1017-00009 · Aurelius Global Media Group · Transaction Documents/Exhibits

exhibit-f-rofo-terms.docx DOCUMENT Real Estate

33 / 37 ← → ✕

EXHIBIT F

RIGHT OF FIRST OFFER TERMS

This Exhibit F is attached to and forms a part of that certain Agreement of Lease dated as of July 13, 2023 (the "Lease"), by and between Greystone Metropolitan Realty LLC, a Delaware limited liability company ("Landlord"), and Aurelius Media Holdings Inc., a Delaware corporation ("Tenant"), for premises located at 787 Seventh Avenue, New York, New York 10019 (the "Building"), also known as Greystone Tower. This Exhibit F sets forth the terms and conditions of Tenant's right of first offer with respect to certain space in the Building, as more particularly described below. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Lease.

Section 1. ROFO Space Definition.

1.1 For purposes of this Exhibit F, the term "ROFO Space" shall mean any full floor on Floors 30, 31, 32, or 33 of the Building (each such floor comprising approximately 37,000 rentable square feet ("RSF"), as measured in accordance with the measurement standards set forth in the Lease) that becomes "Available" (as defined in Section 1.2 below) during the Term of the Lease, including any Renewal Term (as defined in the Lease), if applicable.

1.2 A floor constituting ROFO Space shall be deemed "Available" upon the first to occur of (a) the expiration of the existing lease for such floor in accordance with its terms (including any exercised renewal or extension options), (b) the earlier termination of such existing lease for any reason, including without limitation a termination resulting from a default by the tenant thereunder, a negotiated early termination, or a rejection in bankruptcy, or (c) the date upon which Landlord otherwise determines, in its sole but good faith discretion, to offer such floor for lease to third parties. For the avoidance of doubt, a floor shall not be deemed "Available" solely by reason of the fact that the existing tenant on such floor has entered into negotiations with Landlord for a renewal, extension, or restructuring of its lease, provided that such negotiations have not concluded with a determination by Landlord to offer such floor for lease to third parties.

1.3 Notwithstanding anything herein to the contrary, the ROFO Space shall not include (a) any partial floor of the Building, including any portion of Floors 30, 31, 32, or 33 that constitutes less than the entirety of such floor, or (b) any space on any floor of the Building other than Floors 30, 31, 32, and 33. In the event that a floor constituting ROFO Space is demised into multiple suites under separate leases as of the date of the Lease or at any time thereafter, the ROFO right set forth in this Exhibit F shall apply to such floor only when the entire floor becomes Available and Landlord elects to offer such floor as a full-floor unit.

Section 2. Subordination to Existing Rights.

2.1 Tenant acknowledges and agrees that Tenant's right of first offer under this Exhibit F is expressly subordinate and subject to the existing lease, renewal, extension, expansion, and other occupancy rights of Kestrel Insurance Holdings Inc., a Delaware corporation ("Kestrel"), the current tenant occupying Floors 30, 31, and 32 of the Building pursuant to that certain lease between Landlord (or its predecessor in interest) and Kestrel, as such rights exist as of the date of the Lease (July 13, 2023). Tenant acknowledges that it has been informed of the existence of such superior rights and that Landlord has made no representation or warranty as to whether Kestrel will or will not exercise any or all of such rights.

2.2 If Kestrel exercises any renewal, extension, expansion, contraction, relocation, or other right or option with respect to any floor or floors constituting ROFO Space (whether such right is set forth in Kestrel's lease, in any amendment thereto, or in any separate agreement between Landlord and Kestrel existing as of the date of the Lease), Landlord shall have no obligation to offer such floor or floors to Tenant under this Exhibit F, and Tenant's ROFO right with respect to such floor or floors shall remain dormant until such time as the ROFO Space next becomes Available in accordance with Section 1.2 above.

2.3 Tenant's ROFO right shall apply to any ROFO Space only after all superior rights of Kestrel with respect to such space have expired in accordance with their terms, been expressly waived by Kestrel in writing, or been fully exercised by Kestrel (i.e., to the extent that Kestrel's exercise of its rights does not encompass a particular floor or floors of ROFO Space), and the applicable ROFO Space thereafter becomes Available in accordance with Section 1.2 above.

2.4 For the avoidance of doubt, Tenant's ROFO right under this Exhibit F shall not be subordinate to the rights of any tenant or occupant of the Building other than Kestrel, unless Landlord delivers written notice to Tenant prior to the commencement of the Lease Term identifying any additional superior right holders and the specific nature of their superior rights. As of the date of the Lease, Landlord represents that, other than Kestrel, no other tenant or occupant of the Building holds any expansion, right of first offer, right of first refusal, or other preferential right with respect to any floor constituting ROFO Space.

Section 3. Landlord's Obligation to Offer ROFO Space.

3.1 Before Landlord markets, advertises, or offers any Available ROFO Space to any third party (other than pursuant to Kestrel's existing rights as described in Section 2 above), Landlord shall deliver written notice to Tenant (a "ROFO Notice") setting forth the terms upon which Landlord is willing to lease such ROFO Space.

3.2 Each ROFO Notice shall specify the following information (collectively, the "Offered Terms"):

(a) The particular floor or floors comprising the Available ROFO Space;

(b) The rentable square footage of the Available ROFO Space, measured in accordance with the measurement standards set forth in the Lease;

(c) The proposed annual base rent per RSF for the ROFO Space and any escalation schedule applicable thereto (including, without limitation, any fixed annual percentage increases, CPI-based adjustments, or fair market value redetermination provisions);

(d) The proposed term for the ROFO Space, which may be co-terminous with the then-remaining Term of the Lease or a different term as specified by Landlord in its reasonable discretion;

(e) The amount of any tenant improvement allowance, if any, offered by Landlord in connection with the ROFO Space, expressed as a dollar amount per RSF, together with any conditions on the disbursement or use of such allowance;

(f) Any free rent or rent abatement period offered by Landlord in connection with the ROFO Space, including the duration and structure of any such free rent period;

(g) Any other concessions offered by Landlord, including without limitation any contributions toward moving expenses, architectural and engineering fees, cabling and wiring costs, or signage rights;

(h) The proposed commencement date for the ROFO Space (i.e., the date on which Tenant's obligations with respect to the ROFO Space, including the obligation to pay base rent and additional rent, would commence), and, if different, the date on which Tenant would be granted access to the ROFO Space for purposes of performing any tenant improvements or installations;

(i) The condition in which the ROFO Space will be delivered (e.g., "as-is," broom clean, or in a specified condition); and

(j) Any other material economic terms applicable to the leasing of the ROFO Space, including without limitation any requirements for additional security deposits, letters of credit, or guaranties.

3.3 Landlord shall deliver the ROFO Notice to Tenant at the address for notices set forth in the notice provisions of the Lease. The ROFO Notice shall be delivered in the manner required for the delivery of notices under the Lease (including, without limitation, by nationally recognized overnight courier service or by hand delivery with receipt acknowledged). The effective date of the ROFO Notice shall be determined in accordance with the notice provisions of the Lease.

3.4 Landlord shall exercise good faith in determining the Offered Terms, and such terms shall reflect the terms that Landlord would reasonably expect to obtain from a third-party tenant leasing the ROFO Space in an arm's-length transaction, taking into account then-prevailing market conditions for comparable office space in midtown Manhattan.

Section 4. Tenant's Acceptance Period.

4.1 Tenant shall have fifteen (15) business days after receipt of the ROFO Notice (the "ROFO Acceptance Period") within which to deliver written notice to Landlord (a "ROFO Acceptance Notice") irrevocably electing to lease the Available ROFO Space on the Offered Terms set forth in the ROFO Notice. As used herein, the term "business day" shall mean any day other than a Saturday, Sunday, or any day on which commercial banks in the City of New York are authorized or required by law to close.

4.2 The ROFO Acceptance Notice must accept the Offered Terms in their entirety, without modification, qualification, or condition of any kind. Any purported acceptance that modifies, qualifies, or conditions the Offered Terms in any respect, or that accepts only a portion of the Available ROFO Space, shall be deemed a rejection of the ROFO Notice and shall not constitute a valid ROFO Acceptance Notice. For the avoidance of doubt, Tenant may not counter-offer or propose alternative terms in response to a ROFO Notice; Tenant's sole options are to accept the Offered Terms in their entirety or to decline (or be deemed to have declined) the ROFO Space.

4.3 If Tenant fails to deliver a valid ROFO Acceptance Notice within the ROFO Acceptance Period, or if Tenant delivers written notice to Landlord declining to lease the Available ROFO Space, Tenant shall be deemed to have waived its ROFO right with respect to that particular offering of that particular ROFO Space. Such waiver shall apply only to the specific offering of the specific ROFO Space described in the applicable ROFO Notice and shall not extinguish or otherwise affect Tenant's ROFO right with respect to (a) any future offering of the same ROFO Space (including any re-offering required under Section 6 below) or (b) any offering of different ROFO Space, in each case subject to the provisions of Section 7 below.

4.4 Time is of the essence with respect to Tenant's delivery of a ROFO Acceptance Notice within the ROFO Acceptance Period. Landlord shall have no obligation to extend the ROFO Acceptance Period for any reason, and any ROFO Acceptance Notice received by Landlord after the expiration of the ROFO Acceptance Period shall be null, void, and of no force or effect.

Section 5. Lease of ROFO Space Upon Acceptance.

5.1 If Tenant timely delivers a valid ROFO Acceptance Notice in accordance with Section 4, Landlord and Tenant shall, within thirty (30) days following the date of the ROFO Acceptance Notice, execute an amendment to the Lease (or, at Landlord's sole election, a separate lease document) incorporating the ROFO Space into the Premises on the Offered Terms. Tenant acknowledges that Landlord shall have the right, in its sole discretion, to determine whether the ROFO Space shall be added to the Lease by amendment or by separate lease instrument. In either case, the terms and conditions set forth in this Section 5 shall apply.

5.2 Except as expressly set forth in the Offered Terms, the ROFO Space shall be leased on substantially the same terms and conditions as the Lease, including, without limitation, the provisions of the Lease regarding:

(a) Assignment and subletting;

(b) Change of control;

(d) Indemnification and limitation of liability;

(e) Default and remedies;

(f) Compliance with laws and environmental provisions;

(g) Maintenance, repairs, and alterations;

(h) Use and permitted uses;

(i) Casualty and condemnation; and

(j) Surrender of premises.

5.3 Upon the addition of the ROFO Space to the Premises, Tenant's Proportionate Share under the Lease shall be recalculated to include the ROFO Space, based upon the total rentable area of the Building, which the parties agree is 1,450,000 RSF. By way of illustration and not limitation, if the Premises under the Lease prior to the addition of the ROFO Space contain 148,000 RSF and the ROFO Space comprises one full floor of approximately 37,000 RSF, Tenant's Proportionate Share would be recalculated as follows: (148,000 + 37,000) ÷ 1,450,000 = approximately 12.76%. The recalculated Proportionate Share shall be applicable to Tenant's obligations for Operating Expenses, Tax Expenses, and all other items calculated on a proportionate share basis under the Lease.

5.4 Tenant's obligations with respect to the ROFO Space, including without limitation the obligation to pay base rent, additional rent, and all other charges arising under the Lease (as amended or supplemented with respect to the ROFO Space), shall commence on the date specified in the Offered Terms as the commencement date for the ROFO Space. If the Offered Terms provide for a free rent period or rent abatement, Tenant's obligation to pay base rent for the ROFO Space shall commence upon the expiration of such free rent or abatement period, but Tenant's obligation to pay additional rent (including Operating Expenses and Tax Expenses) for the ROFO Space shall commence on the commencement date unless the Offered Terms expressly provide otherwise.

5.5 If Landlord and Tenant fail to execute the amendment to the Lease (or separate lease) within the thirty (30) day period specified in Section 5.1 despite Tenant's timely delivery of a valid ROFO Acceptance Notice, and such failure is not due to Tenant's refusal or failure to execute such instrument, the Offered Terms shall nonetheless be binding upon both Landlord and Tenant as if fully set forth in an executed amendment, and each party shall be obligated to perform its obligations with respect to the ROFO Space in accordance with the Offered Terms and the terms of the Lease.

Section 6. Landlord's Right to Lease to Third Parties.

6.1 If Tenant fails to timely accept the Offered Terms within the ROFO Acceptance Period in accordance with Section 4 (whether by failing to deliver a ROFO Acceptance Notice, by delivering a notice declining the ROFO Space, or by delivering a purported acceptance that is deemed a rejection under Section 4.2), Landlord shall thereafter be free to lease the ROFO Space to any third party; provided, however, that the economic terms of any such third-party lease shall be no more favorable to such third party than ninety percent (90%) of the aggregate economic terms set forth in the ROFO Notice (the "ROFO Protection Threshold").

6.2 For purposes of determining whether the terms of a proposed third-party lease exceed the ROFO Protection Threshold, the comparison shall be based on the aggregate net effective rent over the term of the proposed third-party lease, taking into account the base rent, any escalations, tenant improvement allowances, free rent, and all other concessions. If the net effective rent payable by the proposed third-party tenant (after accounting for the value of all concessions received by such third party) would be less than ninety percent (90%) of the net effective rent that would have been payable by Tenant under the Offered Terms (calculated on the same basis), such third-party lease shall be deemed to exceed the ROFO Protection Threshold.

6.3 If Landlord does not execute a binding lease with a third party for the ROFO Space within nine (9) months after the expiration of the ROFO Acceptance Period, Landlord's right to lease the ROFO Space without re-offering it to Tenant shall lapse, and Landlord shall be required to re-offer the ROFO Space to Tenant in accordance with the provisions of this Exhibit F (including by delivery of a new ROFO Notice with updated Offered Terms) before leasing the ROFO Space to any third party.

6.4 If, at any time during the nine (9) month period described in Section 6.3, Landlord proposes to lease the ROFO Space to a third party on terms more favorable to such third party than the ROFO Protection Threshold, Landlord shall be required to re-offer the ROFO Space to Tenant in accordance with the provisions of this Exhibit F before consummating such third-party lease. Any such re-offering shall be made by delivery of a new ROFO Notice reflecting the revised Offered Terms, and Tenant shall have a new ROFO Acceptance Period with respect to such re-offering in accordance with Section 4.

Section 7. Recurring Nature of ROFO Right.

7.1 Tenant's ROFO right under this Exhibit F is a recurring right that shall apply each time any ROFO Space becomes Available during the Term of the Lease, including during any Renewal Term exercised by Tenant in accordance with the terms of the Lease, subject in all cases to the subordination to Kestrel's rights set forth in Section 2 and to the satisfaction of the conditions set forth in Section 8.

7.2 Tenant's waiver or rejection of a ROFO Notice with respect to a particular floor shall not extinguish, diminish, or otherwise affect Tenant's ROFO right with respect to (a) any subsequent availability of the same floor (including a re-offering pursuant to Section 6 above), or (b) any availability of any other floor constituting ROFO Space. Each occasion on which ROFO Space becomes Available shall give rise to a separate and independent obligation on the part of Landlord to deliver a ROFO Notice and to comply with the procedures set forth in this Exhibit F.

7.3 The ROFO right shall continue throughout the entire Term of the Lease (including any Renewal Term) until the expiration or earlier termination of the Lease, at which time all ROFO rights under this Exhibit F shall automatically terminate without further action by either party.

Section 8. Conditions to Exercise.

8.1 Tenant's right to exercise the ROFO right under this Exhibit F is subject to the satisfaction of each of the following conditions at both (a) the time of Tenant's delivery of the ROFO Acceptance Notice and (b) the time of execution of the amendment to the Lease (or separate lease) incorporating the ROFO Space:

(a) The Lease is in full force and effect and has not been terminated or expired;

(b) No Event of Default (as defined in the Lease) by Tenant exists under the Lease, and no condition or circumstance exists which, with the giving of notice by Landlord, the passage of any applicable cure period, or both, would constitute an Event of Default by Tenant under the Lease;

(c) Tenant has not assigned the Lease to any party other than pursuant to a Permitted Assignment (as defined in the Lease), including without limitation a change of control assignment as permitted under the applicable provisions of the Lease, and Tenant has not sublet more than forty percent (40%) of the rentable area of the Premises (as such Premises exist immediately prior to the proposed addition of the ROFO Space, and excluding any subletting to an Affiliate (as defined in the Lease) that constitutes a Permitted Assignment under the Lease).

8.2 If any of the foregoing conditions are not satisfied at either of the times specified in Section 8.1, Landlord shall have no obligation to deliver a ROFO Notice to Tenant or to offer the ROFO Space to Tenant, and Landlord may lease such ROFO Space to any third party without restriction and without compliance with the procedures set forth in this Exhibit F. In such event, Landlord shall provide written notice to Tenant stating that the conditions to exercise have not been satisfied, specifying the condition(s) that are not met. Tenant's ROFO right shall be revived if and when all conditions set forth in Section 8.1 are subsequently satisfied, provided that the Lease remains in effect.

8.3 The foregoing conditions are for the sole benefit of Landlord, and Landlord may waive any such condition in its sole and absolute discretion, without creating any precedent or obligation to waive such condition in the future.

Section 9. ROFO Right Personal to Tenant.

9.1 The right of first offer set forth in this Exhibit F is personal to Aurelius Media Holdings Inc. and any successor entity to which the Lease has been assigned pursuant to a change of control assignment as defined in and permitted by the Lease. The ROFO right may not be exercised by, transferred to, or assigned to any subtenant, assignee (other than a successor entity resulting from a change of control assignment as defined in the Lease), licensee, concessionaire, or other transferee of the Lease or any interest therein.

9.2 Any attempted exercise of the ROFO right by any person or entity other than Aurelius Media Holdings Inc. (or a permitted change of control successor) shall be null, void, and of no force or effect. In the event that the Lease is assigned to any party other than a permitted change of control successor, the ROFO right set forth in this Exhibit F shall automatically terminate as of the effective date of such assignment, without further notice or action by Landlord.

Section 10. Interaction with Expansion Option.

10.1 Tenant's ROFO right under this Exhibit F is independent of, and in addition to, Tenant's expansion option set forth in Exhibit E to the Lease (which expansion option applies to Floors 39 and 40 of the Building). The existence or exercise of Tenant's rights under one such exhibit shall not limit, reduce, or otherwise affect the existence or exercise of Tenant's rights under the other.

10.2 If Tenant exercises the expansion option under Exhibit E with respect to Floors 39 and 40 (or either of them), Tenant's ROFO right under this Exhibit F with respect to Floors 30 through 33 shall remain in full force and effect, and Landlord shall continue to be obligated to deliver ROFO Notices with respect to Available ROFO Space in accordance with the terms hereof.

10.3 Conversely, if Tenant exercises its ROFO right with respect to one or more floors of ROFO Space under this Exhibit F, Tenant's expansion option under Exhibit E with respect to Floors 39 and 40 shall remain in full force and effect in accordance with its terms.

Section 11. Notices.

11.1 All notices, demands, requests, consents, approvals, and other communications required or permitted to be given under this Exhibit F (including, without limitation, the ROFO Notice and the ROFO Acceptance Notice) shall be in writing and shall be given in the manner and to the addresses specified in the notice provisions of the Lease. Any change in the address for notices made in accordance with the Lease shall be effective for purposes of this Exhibit F without the need for any separate notice under this Exhibit F.

Section 12. Governing Law; Dispute Resolution.

12.1 This Exhibit F shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within the State of New York, without regard to conflicts of law principles that would require the application of the laws of any other jurisdiction.

12.2 Any dispute, controversy, or claim arising out of or relating to this Exhibit F, or the breach, termination, or validity thereof, shall be resolved in accordance with the dispute resolution provisions set forth in the Lease. Without limiting the generality of the foregoing, the parties agree that any action or proceeding arising under this Exhibit F shall be brought exclusively in the Supreme Court of the State of New York, County of New York, and each party hereby consents to the personal jurisdiction of such court and waives any objection to venue in such court.

[Remainder of page intentionally left blank]

ACKNOWLEDGED AND AGREED

The undersigned parties acknowledge that this Exhibit F is attached to and incorporated into the Lease as of the date first set forth in the Lease.

LANDLORD:

GREYSTONE METROPOLITAN REALTY LLC, a Delaware limited liability company

By: ________

Name: Jonathan R. Whitfield

Title: Senior Vice President — Leasing

Date: ________

TENANT:

AURELIUS MEDIA HOLDINGS INC., a Delaware corporation

By: ________

Name: Catherine S. Park

Title: Executive Vice President and General Counsel

Date: ________

EXHIBIT F
RIGHT OF FIRST OFFER TERMS
This Exhibit F is attached to and forms a part of that certain Agreement of Lease dated as of July 13, 2023 (the "Lease"), by and between Greystone Metropolitan Realty LLC, a Delaware limited liability company ("Landlord"), and Aurelius Media Holdings Inc., a Delaware corporation ("Tenant"), for premises located at 787 Seventh Avenue, New York, New York 10019 (the "Building"), also known as Greystone Tower. This Exhibit F sets forth the terms and conditions of Tenant's right of first offer with respect to certain space in the Building, as more particularly described below. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Lease.
Section 1. ROFO Space Definition.
1.1 For purposes of this Exhibit F, the term "ROFO Space" shall mean any full floor on Floors 30, 31, 32, or 33 of the Building (each such floor comprising approximately 37,000 rentable square feet ("RSF"), as measured in accordance with the measurement standards set forth in the Lease) that becomes "Available" (as defined in Section 1.2 below) during the Term of the Lease, including any Renewal Term (as defined in the Lease), if applicable.
1.2 A floor constituting ROFO Space shall be deemed "Available" upon the first to occur of (a) the expiration of the existing lease for such floor in accordance with its terms (including any exercised renewal or extension options), (b) the earlier termination of such existing lease for any reason, including without limitation a termination resulting from a default by the tenant thereunder, a negotiated early termination, or a rejection in bankruptcy, or (c) the date upon which Landlord otherwise determines, in its sole but good faith discretion, to offer such floor for lease to third parties. For the avoidance of doubt, a floor shall not be deemed "Available" solely by reason of the fact that the existing tenant on such floor has entered into negotiations with Landlord for a renewal, extension, or restructuring of its lease, provided that such negotiations have not concluded with a determination by Landlord to offer such floor for lease to third parties.
1.3 Notwithstanding anything herein to the contrary, the ROFO Space shall not include (a) any partial floor of the Building, including any portion of Floors 30, 31, 32, or 33 that constitutes less than the entirety of such floor, or (b) any space on any floor of the Building other than Floors 30, 31, 32, and 33. In the event that a floor constituting ROFO Space is demised into multiple suites under separate leases as of the date of the Lease or at any time thereafter, the ROFO right set forth in this Exhibit F shall apply to such floor only when the entire floor becomes Available and Landlord elects to offer such floor as a full-floor unit.
Section 2. Subordination to Existing Rights.
2.1 Tenant acknowledges and agrees that Tenant's right of first offer under this Exhibit F is expressly subordinate and subject to the existing lease, renewal, extension, expansion, and other occupancy rights of Kestrel Insurance Holdings Inc., a Delaware corporation ("Kestrel"), the current tenant occupying Floors 30, 31, and 32 of the Building pursuant to that certain lease between Landlord (or its predecessor in interest) and Kestrel, as such rights exist as of the date of the Lease (July 13, 2023). Tenant acknowledges that it has been informed of the existence of such superior rights and that Landlord has made no representation or warranty as to whether Kestrel will or will not exercise any or all of such rights.
2.2 If Kestrel exercises any renewal, extension, expansion, contraction, relocation, or other right or option with respect to any floor or floors constituting ROFO Space (whether such right is set forth in Kestrel's lease, in any amendment thereto, or in any separate agreement between Landlord and Kestrel existing as of the date of the Lease), Landlord shall have no obligation to offer such floor or floors to Tenant under this Exhibit F, and Tenant's ROFO right with respect to such floor or floors shall remain dormant until such time as the ROFO Space next becomes Available in accordance with Section 1.2 above.
2.3 Tenant's ROFO right shall apply to any ROFO Space only after all superior rights of Kestrel with respect to such space have expired in accordance with their terms, been expressly waived by Kestrel in writing, or been fully exercised by Kestrel (i.e., to the extent that Kestrel's exercise of its rights does not encompass a particular floor or floors of ROFO Space), and the applicable ROFO Space thereafter becomes Available in accordance with Section 1.2 above.
2.4 For the avoidance of doubt, Tenant's ROFO right under this Exhibit F shall not be subordinate to the rights of any tenant or occupant of the Building other than Kestrel, unless Landlord delivers written notice to Tenant prior to the commencement of the Lease Term identifying any additional superior right holders and the specific nature of their superior rights. As of the date of the Lease, Landlord represents that, other than Kestrel, no other tenant or occupant of the Building holds any expansion, right of first offer, right of first refusal, or other preferential right with respect to any floor constituting ROFO Space.
Section 3. Landlord's Obligation to Offer ROFO Space.
3.1 Before Landlord markets, advertises, or offers any Available ROFO Space to any third party (other than pursuant to Kestrel's existing rights as described in Section 2 above), Landlord shall deliver written notice to Tenant (a "ROFO Notice") setting forth the terms upon which Landlord is willing to lease such ROFO Space.
3.2 Each ROFO Notice shall specify the following information (collectively, the "Offered Terms"):
(a) The particular floor or floors comprising the Available ROFO Space;
(b) The rentable square footage of the Available ROFO Space, measured in accordance with the measurement standards set forth in the Lease;
(c) The proposed annual base rent per RSF for the ROFO Space and any escalation schedule applicable thereto (including, without limitation, any fixed annual percentage increases, CPI-based adjustments, or fair market value redetermination provisions);
(d) The proposed term for the ROFO Space, which may be co-terminous with the then-remaining Term of the Lease or a different term as specified by Landlord in its reasonable discretion;
(e) The amount of any tenant improvement allowance, if any, offered by Landlord in connection with the ROFO Space, expressed as a dollar amount per RSF, together with any conditions on the disbursement or use of such allowance;
(f) Any free rent or rent abatement period offered by Landlord in connection with the ROFO Space, including the duration and structure of any such free rent period;
(g) Any other concessions offered by Landlord, including without limitation any contributions toward moving expenses, architectural and engineering fees, cabling and wiring costs, or signage rights;
(h) The proposed commencement date for the ROFO Space (i.e., the date on which Tenant's obligations with respect to the ROFO Space, including the obligation to pay base rent and additional rent, would commence), and, if different, the date on which Tenant would be granted access to the ROFO Space for purposes of performing any tenant improvements or installations;
(i) The condition in which the ROFO Space will be delivered (e.g., "as-is," broom clean, or in a specified condition); and
(j) Any other material economic terms applicable to the leasing of the ROFO Space, including without limitation any requirements for additional security deposits, letters of credit, or guaranties.
3.3 Landlord shall deliver the ROFO Notice to Tenant at the address for notices set forth in the notice provisions of the Lease. The ROFO Notice shall be delivered in the manner required for the delivery of notices under the Lease (including, without limitation, by nationally recognized overnight courier service or by hand delivery with receipt acknowledged). The effective date of the ROFO Notice shall be determined in accordance with the notice provisions of the Lease.
3.4 Landlord shall exercise good faith in determining the Offered Terms, and such terms shall reflect the terms that Landlord would reasonably expect to obtain from a third-party tenant leasing the ROFO Space in an arm's-length transaction, taking into account then-prevailing market conditions for comparable office space in midtown Manhattan.
Section 4. Tenant's Acceptance Period.
4.1 Tenant shall have fifteen (15) business days after receipt of the ROFO Notice (the "ROFO Acceptance Period") within which to deliver written notice to Landlord (a "ROFO Acceptance Notice") irrevocably electing to lease the Available ROFO Space on the Offered Terms set forth in the ROFO Notice. As used herein, the term "business day" shall mean any day other than a Saturday, Sunday, or any day on which commercial banks in the City of New York are authorized or required by law to close.
4.2 The ROFO Acceptance Notice must accept the Offered Terms in their entirety, without modification, qualification, or condition of any kind. Any purported acceptance that modifies, qualifies, or conditions the Offered Terms in any respect, or that accepts only a portion of the Available ROFO Space, shall be deemed a rejection of the ROFO Notice and shall not constitute a valid ROFO Acceptance Notice. For the avoidance of doubt, Tenant may not counter-offer or propose alternative terms in response to a ROFO Notice; Tenant's sole options are to accept the Offered Terms in their entirety or to decline (or be deemed to have declined) the ROFO Space.
4.3 If Tenant fails to deliver a valid ROFO Acceptance Notice within the ROFO Acceptance Period, or if Tenant delivers written notice to Landlord declining to lease the Available ROFO Space, Tenant shall be deemed to have waived its ROFO right with respect to that particular offering of that particular ROFO Space. Such waiver shall apply only to the specific offering of the specific ROFO Space described in the applicable ROFO Notice and shall not extinguish or otherwise affect Tenant's ROFO right with respect to (a) any future offering of the same ROFO Space (including any re-offering required under Section 6 below) or (b) any offering of different ROFO Space, in each case subject to the provisions of Section 7 below.
4.4 Time is of the essence with respect to Tenant's delivery of a ROFO Acceptance Notice within the ROFO Acceptance Period. Landlord shall have no obligation to extend the ROFO Acceptance Period for any reason, and any ROFO Acceptance Notice received by Landlord after the expiration of the ROFO Acceptance Period shall be null, void, and of no force or effect.
Section 5. Lease of ROFO Space Upon Acceptance.
5.1 If Tenant timely delivers a valid ROFO Acceptance Notice in accordance with Section 4, Landlord and Tenant shall, within thirty (30) days following the date of the ROFO Acceptance Notice, execute an amendment to the Lease (or, at Landlord's sole election, a separate lease document) incorporating the ROFO Space into the Premises on the Offered Terms. Tenant acknowledges that Landlord shall have the right, in its sole discretion, to determine whether the ROFO Space shall be added to the Lease by amendment or by separate lease instrument. In either case, the terms and conditions set forth in this Section 5 shall apply.
5.2 Except as expressly set forth in the Offered Terms, the ROFO Space shall be leased on substantially the same terms and conditions as the Lease, including, without limitation, the provisions of the Lease regarding:
(a) Assignment and subletting;
(b) Change of control;
(c) Insurance requirements;
(d) Indemnification and limitation of liability;
(e) Default and remedies;
(f) Compliance with laws and environmental provisions;
(g) Maintenance, repairs, and alterations;
(h) Use and permitted uses;
(i) Casualty and condemnation; and
(j) Surrender of premises.
5.3 Upon the addition of the ROFO Space to the Premises, Tenant's Proportionate Share under the Lease shall be recalculated to include the ROFO Space, based upon the total rentable area of the Building, which the parties agree is 1,450,000 RSF. By way of illustration and not limitation, if the Premises under the Lease prior to the addition of the ROFO Space contain 148,000 RSF and the ROFO Space comprises one full floor of approximately 37,000 RSF, Tenant's Proportionate Share would be recalculated as follows: (148,000 + 37,000) ÷ 1,450,000 = approximately 12.76%. The recalculated Proportionate Share shall be applicable to Tenant's obligations for Operating Expenses, Tax Expenses, and all other items calculated on a proportionate share basis under the Lease.
5.4 Tenant's obligations with respect to the ROFO Space, including without limitation the obligation to pay base rent, additional rent, and all other charges arising under the Lease (as amended or supplemented with respect to the ROFO Space), shall commence on the date specified in the Offered Terms as the commencement date for the ROFO Space. If the Offered Terms provide for a free rent period or rent abatement, Tenant's obligation to pay base rent for the ROFO Space shall commence upon the expiration of such free rent or abatement period, but Tenant's obligation to pay additional rent (including Operating Expenses and Tax Expenses) for the ROFO Space shall commence on the commencement date unless the Offered Terms expressly provide otherwise.
5.5 If Landlord and Tenant fail to execute the amendment to the Lease (or separate lease) within the thirty (30) day period specified in Section 5.1 despite Tenant's timely delivery of a valid ROFO Acceptance Notice, and such failure is not due to Tenant's refusal or failure to execute such instrument, the Offered Terms shall nonetheless be binding upon both Landlord and Tenant as if fully set forth in an executed amendment, and each party shall be obligated to perform its obligations with respect to the ROFO Space in accordance with the Offered Terms and the terms of the Lease.
Section 6. Landlord's Right to Lease to Third Parties.
6.1 If Tenant fails to timely accept the Offered Terms within the ROFO Acceptance Period in accordance with Section 4 (whether by failing to deliver a ROFO Acceptance Notice, by delivering a notice declining the ROFO Space, or by delivering a purported acceptance that is deemed a rejection under Section 4.2), Landlord shall thereafter be free to lease the ROFO Space to any third party; provided, however, that the economic terms of any such third-party lease shall be no more favorable to such third party than ninety percent (90%) of the aggregate economic terms set forth in the ROFO Notice (the "ROFO Protection Threshold").
6.2 For purposes of determining whether the terms of a proposed third-party lease exceed the ROFO Protection Threshold, the comparison shall be based on the aggregate net effective rent over the term of the proposed third-party lease, taking into account the base rent, any escalations, tenant improvement allowances, free rent, and all other concessions. If the net effective rent payable by the proposed third-party tenant (after accounting for the value of all concessions received by such third party) would be less than ninety percent (90%) of the net effective rent that would have been payable by Tenant under the Offered Terms (calculated on the same basis), such third-party lease shall be deemed to exceed the ROFO Protection Threshold.
6.3 If Landlord does not execute a binding lease with a third party for the ROFO Space within nine (9) months after the expiration of the ROFO Acceptance Period, Landlord's right to lease the ROFO Space without re-offering it to Tenant shall lapse, and Landlord shall be required to re-offer the ROFO Space to Tenant in accordance with the provisions of this Exhibit F (including by delivery of a new ROFO Notice with updated Offered Terms) before leasing the ROFO Space to any third party.
6.4 If, at any time during the nine (9) month period described in Section 6.3, Landlord proposes to lease the ROFO Space to a third party on terms more favorable to such third party than the ROFO Protection Threshold, Landlord shall be required to re-offer the ROFO Space to Tenant in accordance with the provisions of this Exhibit F before consummating such third-party lease. Any such re-offering shall be made by delivery of a new ROFO Notice reflecting the revised Offered Terms, and Tenant shall have a new ROFO Acceptance Period with respect to such re-offering in accordance with Section 4.
Section 7. Recurring Nature of ROFO Right.
7.1 Tenant's ROFO right under this Exhibit F is a recurring right that shall apply each time any ROFO Space becomes Available during the Term of the Lease, including during any Renewal Term exercised by Tenant in accordance with the terms of the Lease, subject in all cases to the subordination to Kestrel's rights set forth in Section 2 and to the satisfaction of the conditions set forth in Section 8.
7.2 Tenant's waiver or rejection of a ROFO Notice with respect to a particular floor shall not extinguish, diminish, or otherwise affect Tenant's ROFO right with respect to (a) any subsequent availability of the same floor (including a re-offering pursuant to Section 6 above), or (b) any availability of any other floor constituting ROFO Space. Each occasion on which ROFO Space becomes Available shall give rise to a separate and independent obligation on the part of Landlord to deliver a ROFO Notice and to comply with the procedures set forth in this Exhibit F.
7.3 The ROFO right shall continue throughout the entire Term of the Lease (including any Renewal Term) until the expiration or earlier termination of the Lease, at which time all ROFO rights under this Exhibit F shall automatically terminate without further action by either party.
Section 8. Conditions to Exercise.
8.1 Tenant's right to exercise the ROFO right under this Exhibit F is subject to the satisfaction of each of the following conditions at both (a) the time of Tenant's delivery of the ROFO Acceptance Notice and (b) the time of execution of the amendment to the Lease (or separate lease) incorporating the ROFO Space:
(a) The Lease is in full force and effect and has not been terminated or expired;
(b) No Event of Default (as defined in the Lease) by Tenant exists under the Lease, and no condition or circumstance exists which, with the giving of notice by Landlord, the passage of any applicable cure period, or both, would constitute an Event of Default by Tenant under the Lease;
(c) Tenant has not assigned the Lease to any party other than pursuant to a Permitted Assignment (as defined in the Lease), including without limitation a change of control assignment as permitted under the applicable provisions of the Lease, and Tenant has not sublet more than forty percent (40%) of the rentable area of the Premises (as such Premises exist immediately prior to the proposed addition of the ROFO Space, and excluding any subletting to an Affiliate (as defined in the Lease) that constitutes a Permitted Assignment under the Lease).
8.2 If any of the foregoing conditions are not satisfied at either of the times specified in Section 8.1, Landlord shall have no obligation to deliver a ROFO Notice to Tenant or to offer the ROFO Space to Tenant, and Landlord may lease such ROFO Space to any third party without restriction and without compliance with the procedures set forth in this Exhibit F. In such event, Landlord shall provide written notice to Tenant stating that the conditions to exercise have not been satisfied, specifying the condition(s) that are not met. Tenant's ROFO right shall be revived if and when all conditions set forth in Section 8.1 are subsequently satisfied, provided that the Lease remains in effect.
8.3 The foregoing conditions are for the sole benefit of Landlord, and Landlord may waive any such condition in its sole and absolute discretion, without creating any precedent or obligation to waive such condition in the future.
Section 9. ROFO Right Personal to Tenant.
9.1 The right of first offer set forth in this Exhibit F is personal to Aurelius Media Holdings Inc. and any successor entity to which the Lease has been assigned pursuant to a change of control assignment as defined in and permitted by the Lease. The ROFO right may not be exercised by, transferred to, or assigned to any subtenant, assignee (other than a successor entity resulting from a change of control assignment as defined in the Lease), licensee, concessionaire, or other transferee of the Lease or any interest therein.
9.2 Any attempted exercise of the ROFO right by any person or entity other than Aurelius Media Holdings Inc. (or a permitted change of control successor) shall be null, void, and of no force or effect. In the event that the Lease is assigned to any party other than a permitted change of control successor, the ROFO right set forth in this Exhibit F shall automatically terminate as of the effective date of such assignment, without further notice or action by Landlord.
Section 10. Interaction with Expansion Option.
10.1 Tenant's ROFO right under this Exhibit F is independent of, and in addition to, Tenant's expansion option set forth in Exhibit E to the Lease (which expansion option applies to Floors 39 and 40 of the Building). The existence or exercise of Tenant's rights under one such exhibit shall not limit, reduce, or otherwise affect the existence or exercise of Tenant's rights under the other.
10.2 If Tenant exercises the expansion option under Exhibit E with respect to Floors 39 and 40 (or either of them), Tenant's ROFO right under this Exhibit F with respect to Floors 30 through 33 shall remain in full force and effect, and Landlord shall continue to be obligated to deliver ROFO Notices with respect to Available ROFO Space in accordance with the terms hereof.
10.3 Conversely, if Tenant exercises its ROFO right with respect to one or more floors of ROFO Space under this Exhibit F, Tenant's expansion option under Exhibit E with respect to Floors 39 and 40 shall remain in full force and effect in accordance with its terms.
Section 11. Notices.
11.1 All notices, demands, requests, consents, approvals, and other communications required or permitted to be given under this Exhibit F (including, without limitation, the ROFO Notice and the ROFO Acceptance Notice) shall be in writing and shall be given in the manner and to the addresses specified in the notice provisions of the Lease. Any change in the address for notices made in accordance with the Lease shall be effective for purposes of this Exhibit F without the need for any separate notice under this Exhibit F.
Section 12. Governing Law; Dispute Resolution.
12.1 This Exhibit F shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within the State of New York, without regard to conflicts of law principles that would require the application of the laws of any other jurisdiction.
12.2 Any dispute, controversy, or claim arising out of or relating to this Exhibit F, or the breach, termination, or validity thereof, shall be resolved in accordance with the dispute resolution provisions set forth in the Lease. Without limiting the generality of the foregoing, the parties agree that any action or proceeding arising under this Exhibit F shall be brought exclusively in the Supreme Court of the State of New York, County of New York, and each party hereby consents to the personal jurisdiction of such court and waives any objection to venue in such court.
[Remainder of page intentionally left blank]
ACKNOWLEDGED AND AGREED
The undersigned parties acknowledge that this Exhibit F is attached to and incorporated into the Lease as of the date first set forth in the Lease.
LANDLORD:
GREYSTONE METROPOLITAN REALTY LLC, a Delaware limited liability company
By: ________
Name: Jonathan R. Whitfield
Title: Senior Vice President — Leasing
Date: ________
TENANT:
AURELIUS MEDIA HOLDINGS INC., a Delaware corporation
By: ________
Name: Catherine S. Park
Title: Executive Vice President and General Counsel
Date: ________

EXHIBIT F

RIGHT OF FIRST OFFER TERMS

ACKNOWLEDGED AND AGREED

LANDLORD:

TENANT:

Record

Parties

Dates

Amounts