Exhibit 10.4


 


FOURTH AMENDMENT
TO AGREEMENT OF SUBLEASE (NYT)


 


 


By and Between


 


 


42ND ST. DEVELOPMENT PROJECT, INC.,


as Landlord


 


and


 


620 EIGHTH NYT
(NY) LIMITED PARTNERSHIP,


as Tenant


 


 


Premises:


 


 


Block:  1012


 


Lots:   1001,
1003,  and 1009 through 1035  (formerly
part of Lot 1)


 


Address


 


620-628 8th Avenue


263-267 and
241-261 West 40th Street


242-244 West 41st Street


231-235 West 40th Street


248-256, 260-262
and 268 West 41st Street


634 and 630-632 8th Avenue


 


Borough of
Manhattan


County, City and
State of New York


 


RECORD AND RETURN
TO:


 


DLA Piper LLP (US)


1251 Avenue of the
Americas


New York, New
York  10020

Attention:  Marc Hurel, Esq.


 

















 


FOURTH AMENDMENT
TO AGREEMENT OF SUBLEASE (NYT)


 


THIS FOURTH
AMENDMENT TO AGREEMENT OF SUBLEASE (NYT) (this “Amendment”)
is made as of the 6th day of March, 2009, by and between 42ND ST. DEVELOPMENT
PROJECT, INC. (“42DP”), a subsidiary of New York State Urban Development
Corporation (“UDC”) d/b/a Empire State Development Corporation (“ESDC”),
a corporate governmental agency of the State of New York constituting a
political subdivision and public benefit corporation, having an office at 633
Third Avenue, 33rd floor,
New York, New York 10017, as landlord (in such capacity, “Landlord”),
and 620 EIGHTH NYT (NY) LIMITED PARTNERSHIP, a Delaware limited partnership,
having an office address at c/o W.P. Carey & Co. LLC, 50 Rockefeller
Plaza, 2nd Floor, New York, New York, 10020, as tenant (in such capacity, “Tenant”).


 


W  I 
T  N  E 
S  S  E 
T  H  :


 


WHEREAS,
Landlord and The New York Times Building LLC (“NYTB”) entered into that
certain Agreement of Lease dated as of December 12, 2001, as amended by
letter dated April 8, 2004 (the “Initial Ground Lease”), with
respect to certain land and improvements more particularly described in the
Initial Ground Lease, a memorandum of which was recorded October 24, 2003
in the Office of the City Register of the City of New York (the “Office of
the City Register”) as CRFN 2003000433122;


 


WHEREAS,
NYTB, as landlord, entered into


 


(a)                                  that certain Agreement of Sublease (NYT)
dated as of December 12, 2001 with NYT Real Estate Company LLC (“NYTRE”),
as tenant, a memorandum of which was recorded October 24, 2003 as CRFN
2003000433125 in the Office of the City Register (the “Initial NYTC Sublease”),  which Initial NYTC Sublease was amended by
First Amendment to Agreement of Sublease (NYT) dated as of August 15, 2006
between Landlord and NYTRE and recorded in the Office of the City Register of
the City of New York on November 20, 2006 as CRFN 2006000644735, and by
Second Amendment to Agreement of Sublease (NYT) dated as of January 29,
2007 between Landlord and NYTRE and recorded in the Office of the City Register
of the City of New York on February 22, 2007 as CRFN 2007000100157, and by
Third Amendment to Agreement of Sublease (NYT) (the “Third Amendment”)
dated as of March 6, 2009 between Landlord and NYTRE and recorded in the
Office of the City Register of the City of New York on March     ,
2009 as CRFN                                   ,
the tenant’s interest in which Initial NYTC Sublease as so amended was assigned
to and assumed by Tenant pursuant to that certain Assignment and Assumption of
Sublease dated as of March 6, 2009 between NYTRE, as assignor, and Tenant,
as assignee, and recorded in the Office of the City Register of the City of New
York on March     , 2009 as CRFN                                   
(the Initial NYTC Sublease, as so amended and assigned and as further amended
by this Amendment, the “NYTC Sublease”);


 


(b)                                 that certain Agreement of Sublease (Office)
dated as of December 12, 2001 with FC Lion LLC (“FC Lion”), as
tenant, a memorandum of which was recorded October 24, 2003 as CRFN
2003000433123 in the Office of the City Register (the “Initial FC Office


 

















 


Sublease”), the tenant’s interest in which Initial FC
Office Sublease was assigned to and assumed by FC Eighth Ave., LLC, a Delaware
limited liability company (“FC Eighth”) pursuant to that certain
Assignment and Assumption of Sublease Agreement dated as of August 15,
2006 between FC Lion, as assignor, and FC Eighth, as assignee, and recorded in
the Office of the City Register of the City of New York on November 20,
2006 as CRFN 2006000644730, and which Initial FC Office Sublease was amended by
First Amendment to Agreement of Sublease (Office) dated as of August 15,
2006 between Landlord and FC Eighth and recorded in the Office of the City
Register of the City of New York on November 20, 2006 as CRFN
2006000644733, by Second Amendment to Agreement of Sublease (Office) dated as
of January 29, 2007 between Landlord and FC Eighth and recorded in the
Office of the City Register of the City of New York on February 22, 2007
as CRFN 2007000100155, by Third Amendment to Agreement of Sublease (Office)
dated as of October 11, 2007 between Landlord and FC Eighth and recorded
in the Office of the City Register of the City of New York on January 8,
2008 as CRFN 2008000008732, and by Fourth Amendment to Agreement of Sublease
(Office) dated as of March 6, 2009 between Landlord and FC Eighth and
recorded in the Office of the City Register of the City of New York on March     ,
2008 as CRFN                               ,
and by Fifth Amendment to Agreement of Sublease (Office) even date herewith and
intended to be recorded in the Office of the City Register of the City of New
York (the Initial FC Office Sublease, as so assigned and amended, the “FC
Office Sublease”); and


 


(c)                                  that certain Agreement of Sublease (Retail)
dated as of December 12, 2001 with FC Lion, as tenant, a memorandum
of which was recorded October 24, 2003 as CRFN 2003000433124 in the Office
of the City Register (the “Initial FC Retail Sublease”), the tenant’s
interest in which Initial FC Retail Sublease was assigned to and assumed by FC
Eighth pursuant to that certain Assignment and Assumption of Sublease Agreement
dated as of August 15, 2006 between FC Lion, as assignor, and FC Eighth,
as assignee, and recorded in the Office of the City Register of the City of New
York on November 20, 2006 as CRFN 2006000644731, and which Initial FC
Retail Sublease was amended by First Amendment to Agreement of Sublease
(Retail) dated as of August 15, 2006 between Landlord and FC Eighth and
recorded in the Office of the City Register of the City of New York on November 20,
2006 as CRFN 2006000644734, by Second Amendment to Agreement of Sublease
(Retail) dated as of January 29, 2007 between Landlord and FC Eighth and
recorded in the Office of the City Register of the City of New York on February 22,
2007 as CRFN 2007000100156, by Third Amendment to Agreement of Sublease
(Retail) dated as of October 11, 2007 between Landlord and FC Eighth and
recorded in the Office of the City Register of the City of New York on January 8,
2008 as CRFN 2008000008733, and by Fourth Amendment to Agreement of Sublease (Retail)
dated as of March 6, 2009 between Landlord and FC Eighth and recorded in
the Office of the City Register of the City of New York on March     ,
2008 as CRFN                               ,
and by Fifth Amendment to Agreement of Sublease (Retail) even date herewith and
intended to be recorded in the Office of the City Register of the City of New
York (the Initial FC Retail Sublease, as so assigned and amended, the “FC
Retail Sublease”);


 


WHEREAS, NYTB
submitted the Initial Ground Lease to a leasehold condominium structure
pursuant to Article 9-B of the Real Property Law of the State of New York;


 


2

















 


WHEREAS,
pursuant to that certain Assignment and Assumption Agreement dated as of August 15,
2006 (being the “Lease Assignment Date” under the Initial Ground Lease) between
NYTB and Landlord (the “Assignment”), NYTB assigned to Landlord all of
NYTB’s right, title and interest in and to the Initial Ground Lease and the
NYTC Sublease, the FC Office Sublease and the FC Retail Sublease;


 


WHEREAS,
pursuant to the provisions of the Initial Ground Lease and the Assignment, the
Assignment did not cause a merger of the interests of landlord and tenant under
the Initial Ground Lease, which interests are and remain separate and distinct;


 


WHEREAS, the
Initial Ground Lease was amended and restated pursuant to Amended and Restated
Agreement of Lease dated as of August 15, 2006 and recorded in the Office
of the City Register of the City of New York on November 20, 2006 as CRFN
2006000644736, which Amended and Restated Agreement of Lease was amended by
First Amendment to Amended and Restated Agreement of Lease dated as of January 29,
2007 and recorded in the Office of the City Register of the City of New York on
February 22, 2007 as CRFN 2007000100154;


 


WHEREAS, pursuant
to the Third Amendment, Landlord and NYTRE modified the Initial NYTC Sublease,
inter alia, to remove from the premises demised thereunder a portion of the
NYTC Collective Unit (as defined in the Condominium Declaration) consisting of
Units 21-A, 22-A, 23-A, 24-A, 25-A, 26-A and 27-A, together their undivided
percentage interest in the Common Elements and the NYTC Limited Common Elements
(the “New NYTC Sublease Premises”);


 


WHEREAS, Landlord
and NYTRE entered into that certain Agreement of Sublease (NYT-2) dated as of March 6,
2009 with respect to the New NYTC Sublease Premises, a memorandum of which Agreement
of Sublease (NYT-2) was recorded March      , 2009 as
CRFN                                   
in the Office of the City Register, the tenant’s interest in which Agreement of
Sublease (NYT-2) was assigned to and assumed by NYT Building Leasing Company
LLC, a New York limited liability company (“NYTBLC”), pursuant to that
certain Assignment and Assumption of Sublease dated as of March 6, 2009
between NYTRE, as assignor, and, NYTBLC, as assignee, and recorded in the
Office of the City Register of the City of New York on March     ,
2009 as CRFN                                   ,
which Agreement of Sublease (NYT-2) has been amended by that certain First
Amendment to Agreement of Sublease (NYT-2) between Landlord and NYTBLC dated of
even date herewith and intended to be recorded in the Office of the City
Register of the City of New York;


 


WHEREAS,
simultaneously herewith the Unit Owners (as defined in the Condominium
Declaration) are executing a Fourth Amendment to Declaration of Leasehold
Condominium to reflect (i) some minor adjustments, corrections and
modifications with respect to the percentage interest in the Common Elements
allocated to the Units; and (ii) the combination of Units 1-E (tax lot
1007) and 1-A (tax lot 1003) into one unit to be known as Unit 1-A (tax lot
1003); and


 


3

















 


WHEREAS,
Landlord and Tenant desire to amend the NYTC Sublease for the purposes
hereinafter set forth.


 


NOW, THEREFORE,
in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:


 


1.               Definitions.  All capitalized terms used herein without
definition shall have the meanings ascribed to them in the NYTC Sublease.


 


2.               Modified Definitions.  The following defined terms set forth in the
NYTC Sublease are hereby modified as set forth below:


 


“Demised Premises”
means a portion of the NYTC Collective Unit (as defined in the Condominium
Declaration) consisting of Units 0-A, 1-A, 2-A, 3-A, 4-A, 5-A, 6-A, 7-A, 8-A,
9-A, 10-A, 11-A, 12-A, 13-A, 14-A, 15-A, 16-A, 17-A, 18-A, 19-A, 20-A, 28-A,
together with their undivided percentage interest in the Common Elements and
the NYTC Limited Common Elements.


 


3.               Legal Description.   “Exhibit A” to the Third Amendment
is hereby deleted and replaced in its entirety by the document attached hereto
as Exhibit A.  All references
to “Exhibit A” in the First Amendment, Second Amendment and Third
Amendment shall be deemed to refer to the document attached hereto as Exhibit A.


 


4.               Recording.  Landlord and Tenant agree that Tenant shall
cause this Amendment to be recorded and that Tenant shall pay any transfer or
similar taxes that may be payable as a result of this Amendment.


 


5.               No Other Amendments.  As modified by this Amendment, the NYTC
Sublease remains in full force and effect.


 


[the remainder of this page is
intentionally blank]


 


4

















 


                                      IN
WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of the
day and year first written above.


 


	
   

  	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  42ND ST. DEVELOPMENT
  PROJECT, INC., as Landlord

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Naresh Kapadia

  
	
   

  	
   

  	
   

  	
  Name: Naresh Kapadia

  
	
   

  	
   

  	
   

  	
  Title: Assistant VP, Planning and Design

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  620 EIGHTH NYT (NY)
  LIMITED

  
	
   

  	
   

  	
  PARTNERSHIP, a Delaware
  limited

  
	
   

  	
   

  	
  partnership

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 620 EIGHTH GP NYT (NY) LLC, a Delaware limited
  liability company, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: CPA:17 LIMITED
  PARTNERSHIP, a Delaware limited partnership, its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:  CORPORATE PROPERTY ASSOCIATES 17 — GLOBAL
  INCORPORATED, a Maryland corporation, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jason E. Fox

  
	
   

  	
   

  	
   

  	
  Name: Jason E. Fox

  
	
   

  	
   

  	
   

  	
  Title: Executive Director

  



 


 


ACKNOWLEDGED AND AGREED THIS


6TH DAY OF MARCH, 2009


 


	
  NYT REAL ESTATE COMPANY LLC

  
	
   

  
	
  By:

  	
              /s/
  Kenneth A. Richieri

  	
   

  
	
   

  	
  Name: Kenneth A. Richieri

  	
   

  
	
   

  	
  Title:   Manager

  	
   

  



 


5

















 


ACKNOWLEDGMENTS


 


STATE OF NEW YORK      )

                                               )        ss.:

COUNTY OF NEW YORK  )


 


                                                                        On
the      day of             
in the year 2009, before me, the undersigned, a Notary Public in and for said
State, personally appeared                             ,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that   he executed the same in h  
capacity, and that by h     signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument.


 


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Notary
  Public

  
	
   

  	
   

  	
   

  	
  Commission
  Expires

  



 


 


STATE OF NEW YORK      )

                                               )        ss.:

COUNTY OF NEW YORK  )


 


On the
     day of
             in the
year 2009, before me, the undersigned, a Notary Public in and for said State,
personally appeared                             ,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that   he executed the same in h  
capacity, and that by h     signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument.


 


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Notary
  Public

  
	
   

  	
   

  	
   

  	
  Commission
  Expires

  



 


6

















 


STATE OF NEW YORK      )

                                               )        ss.:

COUNTY OF NEW YORK  )


 


On the
     day of
             in the
year 2009, before me, the undersigned, a Notary Public in and for said State,
personally appeared                             ,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that _he executed the same in h_ capacity, and that by
h     signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.


 


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Notary
  Public

  
	
   

  	
   

  	
   

  	
  Commission
  Expires

  



 


7

















 


EXHIBIT A


 


LEGAL
DESCRIPTION


 


The Condominium Units (in the Building located at and known as THE NEW YORK TIMES BUILDING
CONDOMINIUM and by Street Number 620-628 8TH AVENUE, NEW YORK, NEW YORK),
designated and described as Units (SEE SCHEDULE ANNEXED) (hereinafter called
the “Units”) in the Declaration Establishing
a Plan of Leasehold Condominium Ownership of Premises made by The New York
Times Building LLC, as Declarant, under the Condominium Act of The State of New
York (Article 9-B of the Real Property Law of the State of New York),
dated as of August 4, 2006 and recorded August 15, 2006 in the Office
of the Register The City of New York (the “Register”), as
CRFN 2006000460293, as amended by First Amendment to Declaration dated January 29,
2007 and recorded as CRFN 2007000075106, and Second Amendment to Declaration
dated October 11, 2007 and recorded as CRFN 2008000008734, and Third
Amendment to Declaration dated March 6, 2009 and recorded as CRFN                     ,
and Fourth Amendment to Declaration dated March 6, 2009 to be recorded
with the Register (which Declaration, and any further amendments thereto, are
hereinafter collectively called the “Declaration”),
establishing a plan for leasehold condominium ownership of said Building and
the land upon which the same is erected (hereinafter sometimes collectively
called the “Property”) and also designated and
described as Tax Lots No. (SEE SCHEDULE ANNEXED), Block 1012 Section 4,
Borough of MANHATTAN on the Tax Map of the Real Property Assessment Department
of the City of New York and on the floor plans of said Building certified by
Daniel Kaplan, approved by the Real Property Assessment Bureau on August 13,
2006 and filed as Condominium Plan No. 1595 on August 15, 2006 in the
aforesaid Register’s Office.


 


The land upon which the Building containing
the Units is erected as follows:


 


ALL that certain plot, piece or parcel of
land, situate, lying and being in the Borough of Manhattan, County of New York,
City and State of New York, bounded and described as follows:


 


BEGINNING at the corner formed by the
intersection of the northerly line of West 40th Street with the easterly line
of 8th Avenue,


 


RUNNING THENCE northerly along said easterly
line of 8th Avenue, 197 feet 6 inches to the corner formed by the intersection
of the easterly side of 8th Avenue with the southerly line of West 41st Street;


 


THENCE easterly along said southerly line of
West 41st Street, 400 feet;


 


THENCE southerly and parallel to said
easterly line of 8th Avenue, 197 feet 6 inches to the northerly line of West
40th Street;


 


THENCE westerly along said northerly line of
West 40th Street, 400 feet to the point or place of BEGINNING,


 


8

















 


TOGETHER with an undivided percentage
interest (SEE SCHEDULE ANNEXED) in the Common Elements and the NYTC Limited Common
Elements (as such terms are defined in the Declaration) of the New York Times
Building Condominium, recorded as CRFN 2006000460293 as amended.


 


9

















 


SCHEDULE
OF UNITS


 


	
  UNIT DESIGNATION

  	
   

  	
  TAX LOT

  	
   

  	
  PERCENTAGE INTEREST 

  IN COMMON ELEMENTS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  0-A

  	
   

  	
  1001

  	
   

  	
  0.6726%

  
	
  1- A

  	
   

  	
  1003

  	
   

  	
  2.0809%

  
	
  2-A

  	
   

  	
  1009

  	
   

  	
  4.7683%

  
	
  3-A

  	
   

  	
  1010

  	
   

  	
  4.7719%

  
	
  4-A

  	
   

  	
  1011

  	
   

  	
  4.2717%

  
	
  5-A

  	
   

  	
  1012

  	
   

  	
  1.6453%

  
	
  6-A

  	
   

  	
  1013

  	
   

  	
  1.7431%

  
	
  7-A

  	
   

  	
  1014

  	
   

  	
  1.7431%

  
	
  8-A

  	
   

  	
  1015

  	
   

  	
  1.7431%

  
	
  9-A

  	
   

  	
  1016

  	
   

  	
  1.7431%

  
	
  10-A

  	
   

  	
  1017

  	
   

  	
  1.7431%

  
	
  11-A

  	
   

  	
  1018

  	
   

  	
  1.7431%

  
	
  12-A

  	
   

  	
  1019

  	
   

  	
  1.7431%

  
	
  13-A

  	
   

  	
  1020

  	
   

  	
  1.7431%

  
	
  14-A

  	
   

  	
  1021

  	
   

  	
  1.7546%

  
	
  15-A

  	
   

  	
  1022

  	
   

  	
  1.3954%

  
	
  16-A

  	
   

  	
  1023

  	
   

  	
  1.7591%

  
	
  17-A

  	
   

  	
  1024

  	
   

  	
  1.7312%

  
	
  18-A

  	
   

  	
  1025

  	
   

  	
  1.7819%

  
	
  19-A

  	
   

  	
  1026

  	
   

  	
  1.7819%

  
	
  20-A

  	
   

  	
  1027

  	
   

  	
  1.7819%

  
	
  28-A

  	
   

  	
  1035

  	
   

  	
  0.4470%

  



 


10