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EXHIBIT 10.4
LEASE AGREEMENT
BY AND BETWEEN
TMCT, LLC
AS LANDLORD
AND
THE TIMES MIRROR COMPANY
AS TENANT
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TABLE OF CONTENTS
Page
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1. Lease..............................................................................1
2. Use ..............................................................................1
3. Term ..............................................................................2
4. Rent ..............................................................................2
5. Maintenance and Repair.............................................................4
6. Alterations and Additions..........................................................4
7. Liens..............................................................................5
8. Assignment and Subletting..........................................................5
9. Exemption of Landlord from Liability...............................................7
10 Triple Net Lease...................................................................7
11 Tenant's Environmental Representations and Indemnification of Landlord.............7
12. Indemnification of Landlord.......................................................9
13. Insurance.........................................................................9
14. Waiver of Subrogation............................................................11
15. Utilities and Services...........................................................11
16. Real Property Taxes..............................................................11
17. Damage or Destruction............................................................12
18. Condemnation.....................................................................13
19. Default..........................................................................14
20. Remedies.........................................................................15
21. Interest on Past-Due Obligations; Late Charge....................................17
22. Holding Over.....................................................................17
23. Quiet Enjoyment..................................................................17
24. Estoppel Certificate.............................................................17
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25. Surrender of Premises............................................................17
26. Notices..........................................................................18
27 Option to Purchase...............................................................18
28. Defined Terms and Headings.......................................................20
29. Enforceability...................................................................20
30. Commissions......................................................................20
31. Attorneys' Fees..................................................................20
32. Time and Applicable Law..........................................................20
33. Successors and Assigns...........................................................21
34. Entire Agreement.................................................................21
35. Recordation......................................................................21
36. Exhibits.........................................................................21
37. Covenants and Conditions.........................................................21
38. Survival.........................................................................21
39. No Joint Venture.................................................................21
40. Calendar Days and Business Days..................................................21
41. Subordination, Nondisturbance and Attornment.....................................21
42. Counterparts.....................................................................22
43. Waiver...........................................................................22
44. Landlord's Access................................................................22
45. Business Improvement Districts...................................................22
Exhibits
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Exhibit A - Legal Description
Exhibit B - Memorandum of Lease
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LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made and entered into as of August 8,
1997 ("Commencement Date"), by and between THE TIMES MIRROR COMPANY, a Delaware
corporation ("Tenant"), and TMCT, LLC, a Delaware limited liability company
("Landlord").
R E C I T A L S
WHEREAS, concurrent herewith Landlord is obtaining the fee interest in
the Premises from Tenant's subsidiaries in the form of a capital contribution;
WHEREAS, as a condition to such capital contribution, Tenant is
requiring that Landlord lease the Premises to Tenant; and
WHEREAS, Landlord is only willing to lease the Premises to Tenant on the
terms set forth below.
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby agree as follows:
AGREEMENT
1. LEASE. Landlord hereby leases to Tenant and Tenant leases from
Landlord certain real estate owned by Landlord and located in the states of
California, Connecticut, Maryland, Missouri and New York (each parcel of real
property a "Parcel", collectively "Parcels"), together with all buildings,
improvements, equipment and fixtures located on or attached to said real estate
now or during the Term of this Lease (each Parcel, together with the
improvements, equipment and fixtures located on or attached to said parcel, a
"Property" and collectively the "Premises"), which Properties are listed in
Exhibit A and which Parcels are more particularly described in Exhibits A-1
through Exhibits A-8 attached hereto and incorporated herein by this reference.
Tenant acknowledges that its subsidiaries have occupied the Premises for an
extended period of time prior to the Commencement Date and Tenant agrees to
lease the Premises on an "as-is" and "with all faults" basis.
2. USE. The Premises may be used by Tenant in the manner used by
Tenant's subsidiaries prior to the Commencement Date. The Premises may also be
used by Tenant for any use permitted by applicable zoning and other applicable
law, so long as any such new use does not reduce the fair market value of the
Premises. Tenant shall not allow the Premises to be used for any unlawful
purpose, nor shall Tenant cause or maintain or permit any nuisance in, on, or
about the Premises. Tenant shall not commit or suffer the commission of any
waste in, on, or about the Premises. Tenant shall comply with all governmental
laws, ordinances, regulations, directives, covenants and restrictions of record
("Regulations") applicable to the use and its occupancy of the Premises, and
shall promptly comply with the Regulations for the prevention and abatement of
any violations or nuisances in or upon, or connected with, the Premises, all at
Tenant's sole expense. If, as a result of any change in the Regulations, the
Premises must be altered to lawfully accommodate Tenant's use and occupancy,
such alterations shall be made solely at Tenant's expense. Tenant shall not do
or permit anything to be done on or about the Premises or bring or keep anything
therein which will in any way jeopardize the coverage of insurance thereon.
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3. TERM. The term (the "Term") of this Lease shall be for the period
commencing upon the Commencement Date (as defined in the initial paragraph of
this Lease) and ending twelve (12) years thereafter (the "Initial Term") or the
last day of any Additional Term (the "Termination Date"), unless sooner
terminated as herein provided. At Tenant's option, Tenant may extend the Term
for up to two (2) additional terms (each an "Additional Term", and,
collectively, the "Additional Terms") if but only if (i) this Lease shall not
have been terminated pursuant to any of the provisions hereof, and (ii) Tenant
is not in default hereunder unless such default is commercially impractical to
cure. Tenant may exercise such options by giving Landlord written notice (the
"Extension Notice") at least one (1) year prior to the expiration of the current
term. Each Additional Term shall be for twelve (12) years and commence (i) on
the expiration of the Initial Term, with respect to the first Additional Term,
and (ii) on the expiration of the first Additional Term with respect to the
second Additional Term.
3.1 Upon the giving by Tenant to Landlord of the Extension
Notice, the current Term shall be deemed to be automatically extended
upon all the covenants, agreements, terms, provisions and conditions set
forth in this Lease (excluding any previously exercised or extinguished
option to extend) except that Rent during such extension shall be
determined as provided in Section 4.
3.2 If Tenant fails or omits to give Landlord the Extension
Notice, it shall be deemed, without further notice and without further
agreement between the parties hereto, that Tenant elected not to
exercise the options granted Tenant pursuant to this Section 3 to extend
the Term. Failure by Tenant to exercise any option to extend the Term
for an Additional Term shall result in expiration and termination of any
and all subsequent options to extend the Term hereof.
4. RENT.
4.1 For the period beginning on the Commencement Date through and
including the Termination Date, Tenant shall pay as rent (the "Rent")
for the Premises: (i) the amount (the "Base Rent") each calendar month
as provided in this Section 4, (ii) the cost of all utilities and
services as set forth herein, (iii) the cost of insurance as set forth
herein and (iv) the cost of the Real Property Tax as set forth in
Section 16. Each payment of Base Rent made pursuant to this Section 4
shall be made in advance on the first day of each calendar month. If the
Term commences or ends on a date other than the first day of the month,
the installment for any partial month shall be prorated on the basis of
thirty (30) calendar days per month.
4.2. The Base Rent shall be paid in monthly installments as set
forth herein, without deduction or offset, in such currency of the
United States as at the time shall be legal tender for the payment of
public and private debts, at such place as Landlord may designate from
time to time.
4.3 The Base Rent payable by Tenant during the Initial Term shall
be Two Million Seventy Thousand Two Hundred Ninety-One Dollars and
Seventy Cents ($2,070,291.70) per month ($24,843,500.00 per year).
4.4 The Base Rent payable during each Additional Term shall be at
Fair Market Rental Value, which shall be determined as follows:
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4.4.1 Within thirty (30) days after Landlord receives
Tenant's Extension Notice, Landlord and Tenant shall mutually
agree upon and appoint one appraiser to determine the fair market
rental value of the Premises. If Landlord and Tenant are unable
to agree upon a single appraiser to appraise the fair market
rental value of the Premises within such thirty day period, then
Landlord and Tenant shall each appoint an appraiser within sixty
(60) days after Landlord receives Tenant's Extension Notice to
determine the fair market rental value of each Property (a single
appraiser may appraise more than one Property and Landlord and
Tenant shall each use best efforts to minimize the total number
of appraisers appointed), and notice of each such appointment
shall be given to the other party. For each Property, the
appraisers thus appointed shall proceed to determine such fair
market rental value for such Property within thirty (30) days
after notice of their appointment.
4.4.2 If the parties were unable to agree on a single
appraiser to appraise the fair market rental value of the
Premises, then within fifteen (15) days after the parties have
each appointed appraisers pursuant to Subsection 4.4.1, the
appraisers appointed for each Property shall join to appoint a
third appraiser to appraise such Property and if they fail so to
appoint such third appraiser within such period, the third
appraiser shall be appointed by the court exercising such
functions in the jurisdiction in which the Property is located
except that if the court will not do so the third appraiser shall
be appointed by the American Arbitration Association or similar
organization performing such functions, and such third appraiser
shall then individually determine the fair market rental value
for such Property within thirty (30) days of notice of
appointment.
4.4.3 If Landlord and Tenant fail to appoint a single
appraiser to appraise the fair market rental value of the
Premises, then the average of the fair market rental values
contained in the two closest appraisals shall constitute the fair
market rental value of such Property, and such determination
shall be binding upon each of the parties. In the event that
there are not two closest appraisals (e.g., if the middle
appraisal is exactly halfway between the highest and lowest
appraisals), then the middle appraisal shall be binding upon each
of the parties. The fair market rental value of the Premises
shall be equal to the sum of the fair market rental values of
each Property.
4.4.4 All appraisers appointed hereunder shall be
competent, qualified by training and experience in the County in
which the Property(ies) they are appraising is located,
disinterested and independent and shall be members in good
standing of the American Institute of Real Estate Appraisers or
its successor and all appraisal reports shall be rendered in
writing and signed by the appraiser or appraisers making the
report.
4.4.5 For purposes of this Section 4, the term "fair
market rental value" means the rental rate, including all
escalations, at which tenants lease comparable space as of the
commencement of the Option Term. In determining the fair market
rental value, an appraiser shall take into account the terms of
this Lease, including but not limited to such terms as the option
to purchase and the triple net lease provisions. For this
purpose, "comparable space" shall be space that is:
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(a) Not subject to another tenant's expansion rights;
(b) Not leased to a tenant that holds an ownership
interest in the landlord;
(c) Not leased to a tenant under a renewal or an extension
of a lease;
(d) Comparable in size, location, and quality to the
Property; provided, however, that the size and quality of the
Property shall be determined as if any capital improvements (as
that term is defined in Subsection 27.3.3) made by Tenant or a
subtenant had not been made and, instead, any improvements
replaced by a capital improvement had remained and had been
maintained, repaired and/or replaced as required under this
Lease;
(e) Leased for a term comparable to the Additional Term;
and
(f) Suitable for the tenant's use in an "as-is" condition
without the need for any tenant improvement allowance.
4.4.6 Landlord and Tenant shall each be solely responsible
for the costs, fees and expenses of the appraisers that they
appoint pursuant to Subsection 4.4.1. All costs, fees and
expenses of the appraisers appointed pursuant to Paragraph 4.4.2
shall be divided equally between Landlord and Tenant.
5. MAINTENANCE AND REPAIR. Tenant shall at all times keep in good
condition and repair the Premises and every part thereof, structural and
non-structural, including, without limiting the generality of the foregoing, all
plumbing, heating, air conditioning, ventilating, electrical, lighting
facilities and equipment within the Premises, fixtures, walls (interior and
exterior), foundations, ceilings, roofs (interior and exterior), floors,
windows, doors, plate glass and skylights located within the Premises, and all
gardening, landscaping, driveways, parking lots, fences and signs located on the
Premises and sidewalks and parkways adjacent to the Premises. Notwithstanding
the foregoing, Tenant shall have the rights specified in Sections 6 and 17
below. It is hereby understood and agreed that other than its obligations under
Section 17 below, Landlord has no other obligation to repair and maintain the
Premises or any part thereof, all of which obligations are intended to be that
of Tenant. Tenant expressly waives to the extent permitted by law the benefit of
any statute or other law or regulation now or hereafter in effect which would
otherwise afford Tenant the right to make repairs at Landlord's expense or to
terminate this Lease because of Landlord's failure to keep the Premises in good
order, condition and repair.
6. ALTERATIONS AND ADDITIONS. Tenant shall be permitted to make any
alterations, improvements, additions, or installations ("Improvements") in, on
or about the Premises; provided, however, that Tenant shall not make any of the
following Improvements without the consent of Landlord, which consent shall not
be unreasonably withheld, conditioned or delayed: (i) any Improvement which will
result in a modification to the footprint of any load bearing exterior wall of
any building or any material portion thereof located on any Parcel; (ii) any
single project of which one or more Improvements is a part costing (including
all costs that are capitalized according to GAAP standards) in excess of Fifteen
Million Dollars ($15,000,000); (iii) any Improvement which will render any
building on any Parcel unusable for the general purpose for which such building
was
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used prior to the construction of such Improvement. Tenant shall be responsible
for payment of all governmental fees and costs imposed in connection with the
Improvements and/or the use of the Premises by Tenant, and Landlord shall not
have any obligation in that regard. Tenant shall properly construct any and all
Improvements in compliance with all applicable laws and shall not make
Improvements which reduce the fair market value of the Premises. Promptly after
the completion of any Improvements, Tenant shall provide Landlord with as-built
plans and specifications for such Improvements. All Improvements which may be
made on the Premises by Tenant or any subtenant shall be made in compliance with
all applicable Regulations, and any such Improvements shall be the sole and
exclusive property of Tenant during the Term of this Lease; provided that any
such Improvements (other than Tenant's trade fixtures and personal property,
which Tenant may elect to remove at the expiration or earlier termination of
this Lease pursuant to Section 25) shall become the property of Landlord and
remain upon and be surrendered with the Premises at the expiration or prior
termination of the Lease.
7. LIENS. Tenant shall keep the Premises and Tenant's interest in the
Premises free from any liens arising out of any work performed, materials
furnished, or obligations incurred by Tenant. In the event that Tenant shall
not, within thirty (30) days following the imposition of any such lien, cause
the same to be released of record by payment or posting of a proper bond,
Landlord shall have, in addition to all other remedies provided herein and by
law, the right, but not the obligation, to cause the same to be released by such
means as it shall deem proper, including payment of the claim giving rise to
such lien. All such sums paid by Landlord and all expenses, including attorneys'
fees, incurred by it in connection therewith shall be payable to Landlord by
Tenant on demand. If Tenant shall, in good faith, contest the validity of any
such lien, then Tenant shall, after prior written notice to Landlord, at its
sole cost and expense, defend itself and Landlord against the same and shall pay
and satisfy any such adverse judgment that may be rendered thereon before the
enforcement thereof against Landlord or the Premises, provided that (i) neither
the Premises nor any part thereof would be in any danger of being sold,
forfeited, lost or interfered with, and (ii) Tenant shall furnish to Landlord a
surety bond in form and from a surety reasonably satisfactory to Landlord in an
amount equal to one hundred fifty percent (150%) of such contested lien
indemnifying Landlord against liability for the same and holding the Premises
free from the effect of such lien.
8. ASSIGNMENT AND SUBLETTING.
8.1 Tenant may not assign the Lease without the prior written consent of
Landlord, which consent may be withheld in Lessor's sole discretion.
Notwithstanding this limitation, Tenant may assign the Lease without the consent
of Lessor to an affiliate of Tenant (provided, however, that any event or
combination of events which results in such entity ceasing to be an affiliate of
Tenant shall be considered to be an assignment, requiring the consent of
Landlord hereunder) or to an entity acquiring the entire business of Tenant (and
its affiliates) as carried out in the Premises. Any assignee of Tenant must
assume Tenant's obligations under the Lease in a form acceptable to Landlord and
Tenant shall not be relieved from its liability under the Lease by reason of any
assignment. Tenant shall provide Lessor with a copy of any assignment of the
Lease.
8.2 Tenant shall have the right to sublease any portion of the Premises
with the consent of Lessor, which consent shall not be unreasonably withheld,
conditioned or delayed. Lessor's consent to sublease a portion of the Premises
shall not be required (i) if the sublease is to an affiliate of Tenant
(provided, however, that any event or combination of events which results in
such entity
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ceasing to be an affiliate of Tenant shall be considered to be a sublease to a
non-affiliate of Tenant, requiring the consent of Landlord hereunder) or an
entity acquiring the entire business of Tenant or Tenant's affiliate
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being conducted at the portion of the Premises so sublet, or (ii) if the
space to be sublet, plus any other space previously sublet to non-affiliates
without Landlord's consent, together total not more than ten percent (10%) of
the square footage of the structures located on the Parcels.
9. EXEMPTION OF LANDLORD FROM LIABILITY. Except with respect to its
obligations under Section 17 below with respect to casualties, Landlord shall
not be liable to Tenant and Tenant hereby assumes all risks and waives all
claims against Landlord for any damage to any property or any injury to or death
of any person in or about the Premises by or from any cause whatsoever arising
at any time, and without limiting the generality of the foregoing, whether
caused by fire, steam, electricity, gas, water, or rain, or from the breakage,
leakage, obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures, or from any other cause
regardless of whether the cause of such damage or injury or the means of
repairing the same is inaccessible to Tenant. Landlord shall not be liable or
responsible for any loss or damage to any property or person occasioned by
theft, fire, act of God, acts of third parties, public enemy, injunction, riot,
strike, insurrection, war, court order, requisition or order of governmental
body or authority, or other matter beyond the control of Landlord. In further
explanation of and not in limitation of the foregoing provisions of this ▇▇▇▇▇▇▇
▇, ▇▇▇▇▇▇▇▇ shall only remain liable for any damage to any property or any
injury to or death of any person in or about the Premises which may result from
the active negligence or willful acts or omissions of Landlord, or its agents,
or employees or contractors.
10. TRIPLE NET LEASE. This Lease is intended to be a "triple net" lease
and it should be interpreted accordingly.
11. TENANT'S ENVIRONMENTAL REPRESENTATIONS AND INDEMNIFICATION OF
LANDLORD. Tenant hereby agrees that:
11.1 Tenant acknowledges that its subsidiaries have owned the
Premises for an extended period of time prior to the Commencement Date.
Accordingly, it is Tenant's obligation at its sole cost and expense to
comply with all Environmental Laws with respect to Hazardous Substances
existing on the Premises on or prior to the Commencement Date whether or
not such is currently known. Such obligation, and any liability that
Tenant may have for any breach thereof, shall survive the termination or
expiration of this Lease.
11.2 In the event Tenant discovers or determines the existence on
the Premises of any condition resulting from Hazardous Substances that
were disposed, discharged, leaked, handled or otherwise present on the
Premises prior to the Commencement Date, the presence of which may
require investigation, removal or remedial action pursuant to any law,
Environmental Law or may be the basis for the assertion of any third
party claims, including claims of governmental entities, Tenant shall
promptly notify Landlord thereof and Tenant shall, at its sole cost and
expense, proceed with all due diligence as may be required by applicable
Environmental Laws with respect to Hazardous Substances existing on or
prior to the Commencement Date. In the event that Tenant fails to
proceed with due diligence, Landlord may, at its option, proceed to take
the appropriate action and shall be reimbursed by Tenant therefor.
11.3 Any Hazardous Substances used by Tenant or its agents,
employees, contractors, subtenants, assignees and invitees on, in, or
about the Premises will be contained,
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treated, stored, used and disposed of in a safe manner and in accordance
with all Environmental Laws.
11.4 Tenant will use, keep and maintain the Premises in
compliance with, and shall not cause or permit the Premises to be in
violation of, any Environmental Laws.
11.5 Neither Tenant nor its agents, employees, contractors,
subtenants, assignees and invitees will use the Premises in a manner
which causes any Hazardous Substance to be deposited, and will not
deposit any Hazardous Substance, except in compliance with Environmental
Laws, into the atmosphere, into the soil or into the ground water of the
Premises. If Tenant or its agents, employees, contractors, subtenants,
assignees or invitees shall cause or permit a "release," as such term is
defined in the Environmental Laws, unless the release occurs after
termination of the Lease, or from off-site, Tenant, upon actual
knowledge thereof, will promptly notify Landlord in writing of such
release and begin investigation and remediation of such release and
complete such remediation at Tenant's own cost and expense as required
by the Environmental Laws.
11.6 Tenant shall indemnify, defend and hold harmless Landlord,
its officers, directors, employees, shareholders, affiliates, successors
and assigns (the "Indemnitees") against any and all damages, claims
(including without limitation, third party claims of personal injury or
real or personal property damages), costs, losses (including losses of
value and income), legal, accounting, actions, causes of action,
consulting, engineering, investigation, remediation and removal costs,
and other expenses whether at law, in equity, or administrative
(including without limitation attorneys' fees and court costs)
(hereinafter collectively referred to as "Claims"), which may be imposed
upon, incurred by or asserted against any of the Indemnitees by any
other party or parties, including without limitation a governmental
entity, arising out of or in connection with the breach by Tenant of
Tenant's covenants in this Section 11. This obligation by Tenant to
indemnify, defend, and hold harmless the Landlord includes, without
limitation, costs incurred by the Indemnitees for or in connection with
any investigation of site conditions or any cleanup, remedial,
monitoring, restoration or closure work required by any federal, state,
or local governmental agency or political subdivision, or any third
party action, because of any Hazardous Substances present in the soil,
air, surface or ground water, on, under, or about the Premises,
including, without limitation, any sums paid in settlement of claims,
penalties, attorneys' fees, court costs, consultant and laboratory fees,
as a result of Tenant's and its agents', employees', contractors',
subtenants', assignees' and invitees' activities on or in connection
with the Premises, but excluding that portion of any damages to the
extent caused by Indemnitees or any of their respective agents.
11.7 Promptly upon becoming aware of any matter described above
to which the indemnity applies, Landlord shall provide Tenant with
notice of the same provided that any delay in providing such notice
shall not impair the indemnity hereunder unless the delay actually
causes prejudice to the Tenant, and the Indemnitees shall reasonably
cooperate with Tenant in the defense of the matter. Tenant's obligations
pursuant to the indemnity in Subsection 11.4 above shall survive the
termination or expiration of this Lease.
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11.8 As used herein, the term "Hazardous Substances" shall mean
all hazardous substances, hazardous wastes, hazardous materials, toxic
materials, or toxic substances and any other substances, including
asbestos, petroleum and its by-products, the remediation, disposal,
storage, production, or use of which is regulated by federal, state or
local laws, ordinances, regulations, permit conditions, administrative
orders and similar requirements pertaining to health, safety and the
environment, including, but not limited to, substances listed under the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980, 42 U.S.C. Section 9601 et seq.; the Hazardous Materials
Transportation Act, 42 U.S.C. Section 1801 et seq.; the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water
Act, 33 U.S.C. Section 1251 et seq.; the Safe Drinking Water Act, 42
U.S.C. Section 300f et seq.; the Clean Air Act, 42 U.S.C. Section 7401
et seq.; the California Hazardous Waste Control Law, Cal. Health and
Safety Code Section 25100 et seq.; and the ▇▇▇▇▇▇-Cologne Water Quality
Control Act, Cal. Water Code Section 13000 et seq., as each may be
amended from time to time (herein referred to as "Environmental Laws").
12. INDEMNIFICATION OF LANDLORD. Tenant shall defend, indemnify and hold
Landlord harmless from any and all claims, demands, judgments, damages,
liabilities, costs, expenses and losses, including attorneys' fees and court
costs, arising from Tenant's use of the Premises or use of the Premises by any
party holding under Tenant, or from the conduct of Tenant's business, or from
the conduct of the business of any party holding under Tenant, or from any
activity, work or things done in or about the Premises except to the extent
caused by the active negligence or willful misconduct of Landlord. Tenant
further agrees to defend, indemnify and hold Landlord harmless from any and all
claims, demands, judgments, damages, liabilities, costs, expenses and losses
arising from any breach or default on the part of Tenant in the performance of
any covenant or agreement on the part of Tenant to be performed pursuant to the
terms of this Lease. If any action or proceeding is brought against Landlord by
reason of any such matters, Tenant agrees to defend such action or proceeding at
Tenant's sole expense by counsel reasonably satisfactory to Landlord. If
Landlord receives insurance proceeds with respect to any claim or loss for which
it is insured pursuant to the terms of this Lease, Tenant shall reduce its
payment to Landlord pursuant to this Section 12 to the extent of such proceeds.
The provisions of this Section 12 shall survive the expiration or prior
termination of this Lease with respect to any claims or liability relating to
matters occurring after the Commencement Date and prior to such expiration or
termination.
13. INSURANCE.
13.1 Tenant shall, at Tenant's expense, obtain and keep in force
during the entire term of this Lease a Comprehensive General Liability
policy (including Premises Liability and Contractual Liability,
Occurrence form) insuring Landlord and Tenant against covered liability
arising out of the Premises or its use, occupancy or maintenance,
including all areas appurtenant thereto. Such insurance shall name
Landlord as an additional insured and shall provide coverage in limits
of at least $5,000,000 combined single limit for bodily injury or death
to any one person, $20,000,000 for bodily injury or death to any number
of persons in respect of any one accident or occurrence and $1,000,000
for property damage in respect of one accident or occurrence. Tenant may
maintain up to a $2,000,000 deductible on the insurance required in this
Subsection 13.1. The insurance coverage limits required under this
Section 13.1 shall be increased every three years to reflect any
increases in the Consumer
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Price Index for All Urban Consumers U.S. City Average, All Items (base
years 1982-84 = 100), published by the United States Department of
Labor, Bureau of Labor Statistics.
13.2 Tenant shall, at Tenant's expense, obtain and keep in force
during the entire term of this Lease a policy of insurance covering loss
or damage to all improvements, fixtures and equipment located upon or
affixed to the Parcels, including, without limitation, walls (interior
and exterior), foundations, ceilings, roofs (interior and exterior),
floors, windows, doors, plate glass and skylights located within the
Premises, all plumbing, electrical, elevator and lighting facilities and
equipment in, on or about the Parcels, all landscaping, driveways,
parking lots, fences and signs located on the Parcels and sidewalks and
parkways adjacent to the Parcels, and any personal property or fixtures
of Tenant located on or affixed to the Parcels, in the amount of the
full replacement value thereof, as the same may exist from time to time,
against (i) all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, and special extended
perils ("all risk" as such term is used in the insurance industry), and
(ii) flooding. Said insurance shall name Landlord as loss payee and
shall provide for payment of loss thereunder to Landlord and Tenant as
their interests may appear. Tenant may maintain up to a $500,000
deductible on the insurance required in this Subsection 13.2.
13.3 Tenant shall, at Tenant's expense, obtain and keep in force
during the entire term of the Lease a policy or policies of boiler and
machinery insurance, if applicable, in an amount not less than one
hundred percent (100%) of the actual replacement value thereof
(including the cost of debris removal but excluding foundations and
excavations and land).
13.4 Tenant may self-insure for the insurance required in
Subsections 13.1, 13.2 and 13.3 in an aggregate amount not to exceed
five percent (5%) of Tenant's tangible net worth (as determined by
certified financial statements not more than twelve (12) months old)
upon providing notice to Landlord and Tenant shall, to the extent
self-insured, be responsible for all amounts which would have been
payable by an insurer if Tenant had not elected to self-insure. All
deductibles shall be considered self-insurance and shall be subject to
all provisions in this Lease governing insurance coverage, including any
provisions concerning a waiver of subrogation.
13.5 Tenant shall, at Tenant's expense, obtain and keep in force
during the entire term of the Lease a policy or policies of Workers'
Compensation Insurance, including Employers' Liability Insurance, or
qualified self-insurance, which is in full compliance with the
applicable Workers' Compensation or similar laws.
13.6 Tenant shall deliver to Landlord certificates evidencing the
existence and amounts of such insurance, with loss payable clauses as
required by this Section 13. No such policy shall be cancelable or
subject to reduction of coverage or other modification except after
thirty (30) days' prior written notice to Landlord. Tenant shall, at
least thirty (30) days prior to the expiration of such policies, furnish
Landlord with renewals or "binders" thereof, or if Tenant fails to
furnish such renewals, then Landlord may, upon ten days written notice
to Tenant, order such insurance and charge the cost thereof to Tenant,
which amount shall be payable by Tenant upon demand.
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13.7 Tenant shall not carry concurrent insurance insuring against
the risks against which insurance is required hereunder unless such
concurrent insurance satisfies all of the requirements for Tenant's
insurance set forth in this Lease (including but not limited to naming
Landlord as an additional insured).
13.8 So long as there exists a sublessee of any portion of the
Premises which is required, by the terms of its sublease, to carry
insurance which is no less comprehensive than that described above, and
which names Landlord as an additional insured thereon or loss payee
thereof, as the case may be, then Tenant shall have no obligation during
the term of such sublease to carry the insurance required hereunder with
respect to such portion of the Premises as long as such sublessee
actually maintains such required insurance.
14. WAIVER OF SUBROGATION. Except as otherwise provided in this Lease,
to the extent they receive payment for any loss or damage arising out of or
incident to perils occurring in, on or about the Premises, Tenant and Landlord
each hereby release and relieve the other, and waive their entire right of
recovery against the other for such loss or damage, whether due to the
negligence of Landlord or Tenant or their agents, employees, contractors and/or
invitees, but only to the extent permitted by the parties' insurance carriers.
Tenant and Landlord shall use their best efforts to obtain waiver of subrogation
endorsements from such carrier or carriers.
15. UTILITIES AND SERVICES. Tenant shall, during the entire term of this
Lease, procure and pay for all utilities and services supplied to the Premises,
including but not limited to water, gas, heat, light, power, telephone,
security, and janitorial services, together with any taxes thereon.
16. REAL PROPERTY TAXES. Tenant shall pay directly to each County Tax
Collector, or other appropriate assessing authority, as it becomes due and not
less than ten (10) days before delinquency, the amount of the Real Property Tax,
as defined in Subsection 16.1, applicable to the Premises during the term of
this Lease. Notwithstanding the foregoing, Tenant shall have no obligation to
pay for the Real Property Taxes due for the period prior to the Commencement
Date, even if those Real Property Taxes are not assessed until after the
Commencement Date. Further, Tenant shall have no obligation to pay any penalties
or interest assessed with respect to the Premises for a period prior to the
Commencement Date, even if such penalties or interest are not assessed until
after the Commencement Date. If payments made by Tenant are applied by the
assessing authority to unpaid Real Property Taxes (including without limitation,
any interest or penalties thereon) respecting a period prior to the Commencement
Date, then Landlord shall be responsible for the Real Property Taxes (and all
resulting interest and penalties thereon) which Tenant had attempted to pay, but
which were diverted to pay earlier Real Property Taxes (including without
limitation, all interest and penalties included therein). If any Real Property
Taxes constituting assessments are, at the election of the taxpayer, payable in
installments, Landlord shall make an election to make such payments in
installments and Tenant shall be responsible for the payment of the installments
of such Real Property Taxes as shall be due and payable during the term of this
Lease.
16.1 As used herein, "Real Property Tax" shall mean any form of
real estate tax or assessment, general, special, ordinary or
extraordinary, and any license fee, commercial rental tax, improvement
bond or bonds, levy or tax (other than inheritance, personal income or
estate taxes) imposed on the Premises by any authority having the direct
or indirect power to tax, including any city, state or federal
government or any school, agricultural, sanitary, fire,
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street, drainage or other improvement district thereof, as against any
legal or equitable interest of Landlord in the Premises or in the real
property of which the Premises are a part, as against Landlord's right
to rent or other income therefrom, and as against Landlord's business of
leasing the Premises, including any tax, fee, levy, assessment or charge
(i) in substitution of, partially or totally, any tax, fee, levy,
assessment or charge hereinabove included, (ii) the nature of which was
hereinbefore included within this definition, or (iii) which is imposed
by reason of this lease transaction, any modifications or changes
hereto, or any transfers hereof.
16.2 During the term of this Lease, Tenant shall reimburse to
Landlord, upon presentation of a written invoice therefor, any and all
taxes payable by Landlord (other than net income taxes) whether or not
now customary or within the contemplation of the parties hereto: (i)
upon, allocable to, or measured by or on the gross or net rent payable
hereunder, including without limitation any gross income tax or excise
tax levied by any State, any political subdivision thereof, or the
Federal Government with respect to the receipt of such rent; or (ii)
upon or with respect to the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the
Premises or any portion thereof; or (iii) upon or measured by the
Tenant's gross receipts or payroll or the value of Tenant's equipment,
furniture, fixtures, and other personal property of Tenant or leasehold
improvements, alterations, additions, located in the Premises.
16.3 Tenant shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, equipment and all
other personal property of Tenant contained in the Premises or
elsewhere. Tenant shall cause such trade fixtures, furnishings,
equipment and all other personal property to be assessed and billed
separately from the real property of Landlord. If any of Tenant's said
personal property shall be assessed with Landlord's real property,
Tenant shall pay Landlord the taxes attributable to Tenant within ten
(10) days after receipt of a written statement setting forth the taxes
applicable to Tenant's property.
16.4 Tenant may contest the imposition of any taxes, including
without limitation, the current assessment, and if required by law,
Landlord shall join in any such proceedings brought by Tenant. However,
Tenant shall pay the costs and fees of the proceedings. Upon the final
determination of any proceeding or contest, Tenant shall pay the taxes
due, together with all costs, charges, interest and penalties incidental
to the proceedings if Tenant does not pay the taxes when due and
contests such taxes. Tenant shall not be in default under the Lease for
nonpayment of such taxes so long as the taxes are paid under protest if
such payment under protest is necessary to prevent the property from
being sold under a "tax sale" or similar enforcement proceeding.
17. DAMAGE OR DESTRUCTION.
17.1 In the event that any structure located on the Parcels is
damaged or destroyed, then Tenant shall repair or rebuild such structure
to substantially the condition in which it was immediately prior to the
casualty, but in no event shall Tenant be required to repair or rebuild
non-functional or decorative items (e.g., statues).
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17.2 Tenant shall commence to rebuild or repair the Premises
promptly after such damage or destruction, provided that all permits
required for such work have been obtained at the time necessary with the
Tenant using reasonable diligence to obtain such permits, and shall
proceed with diligence to complete the restoration. If Tenant is not
able to obtain permits to restore the Premises as required hereunder,
then Tenant shall repair or rebuild the Premises as required hereunder
to the maximum extent to which it can obtain permits to do so. Tenant
shall not have the right to terminate this Lease as the result of any
damage to or destruction of the Premises, and Tenant hereby waives the
right to do so under any applicable statute, code, case law or other
legal doctrine. This Lease shall remain in full force and effect, and
Tenant shall be entitled to an equitable abatement of the Rent during
the time and to the extent any portion of the Premises is unfit for
occupancy; provided, however, that the amount of such abatement shall
not exceed the amount of loss of rents or business interruption
insurance proceeds, if any, payable to Landlord by reason of such damage
or destruction. In the event Tenant is obligated to rebuild the Premises
pursuant to this Section 17, then all insurance proceeds arising out of
insurance coverage procured by Landlord (other than loss of rents
insurance or business interruption insurance), if any, shall be made
available to Tenant to pay for the cost of such repair, rebuilding or
restoration.
18. CONDEMNATION.
18.1 In the event that all or any portion of the Premises shall
be lawfully condemned or taken in any manner for any public or
quasi-public use, or conveyed by Landlord in lieu thereof (a "Taking"),
Tenant may require that Landlord rebuild or repair the portion of the
Premises taken so that the same will be in substantially the same
condition it was prior to the Taking. Notwithstanding the foregoing,
Landlord shall only be obligated to rebuild or restore the portion of
the Premises subject to the Taking to the extent of the award Landlord
receives for such Taking pursuant to Section 18.2.
18.2 Upon a permanent Taking, Landlord and Tenant shall be
entitled to the following portions of the award (less the costs and fees
incurred in the collection thereof) in no order of priority:
(a) To Tenant, an amount equal to the fair market value of
its personal property and fixtures that it is entitled to remove
at the expiration or earlier termination of this Lease and that
are condemned as part of the Taking;
(b) To Tenant, an amount equal to the damages Tenant
suffers as a result of the interruption of its business from the
Taking; and
(c) To Landlord, the balance of the award.
In no event shall Tenant be entitled to any award for the value of its
leasehold interest. If Landlord and Tenant are not able to obtain
separate awards from the condemning authority for the above amounts,
then such amounts shall be determined by the mutual agreement of the
parties, or if the parties are unable to agree, then by binding
arbitration in accordance with the rules of the American Arbitration
Association then in effect.
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18.3 In the event of a permanent Taking, the Rent shall be
equitably abated in proportion to the Base Rent fairly allocable to the
part of the Premises so taken, and Landlord shall be obligated to
restore the Premises only to the extent of any severance damages
received as part of the condemnation award. The amount of the abatement
shall be determined by the mutual agreement of the parties, or if the
parties are unable to agree, then by binding arbitration in accordance
with the rules of the American Arbitration Association then in effect.
18.4 No temporary Taking of the Premises and/or of Tenant's
rights therein or under this Lease shall terminate this Lease or give
Tenant any right to abatement of Rent hereunder. Any award made to
Tenant by reason of any such temporary Taking shall belong entirely to
Tenant and Landlord shall not be entitled to share therein.
19. DEFAULT.
19.1 The following events shall be deemed to be events of default
by Tenant under this Lease:
(a) Tenant shall fail to make any payment of Rent or any
other payment required to be made by Tenant hereunder, as and
when due, and such failure shall continue for a period of five
(5) business days after receiving written notice of said failure;
or
(b) Tenant shall fail to comply with any term, provision
or covenant of this Lease other than a default pursuant to
Subsection (a) of this Section, and shall not cure such failure
within thirty (30) days of receiving written notice of such
failure provided, however, that if the default cannot reasonably
be cured within such 30-day period, including by reason of having
to regain possession of the Premises from a sublessee, Tenant
shall not be in default of this Lease if Tenant shall commence to
cure the default, including commencing an action to regain
possession of the Premises, within said 30-day period and
diligently continues to prosecute the cure; or
(c) The leasehold interest of Tenant shall be levied upon
under execution or be attached by process of law or Tenant shall
fail to contest diligently the validity of any lien or claimed
lien and give sufficient security to Landlord to insure payment
thereof or shall fail to satisfy any judgment rendered thereon
and have the same released, and such default shall continue for
thirty (30) days after written notice thereof to Tenant; or
(d) Tenant shall become insolvent, admit in writing its
inability to pay its debts generally as they become due, file a
petition in bankruptcy or a petition to take advantage of any
insolvency statute, make an assignment for the benefit of
creditors, make a transfer in fraud of creditors, apply for or
consent to the appointment of a receiver of itself or of the
whole or any substantial part of its property, or file a petition
or answer seeking reorganization or arrangement under the federal
or any state bankruptcy laws, as now in effect or hereafter
amended, or any other applicable law or statute of the United
States or any state thereof, or have filed against it a case or
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proceeding under any such law or statute which is consented to or
acquiesced in by Tenant, results in the entry of an order for
relief, or remains undismissed for ninety (90) days; or
(e) A court of competent jurisdiction shall enter an
order, judgment or decree adjudicating Tenant a bankrupt, or
appointing a receiver of Tenant, or of the whole or any
substantial part of its property, without the consent of Tenant,
or approving a petition filed against Tenant seeking
reorganization or arrangement of Tenant under the bankruptcy laws
of the United States, or any state thereof, as now in effect or
hereafter amended, and such order, judgment or decree shall not
be vacated or set aside or stayed within ninety (90) days from
the date of entry thereof.
19.2 Landlord's failure to perform any of its obligations under
this Lease shall constitute a default by Landlord under the Lease if the
failure shall continue for thirty (30) days after written notice of the
failure from Tenant to Landlord. If the required performance cannot be
completed within thirty (30) days, Landlord's failure to perform shall
constitute a default under the Lease unless Landlord undertakes to cure
the failure within thirty (30) days and diligently prosecutes the cure
to completion as soon as reasonably possible.
20. REMEDIES.
20.1 In case of an event of default by Tenant hereunder (as
defined in Section 19), Landlord shall not terminate this Lease unless
such default is not cured as provided herein and is a "material
default." For purposes of this Lease, a "material default" shall mean
(i) a default described in Subsection 19.1(a), (ii) the failure to carry
insurance required hereunder to be carried by Tenant, (iii) the failure
to repair or maintain the Premises as required under the Lease, (iv) a
default described in Subsection 19.1(b-e) that is likely to result in a
cost, loss of value or liability to Landlord of five million dollars
($5,000,000) or more, or (v) a material incurable default. In
circumstances where Landlord has no right to terminate this Lease or
where Landlord chooses not to terminate this Lease, Landlord shall have
all other remedies available at law or in equity, including the right to
▇▇▇ for rent as it comes due and the right to obtain damages from Tenant
for breach of contract.
20.2 Upon the occurrence of any material default (as defined in
Subsection 20.1), Landlord shall have, in addition to any other remedies
available to Landlord at law or in equity, the option to terminate this
Lease by written notice thereof to Tenant, in which event Tenant shall
immediately surrender the Premises to Landlord, and if Tenant fails to
do so, Landlord may, without prejudice to any other remedy which it may
have for possession or arrearages in rent, enter upon and take
possession of the Premises and expel or remove Tenant and any other
person who may be occupying the Premises or any part thereof in
accordance with applicable state law, without being liable for
prosecution or any claim or damages therefor; and Landlord may recover
from Tenant the following:
(a) The worth at the time of award of any unpaid Rent
which has been earned at the time of such termination (as used in
this subparagraph (a) and (b) of this Section 20, the "worth at
the time of award" shall be computed by allowing interest from
the date the sums became due at the lesser of (i) the 30-day
LIBOR rate (as
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published in the Wall Street Journal) plus 600 basis points (the
"Default Interest Rate"), or (ii) the maximum rate permitted by
law); plus
(b) The worth at the time of award of the amount by which
the unpaid Rent which would have been earned after termination
until the time of award exceeds the amount of such rental loss
that Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of award of the amount by which
the unpaid Rent for the balance of the Term after the time of
award exceeds the amount of such rental loss that Tenant proves
could have been reasonably avoided (as used in this subparagraph
(c), the "worth at the time of award" shall be computed by
discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus 1%); plus
(d) Any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to
perform its obligations under this Lease or which in the ordinary
course of things would be likely to result therefrom,
specifically including, but not limited to, attorneys' fees and
court costs, brokerage commissions and advertising expenses
incurred; and
(e) At Landlord's election, such other amounts in addition
to or in lieu of the foregoing as may be permitted from time to
time by applicable law.
20.3 In addition to the remedies provided above, Landlord has the
remedy described in California Civil Code Section 1951.4 (lessor may
continue lease in effect after lessee's breach and abandonment and
recover rent as it becomes due, if lessee has right to sublet or assign,
subject only to reasonable limitations).
20.4 Upon a default of Tenant hereunder, Landlord, upon ten (10)
days written notice, may cure such default of Tenant and Tenant shall,
immediately upon demand, reimburse Landlord for any and all reasonable
expenses incurred by Landlord to cure such default.
20.5 No act by Landlord shall terminate this Lease other than the
written notice specified above. No waiver by Landlord of any violation
or breach of any of the terms, provisions and covenants herein contained
shall be deemed or construed to constitute a waiver of any other or
later violation or breach of the same or any other of the terms,
provisions, and covenants herein contained. Delay by Landlord in
enforcement of one or more of the remedies herein provided upon an event
of default shall not be deemed or construed to constitute a waiver of
such default. The acceptance of any Rent hereunder by Landlord following
the occurrence of any default, whether or not known to Landlord, shall
not be deemed a waiver of any such default, except only a default in the
payment of the Rent so accepted.
20.6 Tenant waives any right to terminate this Lease or to
withhold Rent on Landlord's default under this Lease.
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21. INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly provided
herein, any amount due to Landlord which is not paid when due shall bear
interest at the Default Interest Rate (as defined in Section 20.2(a)), but in no
event greater than the maximum amount permitted to be contracted for under
applicable law. Payment of such interest shall not excuse or cure any default by
Tenant under this Lease.
22. HOLDING OVER. Tenant shall pay Landlord for each day Tenant retains
possession of the Premises or part thereof after termination hereof by lapse of
time or otherwise the Rent prorated on a daily basis and all damages and
expenses sustained by Landlord by reason of such retention as provided in this
Lease. Tenant hereby indemnifies and holds Landlord harmless from any loss or
liability resulting from such holding over and delay in surrender. If Landlord
gives notice to Tenant of Landlord's election thereof, such holding over shall
constitute renewal of this Lease for a period of time from month-to-month at One
Hundred Twenty Percent (120%) of the Base Rent, but if the Landlord does not so
elect, acceptance by Landlord of rent after such termination shall not
constitute a renewal. This provision shall not be deemed to waive Landlord's
right of reentry or any other right hereunder or at law.
23. QUIET ENJOYMENT. Landlord represents and warrants that it has full
right and authority to enter into this Lease and that Tenant, while paying the
rental and performing its other covenants and agreements herein set forth, shall
peaceably and quietly have, hold and enjoy the Premises for the Term without
interference from Landlord subject to the terms and provisions of this Lease.
Landlord shall not be liable for any interference or disturbance by third
persons, nor shall Tenant be released from any of the obligations of this Lease
because of such interference or disturbance.
24. ESTOPPEL CERTIFICATE. Within fifteen (15) days following any written
request which Landlord may make from time to time, Tenant shall execute and
deliver to Landlord or Landlord's mortgagee or prospective mortgagee, a sworn
statement certifying: (a) the Commencement Date, (b) the fact that this Lease is
unmodified and in full force and effect (or, if there have been modifications
hereto, that this Lease is in full force and effect, as modified, and stating
the date and nature of such modifications), (c) the date to which the Rent and
other sums payable under this Lease have been paid, (d) the fact that, to
Tenant's actual knowledge, there are no current defaults under this Lease by
either Landlord or Tenant except as specified in Tenant's statement, and (e)
such other matters reasonably requested by Landlord. Landlord and Tenant intend
that any statement delivered pursuant to this Section 24 may be relied upon by
any mortgagee, beneficiary, or purchaser of the Premises or any interest
therein. Within fifteen (15) days following any written request which any
mortgagee or prospective mortgagee may make from time to time (but not more
often than twice in any twelve (12) month period), Landlord shall execute and
deliver to such mortgagee or prospective mortgagee, a sworn statement certifying
as to the same matters described above, except that clause (e) shall refer to
matters requested by the mortgagee or prospective mortgagee. Failure to comply
with the provisions of this Section 24 shall constitute an event of default
under this Lease.
25. SURRENDER OF PREMISES. Tenant shall, upon the expiration or prior
termination of the Term, surrender to Landlord the Premises and all repairs,
changes, alterations, fixtures, additions, and improvements thereto in good
order and condition, reasonable wear and tear excepted. Notwithstanding the
foregoing, Tenant shall have the option, in its sole discretion, to remove any
or all personal property owned by Tenant and any or all fixtures installed on
the Premises by ▇▇▇▇▇▇,
▇▇
▇▇
provided that Tenant shall restore any damage to the Premises resulting from
such removal. Tenant shall indemnify Landlord against any loss or liability
resulting from delay by Tenant in so surrendering the Premises, including
without limitation any claims made by any succeeding tenant founded on such
delay.
26. NOTICES. All notices and demands which may or are required to be
given by either party to the other hereunder shall be in writing. All notices
and demands by the Landlord to the Tenant shall be personally delivered or sent
by United States certified mail, postage prepaid, or by prepaid express mail or
overnight courier addressed to The Times Mirror Company, 1 Times ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, or such other
person(s) or to such other place(s) as Tenant may from time to time designate in
a notice to Landlord. All notices and demands to Landlord shall be personally
delivered or sent by United States certified mail, postage prepaid, or by
prepaid express mail or overnight courier addressed to TMCT, LLC, C/O The Times
Mirror Company, 1 Times ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇., C/▇ ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other
person(s) or to such other place(s) as Landlord may from time to time designate
in a notice to Landlord. Notices and demands delivered personally shall be
deemed given on the date of delivery; notices and demands delivered by mail
shall be deemed given three (3) days after deposit in the United States mail;
and notices and demands delivered by express mail or overnight courier shall be
deemed given one (1) day after deposit.
27. OPTION TO PURCHASE.
27.1 Tenant shall have the option to purchase the entire Premises
(but not less than the entirety) upon the expiration or earlier
termination of this Lease; provided, however, that Tenant shall not have
the Option to purchase the Premises if this Lease terminates due to a
default of Tenant unless such termination was the result of a default of
Tenant that was commercially impracticable to cure.
27.2 To exercise the option to purchase the Premises, Tenant must
provide written notice to Landlord not more than eighteen (18) months
and not less than three (3) months prior to the expiration of the Lease;
except that in the event of the early termination of the Lease due to an
uncured default of Tenant that was commercially impractical to cure,
Tenant may exercise the option within thirty (30) days following such
termination.
27.3 Tenant's purchase of the Premises pursuant the option shall
be in cash at fair market value, which shall be determined as follows:
27.3.1 Within thirty (30) days after Landlord receives
Tenant's written notice exercising the option, Landlord and
Tenant shall mutually agree upon and appoint one appraiser to
determine the fair market value of the Premises. If Landlord and
Tenant are unable to agree upon a single appraiser to appraise
the Premises within such thirty day period, then Landlord and
Tenant shall each appoint an appraiser within sixty (60) days
after Landlord receives Tenant's written notice exercising the
option to determine the fair market value of each Property (a
single appraiser may appraise more than one Property and Landlord
and Tenant shall each use best efforts to minimize the total
number of appraisers appointed), and notice of each such
appointment shall be given
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to the other party. For each Property, the appraisers thus
appointed shall proceed to determine such fair market value for
such Property within thirty (30) days after notice of their
appointment.
27.3.2 If the parties were unable to agree on a single
appraiser to appraise the Premises, then within fifteen (15) days
after the parties have each appointed appraisers pursuant to
Subsection 27.3.1, the appraisers appointed for each Property
shall join to appoint a third appraiser to appraise such Property
and if they fail so to appoint such third appraiser within such
period, the third appraiser shall be appointed by the court
exercising such functions in the jurisdiction in which the
Property is located unless otherwise agreed in writing by the
parties, and such third appraiser shall then individually
determine the fair market value for such Property within thirty
(30) days of notice of appointment.
27.3.3 When calculating the fair market value for any
Property, each appraiser shall appraise the Property as if any
capital improvements made to the Property by Tenant had not been
made. For purposes of this Lease only, the term "capital
improvements" shall exclude repairs and replacements which are
intended to preserve the continued functionality of the
improvements located on the Property at issue without
substantially upgrading the functionality of such improvements or
the Property, but shall include improvements which (i) are
identifiable new improvements, or (ii) are replacements of
existing improvements located on the Property that so
substantially upgrade the functionality of the replaced
improvements as to be substantially equivalent to an identifiable
new improvement. For example, the replacement of the roof on a
building located on a Property with a roof of similar quality, or
the renovation of existing office space, would not be considered
a capital improvement for purposes of this Section 27.
Conversely, the installation of a kitchen in a vacant basement
(an identifiable new improvement), or the complete renovation of
an auditorium including a substantial increase in seating
capacity, stage size and quality (substantially equivalent to an
identifiable new improvement), would be considered capital
improvements for purposes of this Lease.
27.3.4 If Landlord and Tenant fail to appoint a single
appraiser to appraise the Premises, then the average of the fair
market values contained in the two closest appraisals shall
constitute the fair market value of such Property, and such
determination shall be binding upon each of the parties. In the
event that there are not two closest appraisals (e.g., if the
middle appraisal is exactly halfway between the highest and
lowest appraisals), then the middle appraisal shall be binding
upon each of the parties. The fair market value of the Premises
shall be equal to the sum of the fair market values of each
Property.
27.3.5 All appraisers appointed hereunder shall be
competent, qualified by training and experience in the County in
which the Property(ies) they are appraising is located,
disinterested and independent and shall be members in good
standing of the American Institute of Real Estate Appraisers or
its successor and all appraisal reports shall be rendered in
writing and signed by the appraiser or appraisers making the
report.
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27.4 The conveyance of the Premises shall be to Tenant or its
designated nominee(s), shall be on an "as-is" and "with all faults"
basis without warranties of any kind (except that Landlord shall
represent and warrant that there are no liens, mortgages or other
encumbrances on the Premises that were not present when Landlord
obtained title to the Premises, other than those created by, caused by
or approved by Tenant or suffered by Landlord through no fault of
Landlord), and shall occur at the expiration of the Lease or, in the
case of the earlier termination thereof, as soon as reasonably possible
after such termination.
27.5 Landlord shall be solely responsible for all transfer and
recording fees and costs in conjunction with a conveyance of the
Premises to Tenant. Tenant shall be solely responsible for the cost of
any title insurance if the same is desired by Tenant.
28. DEFINED TERMS AND HEADINGS. The Section and paragraph headings
herein are for convenience of reference and shall in no way define, increase,
limit, or describe the scope or intent of any provision of this Lease. The term
"Landlord" in these presents shall include Landlord, its successors, and
assigns. Any indemnification of, insurance of, or option granted to Landlord
shall also benefit, include or be exercisable by Landlord's trustee,
beneficiary, agents and employees, as the case may be. The term "Tenant" shall
include Tenant and its successors and assigns, subject to any limitation on
assignment provided in this Lease. Tenant agrees to furnish promptly upon demand
a corporate resolution, proof of due authorization by partners, or other
appropriate documentation evidencing the due authorization of Tenant to enter
into this Lease.
29. ENFORCEABILITY. If for any reason whatsoever any of the provisions
hereof shall be unenforceable or ineffective, all of the other provisions shall
be and remain in full force and effect.
30. COMMISSIONS. Each of the parties (i) represents and warrants to the
other that neither party has dealt with any broker or finder in connection with
this Lease; and (ii) indemnifies and holds the other harmless from any and all
losses, liability, costs or expenses (including attorneys' fees), incurred as a
result of an alleged breach of the foregoing warranty.
31. ATTORNEYS' FEES. In the event that any action or proceeding is
brought to enforce any term, covenant or condition of this Lease on the part of
Landlord or Tenant, the prevailing party in such litigation shall be entitled to
reasonable attorneys' fees to be fixed by the court in such action or
proceeding.
32. TIME AND APPLICABLE LAW. Time is of the essence of this Lease and
all of its provisions. This Lease shall in all respects be governed by the laws
of the State of California (except for its choice of law provisions) to the
fullest extent permitted by each State in which a Parcel is located. Landlord
and Tenant each have their principal places of business located in the State of
California.
33. SUCCESSORS AND ASSIGNS. The terms, covenants and conditions
contained herein shall be binding upon and inure to the benefit of the permitted
heirs, successors, executors, administrators, and assigns of the parties hereto.
In the event Landlord sells the Premises or any portion thereof, Landlord shall
automatically be relieved of liability for obligations under this Lease arising
on and after the date title is conveyed to the purchaser.
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34. ENTIRE AGREEMENT. This Lease, together with its exhibits, contains
all agreements of the parties hereto and supersedes any previous negotiations.
There have been no representations made by the Landlord or understandings made
between the parties regarding the leasing of the Premises by Tenant other than
those set forth in this Lease and its exhibits. This Lease may not be modified
except by a written instrument duly executed by the parties hereto.
35. RECORDATION. Tenant may record this Lease or any memorandum hereof
without the prior written consent of Landlord. If requested by Tenant, Landlord
shall execute a memorandum of this Lease in recordable form in the form of
Exhibit B hereto.
36. EXHIBITS. Attached to this Lease and a part hereof are exhibits
identified as follows: Exhibit A (Legal Description), Exhibit B (Memorandum of
Lease).
37. COVENANTS AND CONDITIONS. Each provision of this Lease performable
by Tenant shall be deemed both a covenant and a condition.
38. SURVIVAL. Except as otherwise expressly provided herein, all
obligations, covenants, warranties and representations shall survive the
expiration or prior termination of this Lease.
39. NO JOINT VENTURE. The parties intend by this Lease to establish the
relationship of Landlord and Tenant only, and do not intend to create a
partnership, joint venture, joint enterprise or any business relationship other
than that of Landlord and Tenant.
40. CALENDAR DAYS AND BUSINESS DAYS. All time periods described in this
Lease in terms of days shall mean calendar days unless otherwise provided
herein. If any last day for performance of any act falls upon a day either of
the parties is not open for business, such last day will be the next following
business day.
41. SUBORDINATION, NONDISTURBANCE AND ATTORNMENT. Tenant shall upon
demand execute, acknowledge and deliver to Landlord, any and all instruments
that may be reasonably necessary to subordinate this Lease and all rights of
Tenant hereunder to the lien of any mortgage or deed of trust on the Premises
created pursuant to a new loan or refinancing of an existing loan entered into
by Landlord after the date hereof provided that the beneficiary thereunder
executes a nondisturbance agreement in recordable form and in form and substance
acceptable to Tenant and any Mortgagee whereby the beneficiary agrees (a) that
in the event it should become necessary to foreclose said deed of trust it will
cause the sale of the Premises to be made subject to this Lease, including
without limitation, the provisions for the Additional Terms (provided that the
Tenant is not in default past any applicable notice and grace period under this
Lease at the time of such foreclosure), and (b) in the event of condemnation or
damage by fire, casualty or other causes as covered by fire and extended
coverage insurance, the condemnation award or proceeds of such insurance shall
be used for reconstruction or otherwise disbursed as provided in this Lease
notwithstanding any provision in the mortgage or deed of trust to the contrary.
42. COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument.
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43. WAIVER. Neither Landlord nor Tenant shall be deemed to have waived
the default or breach of any term, covenant or condition of this Lease by the
other party unless such waiver shall be in writing and signed by the party
charged with such waiver. The acceptance of Rent or any other payment by
Landlord shall not be deemed a waiver of any default or breach by Tenant. No
waiver by Landlord or Tenant of any default or breach of any term, covenant or
condition of this Lease by the other party shall be deemed to be a waiver of any
other term, covenant or condition of this Lease, or of any subsequent default or
breach by the other party of the same term, covenant or condition of this Lease.
44. LANDLORD'S ACCESS. Landlord and Landlord's agents shall have the
right to enter the Premises at any time, in the case of an emergency, and
otherwise at reasonable times and upon reasonable notice for the purpose of
showing the same to prospective purchasers, lenders, or lessees, and for other
reasonable and proper purposes.
45. BUSINESS IMPROVEMENT DISTRICTS.
45.1 One of the Properties located in California is currently
subject to an annual assessment by the City of Los Angeles because the
Property is part of a business improvement district which has as its
primary purpose the improvement of the neighborhood in which such
Property is located (a "Business Improvement District"). The Property is
subject to such Business Improvement District pursuant to a vote in
which landowners in the neighborhood voted to form the Business
Improvement District and subject their properties to the annual
assessment.
45.2 Tenant may, with Landlord's consent (which shall not be
unreasonably withheld, delayed or conditioned), vote in favor of
establishing, continuing or terminating any Business Improvement
District with respect to any Property. Landlord agrees to promptly
execute any documentation or take any other action reasonably necessary
to vote to establish, continue or terminate any Business Improvement
District pursuant to the terms of this Section 45. Tenant acknowledges
that it is required to pay all fees, costs and assessments associated
with any Business Improvement District which accrue during the Term of
this Lease.
The parties hereto have executed this Lease as of the date first above
written.
"LANDLORD"
TMCT, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: THE TIMES MIRROR COMPANY, its
Managing Member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Title: Senior Vice President and Chief
Financial Officer
--------------------------------------
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"TENANT"
THE TIMES MIRROR COMPANY,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Title: Senior Vice President and
Chief Financial Officer
-------------------------------------
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