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other right or remedy. No delay or omission of The Times in exercising any
right or remedy occurring upon EDC's failure to disburse the Funding in
accordance with this Agreement or to otherwise perform its obligations in
accordance with the terms of this Agreement shall impair any such right or
remedy or constitute a waiver of or acquiescence in any such failure.
Sec.9.6 Amendments. This Agreement may not be amended, waived or
-----------
terminated orally, but only by an instrument in writing signed by both
parties.
Sec.9.7 Successors and Assigns. The provisions of this Agreement shall be
-----------------------
binding upon and shall inure to the benefit of EDC and The Times and their
respective successors and permitted assigns.
Sec.9.8 Assignment of Funds. Except as specifically provided in Sec.10.1
--------------------
hereof, The Times acknowledges that the City capital budget dollars which form
the Funding are not, and shall not be deemed to be, an assignment of any funds
received by EDC from the City. The Times confirms that any right to the
Funding arises exclusively under this Agreement.
Sec.9.9 Counterparts. This Agreement may be executed in one or more
-------------
counterparts which, when taken together, shall constitute one and the same
document.
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Sec.9.10 Interpretation. The provisions of the Lease incorporated by
---------------
reference into this Agreement are intended to supplement the other provisions
of this Agreement. In the event of any conflict between the Lease provisions
and the other provisions of this Agreement relating to the performance of the
Project Work, the provisions of the Lease shall control.
Sec.9.11 Indemnity. (a) In this Sec.9.11(a), EDC and the City, and their
----------
respective departments, offices, officers, members, directors, employees and
agents shall collectively be referred to as "the Public Parties". The Times
shall defend, indemnify and hold harmless the Public Parties, from and against
any and all claims, damages (including consequential damages awarded to third
parties against the Public Parties), judgments, liabilities and causes of
action whatsoever to which they may be subject arising out of the acts or
omissions of The Times, its contractors, subcontractors, agents, employees or
material suppliers, and any and all Persons, in connection with the
performance of the Project Work, or because of any negligence, fault or
default of The Times, its contractors, subcontractors, agents, employees or
material suppliers. The obligation of The Times to indemnify and hold
harmless the Public Parties shall include but not be limited to the payment of
any and all costs and reasonable legal fees as may be actually incurred by the
Public Parties. The termination of this Agreement shall not release The Times
from any liability to the Public Parties arising out of any act or omission of
The Times in connection with this Agreement.
(b) In this Sec.9.11(b), The Times and its officers, members, directors,
employees and agents shall collectively be referred to as "The Times
Indemnitees". EDC shall
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indemnify and hold harmless The Times Indemnitees from and against any and all
claims, damages (including consequential damages awarded to third parties
against The Times Indemnitees), judgments, liabilities and causes of action
whatsoever to which they may be subject to the extent caused as a result of
the negligence or misconduct of EDC or its agents or professional consultants
arising out of or in connection with EDC's or its agents' or professional
consultants' inspections of the Premises or uncovering of work in accordance
with Sec.1.1(e) hereof. The obligation of EDC to indemnify and hold harmless The
Times Indemnitees pursuant to this Sec.9.11(b) shall include, but not be limited
to, the payment of any and all costs and reasonable legal fees as may be
actually incurred by The Times Indemnitees in connection with any such claim,
damage, judgment, liability or causes of action. The termination of this
Agreement shall not release EDC from any liability to The Times Indemnitees
described in this Sec.9.11(b).
Sec.9.12 No Agency. Neither The Times nor any of its employees,
-----------
contractors or subcontractors is, shall be or shall represent that he, she or
it is an agent, servant or employee of EDC or the City by virtue of this
Agreement or by virtue of any approval, permit, license, grant, right or
authorization given by the EDC or the City or any of their officers, agents or
employees. The Times shall be solely responsible for the work, direction,
compensation and personal conduct of its officers, agents, employees and
subcontractors.
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Sec.9.13 Venue
-----
(a) Any and all claims asserted by or against EDC or by or against The
Times arising under this Agreement or related hereto shall be heard and
determined either in the courts of the United States ("Federal Courts")
located in the City or in the courts of the State of New York ("New York State
Courts") located in the City of New York. To effect this agreement and
intent, EDC and The Times agree and, where appropriate, shall require each
Contractor to agree, as follows:
(i) If either Party initiates any action against the other Party
in Federal Court or in New York State Court, service of
process may be made on The Times either in person, or by
registered or certified mail (return receipt requested)
addressed to the office of the General Counsel of The Times
at the address set forth in Article Eight of this Agreement,
or to such other address as The Times may provide to EDC in
writing, and service of process may be made on EDC, either
in person, or by registered or certified mail (return
receipt requested) addressed to EDC at its address as set
forth in Article Eight of this Agreement, or to such other
address as EDC may provide to The Times in writing.
(ii) With respect to any action between EDC and The Times in New
York State Court, each Party hereby expressly waives and
relinquishes any rights it might otherwise have (A) to move
to dismiss on grounds of forum non conveniens, (B) to remove
to Federal Court wholly outside
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New York City, and (C) to move for a change of venue to New
York State Court outside New York City.
(iii) With respect to any action between EDC and the Times in
Federal Court located in New York City, each Party expressly
waives and relinquishes any right it might otherwise have to
move to transfer the action to a Federal Court outside the
City of New York.
(iv) If either Party commences any action against the other Party
in a court located other than in the City and State of New
York, then, upon request of the Party against whom the
action is brought, the Party bringing the action, shall
either consent to a transfer of the action to a court of
competent jurisdiction located in the City and State of New
York or, if the court where the action is initially brought
will not or cannot transfer the action, then to dismiss such
action without prejudice, and may thereafter reinstitute the
action in a court of competent jurisdiction in New York
City.
Sec.9.14. Investigations; Cooperation.
----------------------------
(a) Definitions. As used in this Sec.9.14:
------------
(i) "Investigation" shall mean any investigation, audit or
inquiry conducted by the Department of Investigation with respect
to the obtaining and/or performance of Transaction Documents or
any of them,
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(ii) "Department of Investigation" shall mean the Department of
Investigation of the City or any City department or agency
succeeding to the functions thereof,
(iii) "Commissioner" shall mean the Commissioner or Acting
Commissioner of the Department of Investigation,
(iv) "Deputy Mayor" shall mean the Deputy Mayor for Finance and
Economic Development of the City (or the officer of the City
succeeding to the functions of that office),
(v) "Entity" shall mean 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 EDC or the City,
(vi) "Member" shall mean any Person associated with another
Person or entity as a partner, director, officer, principal or
employee, and
(vii) "Transaction Documents" shall mean the Lease, this
Agreement, Funding Agreement #2, Funding Agreement #3 and Funding
Agreement #4.
(b) Cooperation with Investigations. Subject to the exclusions set
---------------------------------
forth in paragraph (c) of this Sec.9.14, The Times shall during the term of this
Agreement:
(i) cooperate fully and faithfully, and utilize good faith
efforts to cause its Members to cooperate fully and
faithfully, with any Investigation; and
(ii) report, and utilize its good faith efforts to cause its
Members to report, in writing to the Commissioner, any
solicitation of which The Times
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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 any other Person, for
any purpose relating to the procurement or obtaining and/or
performance of any Transaction Document by The Times.
(c) Exclusions. The provisions of Sec.9.14(b) above shall not apply:
-----------
(i) to any information or document known, prepared or obtained
by The Times 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 related to the rights of reporters and/or news
organizations;
(ii) to any Person who refuses to testify based on his or her
privilege against self-incrimination after having been 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 Sec.9.14(b) to such
Person); and
(iii) to any construction contract or other agreement (or the
obtaining or
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performance thereof) with parties other than the City or
EDC, including without limitation, any contract or agreement
being funded through any Transaction Document.
(d) Hearing. If The Times or any Member of The Times refuses to
--------
testify in an Investigation and, in connection with such failure to testify,
the Commissioner determines that The Times has failed to cooperate in the
Investigation in violation of the provisions of Sec.9.14(b) hereof, then the
Commissioner may request the Deputy Mayor to convene a hearing (the
"Hearing"), upon not less than five (5) days written notice to The Times, to
determine if any penalties should be imposed for The Times's failure to so
cooperate in accordance with this Sec.9.14.
(e) Adjournments of Hearing
-----------------------
(i) The Times shall have the right to require that the Hearing
be adjourned for a period of not more than thirty (30) days.
(ii) The Deputy Mayor may grant other adjournments of the
Hearing, in the exercise of his or her reasonable
discretion; provided however, that in the case of an
adjournment occasioned by The Times's failure to appear, the
Deputy Mayor may, if he or she determines that there was no
reasonable cause for the requested adjournment or failure to
appear, impose an Interim Penalty.
(iii) The City shall not incur any penalty or damages for delay or
otherwise occasioned by an adjournment of the Hearing.
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(f) Penalties.
----------
(i) The Deputy Mayor may impose a penalty during an adjournment
due to The Times's failure to appear or proceed with the
scheduled Hearing pursuant to Sec.9.14(d)(ii) hereof ("Interim
Penalty") of not more than $1,000 per day for each day of
such adjournment, provided, however, that such daily
penalties shall cease to accrue from and after the date that
The Times 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 to continue the Hearing and reach a
determination without The Times's participation.
(ii) If, after the Hearing, the Deputy Mayor determines that The
Times failed to cooperate in the Investigation in violation
of this Sec.9.14, and The Times 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:
(A) impose a penalty ("Final Penalty") which may not, in
conjunction with any Interim Penalty or Final Penalty
imposed during the term of this Agreement under this
Agreement and/or during the term of the Lease with
respect to any other
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Transaction Document, exceed $500,000 in the aggregate
during the term of the Lease; and/or
(B) disqualify The Times, 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 EDC or
the City, other than as contemplated in the
Transaction Documents.
Notwithstanding anything to the contrary contained herein, in the event
that The Times is found after the Hearing to have failed to cooperate in the
Investigation, but nonetheless is not subjected to a Final Penalty because The
Times commences to cooperate fully in such Investigation within five (5)
Business Days following its receipt of written notice of such determination,
The Times shall be liable for the cost of conducting such Hearing in an amount
not to exceed $5,000.
(g) 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, the factors in
clauses (i) and (ii) of this Sec.9.14(g). He or she may also consider, if
relevant and appropriate, the criteria established in clauses (iii) and (iv)
of this Sec.9.14(g), in addition to any other information which may be relevant
and appropriate:
(i) The Times's good faith endeavors or lack thereof to cooperate
fully and faithfully with the Investigation, including but not
limited to the discipline,
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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 Persons failing to testify would violate any union or other
contract),
(ii) the relationship of the Person who refused to testify to The
Times, including, but not limited to, whether the Person whose
testimony is sought has an ownership interest in The Times and/or
the degree of authority and responsibility the Person has within
The Times,
(iii) The nexus of the testimony sought to The Times and the
Transaction Documents, and/or
(iv) the effect a penalty may have on an unaffiliated and
unrelated party or Entity that has a significant interest in The
Times, provided that (x) such unrelated party or Entity has given
actual notice to the Commissioner or EDC upon the acquisition of
the interest, or (y) at the Hearing such unrelated 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.
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(h) Payment of Penalties. Any Interim or Final Penalty hereunder
----------------------
shall, upon imposition thereof, be applied to reduce the aggregate of Offset
Amounts (as such term is defined in the Lease) then available to The Times
under Article 4 of the Lease and the balance, if any, shall be paid promptly
as additional Rental, or at the landlord under the Lease's option, such
balance shall be applied to reduce EDC's obligations with respect to any
undisbursed Funding.
(i) Exclusive Remedy. Notwithstanding anything to the contrary
------------------
contained in this Agreement, the remedies set forth in Sec.9.14(f) hereof shall
be the sole and exclusive remedies available to EDC in the event that The
Times breaches any of its obligations under this Sec.9.14, and no other
remedies, including, without limitation, the remedies set forth elsewhere in
this Agreement for defaults by The Times in the performance of its obligations
under this Agreement, shall be applicable to a breach by The Times of any of
its obligations under this Sec.9.14.
(j) Right to Dispute Determinations of Deputy Mayor. Nothing
-------------------------------------------------------
contained herein shall be construed to limit in any manner whatsoever The
Times'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 Sec.9.14.
(k) Concurrent Lease Obligation. The obligations of The Times under
-----------------------------
this Sec.9.14 constitute a portion of the obligations of The Times under Article
40A of the Lease, and nothing contained herein shall be construed as
expanding, enlarging or increasing in any way, or as being separate from or in
addition to, the obligations and liabilities of The Times
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pursuant to Article 40A of the Lease.
Sec.9.15. Intentionally omitted.
Sec.9.16 Maximum Interest Rate
---------------------
In the event that any interest payable under this Agreement shall be
deemed to exceed the maximum rate permitted by law, then the amount of
interest to be paid shall be the maximum rate so permitted.
Sec.9.17 Captions
--------
The captions in this Agreement are inserted for convenience of reference
only and in no way define, describe or limit the scope or intent of this
Agreement or any of the provisions hereof.
Sec.9.18 Gender, Etc.
------------
The gender used in this Agreement shall be deemed to refer to the
masculine, feminine, or neuter gender, as the identity of the contracting
parties may require. The singular shall include the plural and vice versa as
the context may dictate.
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Sec.9.19 Assignment by EDC. EDC shall not assign this Agreement without
------------------
the prior written consent of The Times, except that EDC shall have the right,
upon ten (10) Business Days prior written notice, to assign this Agreement
and/or EDC's rights under this Agreement, without any further consent on the
part of The Times, to the City.
Sec.9.20 Obligations of Newspaper Division. EDC acknowledges and agrees
-----------------------------------
that all non-monetary obligations set forth in this Agreement as being
obligations of The Times shall apply only to, and be performed by, The New
York Times Newspaper Division of The New York Times Company (the "Newspaper
Division") and its employees and agents, and EDC shall look solely to the
Newspaper Division for the performance of such non-monetary obligations;
provided, however, that any default by the Newspaper Division in the
performance of such non-monetary obligations shall be treated with the same
force and effect pursuant to the applicable provisions of this Agreement as if
such default had been committed by The Times.
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ARTICLE TEN - AGREEMENT OF THE CITY
-----------------------------------
Sec.10.1 City's Agreement to Fund EDC. The City, by executing this
--------------------------------
Agreement as it effects this Article Ten only, (i) acknowledges that it is
becoming a signatory to this Agreement as a material inducement to The Times
to enter into this Agreement, (ii) warrants and represents that the
Consolidated Contract is in full force and effect and legally binding upon the
City; and (iii) covenants and agrees to provide EDC with City capital budget
funds in such amounts and at such times as will permit EDC to comply with its
obligations to disburse the Funding pursuant to the provisions of this
Agreement, without regard to whether the Consolidated Contract is then in full
force and effect or whether EDC is in compliance with the terms thereof.
Sec.10.2 Valid Agreement of the City. A legal opinion of the Corporation
----------------------------
Counsel (addressed to The Times) to the effect that this Agreement is legal,
valid and binding upon the City with respect to the provisions of this Article
Ten in the form attached hereto as Appendix L, is hereby being delivered to
The Times concurrently herewith.
Sec.10.3 The Times's Rights Against the City. In the event that the City
------------------------------------
has defaulted in the performance of any obligation of the City pursuant to
this Article Ten and continues to be in default thereof after notice from The
Times and a thirty (30) day cure period, the Times shall have all of its
rights at law and in equity against the City.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
day and year first above written.
NEW YORK CITY ECONOMIC
DEVELOPMENT CORPORATION
By: /s/ Carl Weisbrod
--------------------------
Carl Weisbrod
Title: President
THE NEW YORK TIMES COMPANY
By: /s/ Katharine P. Darrow
--------------------------
Katharine P. Darrow
Title: Senior Vice President
THE CITY, BY SIGNING IN THE
PLACE PROVIDED BELOW,
AGREES TO BE BOUND BY THE
PROVISIONS OF ARTICLE TEN HEREOF:
THE CITY OF NEW YORK
By: /s/ Barry F. Sullivan
------------------------------
APPROVED AS TO FORM:
By: /s/
------------------------------
Acting Corporation Counsel
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STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
On the 17th day of December, 1993,before me personally came
Carl Weisbrod, to me known, who, being by me duly sworn, did depose and
say that s/he resides at c/o 110 William St. NY NY; that s/he is
the President of New York City Economic Development Corporation, the
corporation described in and which executed the foregoing instrument; and that
s/he signed her/his name thereto by authority of the board of directors of
such corporation.
Frieda L. Dweck
-------------------------------
Notary Public
STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
On the 17thday of December, 1993,before me personally came
Katharine P. Darrow, to me known, who, being by me duly sworn, did depose
and say that s/he resides at 16 Garden Place, Brooklyn, NY; that s/he is
the Senior V.P. of The New York Times Company, the corporation described
in and which executed the foregoing instrument; and that s/he signed her/his
name thereto by authority of the board of directors of such corporation on
behalf of such corporation.
Beverly Sturr
------------------------------
Notary Public
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STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
On the 17th day of December, 1993, before me personally came
Barry F. Sullivan, to me known, who, being by me duly sworn, did depose
and say that s/he resides at c/o City Hall, NY, NY; that s/he is
the Deputy Mayor of The City of New York and the same person who executed the
foregoing instrument; and that s/he acknowledged that s/he signed her/his name
thereto on behalf of The City of New York and pursuant to the authority vested
in her/him.
Frieda L. Dweck
-----------------------------
Notary Public
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Appendix C: NEW YORK TIMES FUNDING AGREEMENT #1 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 9.00%
cost(25 yr bonds)
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 $7,500,000
Grant:
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 7,500,000 6 Relocation/Abdmn 3,000,000 4,500,000
Cease/Abdmnt
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.
(nytpay4)
Appendix C-1: NEW YORK TIMES FUNDING AGREEMENT #1
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 9.00%
borrowing cost(25
yr bonds)
Phase Five (8 presses) $3,750,000 Interest Annual
----------
Calculation:
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%)X 23 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.