EXHIBIT 10.16(c)
SECOND AMENDMENT TO LEASE
SECOND AMENDMENT TO LEASE dated the 25 day of May, 1999 (this "Second
Amendment") by and between LEXREAL ASSOCIATES LIMITED PARTNERSHIP, a New York
limited partnership, as Landlord ("Landlord") and YOUNG BROADCASTING, INC., a
Delaware corporation, as Tenant ("Tenant").
W I T N E S S E T H:
Preliminary Statement
WHEREAS, by Lease dated March 29, 1990 (the "Original Lease"), Tenant
leased from Lexreal Associates, Landlord's predecessor-in-interest, certain
premises (the "Initial Premises") consisting of the entire rentable area of the
forty-seventh (47th) floor of the building known as 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Building"); and
WHEREAS, by First Amendment to Lease dated January 14, 1997 (the "First
Amendment"; the Original Lease as amended by the First Amendment is hereinafter
referred to as the "Lease"), Tenant leased from Lexreal Associates certain
additional premises (the "First Additional Premises") consisting of a portion of
the rentable area of the twenty-second (22nd) floor of the Building; and
WHEREAS, the Lease Term with respect to the Initial Premises is scheduled
to expire on September 30, 2000, and the Lease Term with respect to the First
Additional Premises is scheduled to expire on June 30, 2002.
WHEREAS, Landlord and Tenant desire to extend the Lease Term solely with
respect to the Initial Premises and otherwise modify the Lease upon the terms
and conditions set forth herein.
NOW THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant confirm and agree as follows:
1. LEASE TERM WITH RESPECT TO THE INITIAL PREMISES. The Expiration Date of
the Lease Term solely with respect to the Initial Premises is hereby amended to
be May 31, 2009.
2. RENT; BASE TAXES; BASE OPERATING EXPENSES.
(a) Annual Fixed Rent. "Exhibit J" to the Lease is amended by
substituting in lieu thereof a new "Exhibit J" as attached hereto.
(b) Base Taxes and Base Operating Expenses. Effective as of June 1,
1999, the Lease is amended such that, solely with respect to the Initial
Premises:
(i) Base Taxes shall mean actual Taxes for the Tax Year
commencing on July 1, 1999 and ending on June 30, 2000.
(ii) Base Operating Expenses shall mean one-half of the sum
of (A) the actual Operating Expenses for the Operating
Year commencing on January 1, 1999 and ending on
December 31, 1999 and (B) the actual Operating Expenses
for the Operating Year commencing on January 1, 2000 and
ending on December 31, 2000.
Tenant shall continue to pay Tenant's Share of Taxes and Operating
Expenses with respect to the First Additional Premises in accordance with the
terms of the First Amendment.
3. BROKERS.
(a) Tenant warrants and represents that Tenant has not dealt with
any broker in connection with the consummation of this Second Amendment other
than GVA Xxxxxxxx Real Estate Co., Inc. (the "Broker"); and in the event any
claim is made against Landlord by any other broker or agent alleging dealings
with Tenant, Tenant shall defend Landlord against such claim, using counsel
approved by Landlord, such approval not to be unreasonably withheld, and save
harmless and indemnify Landlord on account of any loss, cost, damage and expense
(including, without limitation, attorneys' fees and disbursements) which may be
suffered or incurred by Landlord by reason of such claim.
(b) Landlord warrants and represents that Landlord has not dealt
with any broker in connection with the consummation of this Second Amendment
other than the Broker; and in the event any claim is made against Tenant by any
other broker or agent alleging dealings with Landlord, Landlord shall defend
Tenant against such claim, using counsel approved by Tenant, such approval not
to be unreasonably withheld, and save harmless and indemnify Tenant on account
of any loss, cost, damage and expense (including, without limitation, attorneys'
fees and disbursements) which may be suffered or incurred by Tenant by reason of
such claim.
(c) Landlord agrees that it shall be solely responsible for the
payment of any brokerage commission or fee which may be due to the Broker
pursuant to a separate agreement between Landlord and the Broker. Tenant
acknowledges that, pursuant to such separate agreement, the Broker shall be
entitled to additional commissions in connection with the extension or renewal
of the Lease Term and/or the leasing by Tenant of any additional space in the
Building. Tenant covenants that, in the event any claim is made against Landlord
by any broker or agent alleging dealings with Tenant in connection with the
extension or renewal of the
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Lease Term and/or the leasing by Tenant of any additional space in the Building
(other than the Broker and, solely to the extent of its involvement in
connection with the original lease transaction, Xxxxxx X. Company, Inc.), Tenant
shall defend Landlord against such claim, using counsel approved by Landlord,
such approval not to be unreasonably withheld, and save harmless and indemnify
Landlord on account of any loss, cost, damage and expense (including, without
limitation, attorneys' fees and disbursements) which may be suffered or incurred
by Landlord by reason of such claim.
4. RETURN OF SECURITY DEPOSIT. Provided that no Event of Default (or any
state of facts which, with the giving of notice or the passage of time, would
constitute an Event of Default) shall then exist, effective as of June 1, 1999,
Section 20.22 of the Lease (Security Deposit) shall be deemed to be deleted, and
within thirty (30) days thereafter Landlord shall return the Security Deposit to
Tenant.
5. OPTION TO EXTEND. Landlord and Tenant confirm and agree that Article 21
of the Lease (Option to Extend) shall continue in full force and effect solely
with respect to the Initial Premises, modified as follows:
(i) In the second sentence of Section 21.2, the phrase "the
one hundred twenty-fourth (124th) monthly anniversary of
the Commencement Date" is hereby deleted and replaced
with "the commencement of the Extended Term."
(ii) In the next to last sentence of Section 21.2, the phrase
"the last day of the initial Lease Term" is hereby
deleted and replaced with "May 31, 2009."
6. FIRST RIGHT TO LEASE; CERTAIN OTHER SPACE.
(a) Landlord and Tenant confirm and agree that Article 22 of the
Lease (First Right to Lease) shall continue in full force and effect throughout
the Lease Term as extended by this Second Amendment, modified as follows:
(i) In the first paragraph, the third sentence is hereby
deleted and replaced with the following: "Annual Fixed
Rent and Additional Rent with respect to any such
Offered Space shall be as set forth in such offer."
(ii) The second paragraph is hereby deleted and replaced with
the following: "For purposes of the first sentence of
this Article 22, the term "lease" shall not include any
lease entered into prior to June 1, 1999 for any portion
of the First Refusal Space, any leasing
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pursuant to any option, commitment or right of first
refusal held by another tenant to expand the premises
occupied by such other tenant, or the renewal or
extension of an expiring lease with a then existing
tenant. Any commitment from Landlord to Tenant to make
Offered Space available shall impose no liability on
Landlord if the then occupant thereof wrongfully fails
to deliver possession at the time when its tenancy is
scheduled to expire, but if delivery or possession of
the Offered Space to which Tenant's rights of first
refusal applies and as to which such right has been
exercised, is delayed for more than one hundred twenty
(120) days following the date when the same was to have
been made available to Tenant, Tenant shall have the
right, within ten (10) days after the expiration of such
120-day period, to terminate Tenant's obligations in
respect of such Offered Space, but not otherwise with
respect to the Premises."
(b) Landlord shall use reasonable efforts to keep Tenant apprised of
other space in the Building consisting of approximately 2,000 to 7,600 rentable
square feet which may become available for lease prior to June 30, 2002. The
foregoing sentence shall not be construed to grant Tenant any rights to any such
space and Landlord's failure to keep Tenant so apprised shall not be deemed to
be a default of Landlord or to subject Landlord to any liability.
7. MISCELLANEOUS. Promptly after the date of this Second Amendment,
Landlord shall, at Landlord's sole cost and expense, take commercially
reasonable action to reduce the sound volume and vibration of the Building
systems affecting portions of the Initial Premises to a reasonable standard,
including without limitation, the following action as identified by Landlord's
consultant: (a) replacement of spring isolators in roof machine room floating
bases and pipe hangers; (b) isolation of areas of piping within the local (47th
floor) air-conditioning room with a sound-proofing material; and (c)
improvements to roof mechanical room walls and insulation to mitigate noise
transmitted through slab edge fire stopping.
8. ANTENNA. Landlord and Tenant acknowledge that Tenant has installed a
satellite dish on the roof the Building. Landlord agrees that such satellite
dish may remain subject to the terms and conditions set forth in new Article 23
attached hereto, which Article 23 is hereby added to the Lease, and that, to
Landlord's knowledge, such satellite dish is currently in compliance with said
Article 23.
9. DEFINITIONS. All capitalized terms used herein shall have the same
meaning as set forth in the Lease unless specifically otherwise provided herein.
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10. EFFECT OF AMENDMENT. Except as set forth herein, the Lease shall
remain unchanged and in full force and effect. All references to the "Lease"
shall be deemed to be references to the Lease as amended by this Second
Amendment.
EXECUTED in one or more counterparts by persons or officers hereunto duly
authorized as of the date and year first above written.
LANDLORD:
LEXREAL ASSOCIATES LIMITED PARTNERSHIP
By: Boston Properties, LLC, its General Partner
By: Boston Properties Limited Partnership,
its Manager
By: Boston Properties, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President
TENANT:
YOUNG BROADCASTING, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Name: Xxxxx X. Xxxxxx
Title: Exec. V.P./CFO
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EXHIBIT J
SCHEDULE OF ANNUAL FIXED RENT
(As amended pursuant to Second Amendment to Lease)
INITIAL PREMISES
(a) From the end of the period provided for in Section 5.5 subpart (a) of the
Lease through the day preceding the fifth (5th) anniversary of the
Commencement Date, an Annual Fixed Rent of Four Hundred Thirty-Three
Thousand Two Hundred and no/100 Dollars ($433,200.00); and
(b) From the fifth (5th) anniversary of the Commencement Date through May 31,
1999, an Annual Fixed Rent of Four Hundred Sixty-Three Thousand Six
Hundred and no/100 Dollars ($463,600.00); and
(c) From June 1, 1999 through May 31, 2004, an Annual Fixed Rent of Four
Hundred Eighty-Six Thousand Four Hundred and no/100 Dollars ($486,400.00);
and
(d) From June 1, 2004 through the Expiration Date, an Annual Fixed Rent of
Five Hundred Thirty-Two Thousand and no/100 Dollars ($532,000.00).
FIRST ADDITIONAL PREMISES
From the First Additional Premises Commencement Date through the First
Additional Premises Expiration Date, an Annual Fixed Rent of Seventy-Seven
Thousand Eight Hundred Forty and no/100 Dollars ($77,840.00).
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ARTICLE 23
ANTENNA
23.1 RIGHT TO INSTALL ANTENNA. (a) Landlord understands that during the
Term Tenant may require communication services in connection with the operation
of Tenant's business which would necessitate the construction, installation,
operation and use by Tenant of a communication antenna, microwave and/or
satellite dish, together with related equipment, mountings and supports
(collectively, the "Antenna") on the roof of the Building. Subject to the rights
of other tenants in the Building, Landlord shall make available to Tenant, for
Tenant's own use (and not for resale purposes) sufficient (as reasonably
determined by Landlord) space on the roof of the Building for the Antenna at a
location designated by Landlord. Tenant's use of the roof of the Building shall
be on a non-exclusive basis. In connection therewith, and subject to the rights
of other tenants in the Building, Landlord shall make available to Tenant access
to the roof for the construction, installation, maintenance, repair, operation
and use of the Antenna, as well as reasonable space in the Building to run
electrical and telecommunications conduits from the Antenna to the Premises. The
installation of the Antenna shall constitute an Alteration and shall be
performed at Tenant's sole cost and expense (including without limitation, any
costs and expenses in connection with reinforcing the roof of the Building, if
required) in accordance with and subject to the provisions of Article 8 hereof.
All of the provisions of this Lease with respect to Tenant's obligations
hereunder shall apply to the installation, use and maintenance of the Antenna,
including, without limitation, provisions relating to compliance with legal and
insurance requirements, insurance, indemnity, repairs and maintenance. The
license granted to Tenant in this Article 23 shall not be assignable by Tenant
separate and apart from this Lease. The Antenna shall be treated for all
purposes of this Lease as if the same were Tenant's Property.
(b) Tenant shall use and maintain the Antenna so as not to cause any
interference to other tenants in the Building or damage to or interference with
the operation of the Building or Building systems. At the end of the Lease Term
or at such earlier time as Tenant may elect to remove the Antenna, Tenant shall
repair all damage to the Building caused by removal of the Antenna. If Tenant
removes the Antenna prior to the expiration of the Lease Term and does not
commence replacement of the same within sixty (60) days thereafter, Tenant shall
have no further right to install any Antenna and the provisions of this Article
23 shall be void.
(c) Tenant, at Tenant's sole cost and expense, shall paint and
maintain the Antenna in white or such other color as Landlord shall determine
and shall install such lightning rods or air terminals on or about the Antenna
as Landlord may reasonably require.
23.2 DISCONTINUANCE/RELOCATION. If any of the conditions set forth in this
Article 23 are not complied with by Tenant, then, without limiting Landlord's
rights and remedies Landlord may otherwise have under this Lease, Tenant, upon
written notice from Landlord, at Landlord's option, shall either (i) immediately
discontinue its use of the Antenna and remove the same or (ii) reposition the
Antenna to a location designated by Landlord if Landlord elects to permit such
repositioning, all at Tenant's sole cost and expense. Notwithstanding the
foregoing, Landlord may at its option, at any time during the Term after
reasonable prior notice to Tenant (except in the event of an emergency) relocate
the Antenna to another area on the roof designated by Landlord at Tenant's sole
cost and expense.
23.3 LICENSE. Tenant shall promptly pay any tax, license, permit or other
fees or charges imposed pursuant to any legal or insurance requirements relating
to the installation, maintenance or use of the Antenna. Tenant acknowledges and
agrees that the privileges granted Tenant under this Article 23 shall merely
constitute a license and shall not, now or at any time after the installation of
the Antenna, be deemed to grant Tenant a leasehold or other real property
interest in the Building or an portion thereof. The license granted to Tenant in
this Article 23 shall automatically terminate and expire upon the expiration or
earlier termination of this Lease and the termination of such license shall be
self-operative and no further instrument shall be required to effect such
termination.
