**Exhibit 10.2**

 

PARAMOUNT GROUP, INC.as Agent for

 

1325 AVENUE OF THE AMERICAS, L. P.

 

Landlord,

 

-and-

 

CROWN MEDIA UNITED STATES, LLC

 

Tenant.

 

**LEASE**

 

Dated: September 8th, 2008

 

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TABLE OF CONTENTS

 
| **Article**                                                         | ** ** | **Page** |
|---------------------------------------------------------------------|------------|----------|
|                                                                |       |     |
| **ARTICLE 1**                                                       | ** ** | **3**    |
| **Premises, Term, Purposes and Rent**                               | ** ** | **3**    |
| **ARTICLE 2**                                                       | ** ** | **5**    |
| **Completion and Occupancy**                                        | ** ** | **5**    |
| **ARTICLE 3**                                                       | ** ** | **6**    |
| **Use of Premises**                                                 | ** ** | **6**    |
| **ARTICLE 4**                                                       | ** ** | **7**    |
| **Appurtenances, Etc., Not to be  Removed**                         | ** ** | **7**    |
| **ARTICLE 5**                                                       | ** ** | **9**    |
| **Various Covenants**                                               | ** ** | **9**    |
| **ARTICLE 6**                                                       | ** ** | **18**   |
| **Changes or Alterations by  Landlord**                             | ** ** | **18**   |
| **ARTICLE 7**                                                       | ** ** | **20**   |
| **Damage by Fire, Etc.**                                            | ** ** | **20**   |
| **ARTICLE 8**                                                       | ** ** | **22**   |
| **Condemnation**                                                    | ** ** | **22**   |
| **ARTICLE 9**                                                       | ** ** | **24**   |
| **Compliance with Laws**                                            | ** ** | **24**   |
| **ARTICLE 10**                                                      | ** ** | **25**   |
| **Accidents to Plumbing and Other  Systems**                        | ** ** | **25**   |
| **ARTICLE 11**                                                      | ** ** | **26**   |
| **Notices**                                                         | ** ** | **26**   |
| **ARTICLE 12**                                                      | ** ** | **28**   |
| **Conditions of Limitation**                                        | ** ** | **28**   |
| **ARTICLE 13**                                                      | ** ** | **30**   |
| **Re-entry by Landlord**                                            | ** ** | **30**   |
| **ARTICLE 14**                                                      | ** ** | **31**   |
| **Damages**                                                         | ** ** | **31**   |
| **ARTICLE 15**                                                      | ** ** | **33**   |
| **Waivers by Tenant**                                               | ** ** | **33**   |
| **ARTICLE 16**                                                      | ** ** | **34**   |
| **Waiver of Trial by Jury**                                         | ** ** | **34**   |
| **ARTICLE 17**                                                      | ** ** | **34**   |
| **Elevators, Cleaning, Heating, Air  Conditioning, Services, Etc.** | ** ** | **34**   |
| **ARTICLE 18**                                                      | ** ** | **37**   |
| **Lease Contains All Agreements—No  Waivers**                  | ** ** | **37**   |
| **ARTICLE 19**                                                      | ** ** | **39**   |
| **Parties Bound**                                                   | ** ** | **39**   |
| **ARTICLE 20**                                                      | ** ** | **41**   |
| **Curing Tenant’s  Defaults—Additional Rent**             | ** ** | **41**   |
| **ARTICLE 21**                                                      | ** ** | **43**   |
| **Inability to Perform**                                            | ** ** | **43**   |

 

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| **ARTICLE 22**                                                | ** ** | **43**   |
|---------------------------------------------------------------|------------|----------|
| **Adjacent Excavation—Shoring**                          | ** ** | **43**   |
| **ARTICLE 23**                                                | ** ** | **44**   |
| **Article Headings**                                     | ** ** | **44**   |
| **ARTICLE 25**                                                | ** ** | **49**   |
| **Assignment, Mortgaging,  Subletting, Etc.**                 | ** ** | **49**   |
| **ARTICLE 26**                                                | ** ** | **57**   |
| **Escalations**                                               | ** ** | **57**   |
| **ARTICLE 27**                                                | ** ** | **62**   |
| **Subordination**                                             | ** ** | **62**   |
| **ARTICLE 28**                                                | ** ** | **65**   |
| **Miscellaneous**                                             | ** ** | **65**   |
| **ARTICLE 29**                                                | ** ** | **71**   |
| **Layout and Finish**                                         | ** ** | **71**   |
| **ARTICLE 30**                                                | ** ** | **72**   |
| **Insurance**                                                 | ** ** | **72**   |
| **ARTICLE 31**                                                | ** ** | **73**   |
| **Security Deposit**                                          | ** ** | **73**   |
| **ARTICLE 32**                                                | ** ** | **73**   |
| **Guarantor**                                                 | ** ** | **73**   |
| **ARTICLE 33**                                                | ** ** | **74**   |
| **Quiet Enjoyment**                                           | ** ** | **74**   |
| **RULES AND REGULATIONS**                                     | ** ** | **RR-1** |
| **EXHIBIT A**                                                 | ** ** | **A-1**  |
| **RENTAL PLAN**                                               | ** ** | **A-1**  |
| **EXHIBIT B**                                                 | ** ** | **B-1**  |
| **OPERATING EXPENSES**                                        | ** ** | **B-1**  |
| **EXHIBIT C**                                                 | ** ** | **C-1**  |
| **HEATING, VENTILATING AND  AIR-CONDITIONING SPECIFICATIONS** | ** ** | **C-1**  |
| **EXHIBIT D**                                                 | ** ** | **D-1**  |
| **CLEANING AND JANITORIAL SERVICES**                          | ** ** | **D-1**  |

 

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**LEASE**

 

LEASE, dated as of September 8th, 2008, between PARAMOUNT GROUP, INC., as Agent for 1325 AVENUE OF THEAMERICAS, L. P. (Landlord), having offices at 1633 Broadway, Suite 1801,New York, NY 10019 and CROWN MEDIA UNITED STATES, LLC (Tenant), a Delawarelimited liability company with a Federal Tax Identification Number of13-3840478, and having an office at 1325 Avenue of the Americas, New York, NY10019 (Lease).

 

WITNESSETH:

 

**ARTICLE 1**

 

**Premises, Term, Purposes and Rent**

 

Section 1.01                                Landlord does hereby lease to Tenant, andTenant does hereby hire from Landlord, subject to any ground and/or underlyingleases and/or mortgages as herein provided, and upon and subject to thecovenants, agreements, terms, provisions and conditions of this Lease, for theterm herein stated, a portion of the 22nd floor substantially asshown hatched on the rental plan annexed hereto as Exhibit A, in thebuilding known as 1325 Avenue of the Americas and located at 1325 Avenue of theAmericas, New York, New York (Building). Said leased premises, together withall Appurtenances, as herein defined, (except Tenant’s Property, hereindefined) are herein called the “Premises”. The plot of land on which theBuilding is located is herein called the “Land”.

 

Section 1.02                                The term of this Lease shall commence May 1,2009 (subject to Section 2.02 hereof) (Term Commencement Date) and shallend on April 30, 2016 (Expiration Date) or on such earlier date upon whichsaid term may expire or be terminated as herein provided or pursuant to law.Notwithstanding the Term Commencement Date, this Lease shall be effective from andafter the date hereof and all of the provisions of this Lease shall beeffective as of the date hereof, except for those provisions which specificallycommence from and after the Term Commencement Date.

 

Section 1.03                                The Premises shall be used for the following,but no other purpose, namely: executive and general offices of Tenant (andcustomary ancillary uses associated therewith provided the same do nototherwise violate the

 

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Certificateof Occupancy for the Building or the remaining terms and conditions of thisLease).

 

Section 1.04                                The rent reserved under this Lease for theterm hereof shall be and consist of the following fixed rent (Fixed Rent),namely:            per annum,commencing on the Term Commencement Date and continuing through June 15,2014; and            perannum commencing on June 16, 2014, and continuing through the balance ofthe Lease term. The Fixed Rent shall be payable in equal monthly installmentsin advance on the first day of each and every calendar month during said term,plus such additional rent and other charges as shall become due and payablehereunder, which additional rent and other charges shall be payable as hereinprovided; all to be paid to Landlord at Post Office Box 1125A, New York, NY10286-1125, or such other place as Landlord may designate, in lawful money ofthe United States of America.

 

Section 1.05                                Tenant does hereby covenant and agreepromptly to pay the Fixed Rent, additional rent and other charges hereinreserved as and when the same shall become due and payable, without demandtherefor, and without any setoff or deduction whatsoever, and to keep, observeand perform, and permit no violation of, each of Tenant’s obligationshereunder. If the Fixed Rent shall commence on any date other than the firstday of a calendar month, the Fixed Rent for such calendar month shall beprorated.

 

Section 1.06                                The parties hereby agree that for allpurposes of this Lease the rentable area of the Premises is deemed to be 16,937square feet. Neither party shall make any claim for either an increase ordecrease in Fixed Rent or additional rent based on the rentable area of thePremises or any portion thereof being other than as set forth in the precedingsentence.

 

Section 1.07                                In the event that the Term Commencement Dateor Expiration Date is not a date certain, then Tenant agrees to execute, withinten (10) days after Landlord makes a request therefor, an agreementsetting forth such dates, provided, however, that Tenant’s failureto execute said agreement shall in no way affect such dates or the validity ofthis Lease.

 

Section 1.08                                If any of the Fixed Rent or additional rentpayable under this Lease shall be or become uncollectible, reduced or requiredto be refunded because of any legal requirements, Tenant shall enter into suchagreement(s) and take such other legally permissible steps as Landlord mayrequest to permit Landlord to collect the maximum rents which from time to

 

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timeduring the continuance of such legal requirements may be legally permissibleand not in excess of the amounts reserved therefor under this Lease. Upon thetermination of such legal requirements, (a) the rents hereunder shall bepayable in the amounts reserved herein for the periods following suchtermination and (b) Tenant shall pay to Landlord, to the maximum extentlegally permissible, an amount equal to (i) the rents which would havebeen paid pursuant to this Lease but for such legal requirements less (ii) therents paid by Tenant during the period such legal requirements were in effect.

 

Section 1.09                                In the event any of the conditionshereinafter set forth in Sections 12.01(a), 12.01(b) or 12.01(c) of this Leaseoccur at any time prior to the Term Commencement Date, then notwithstandinganything in this Lease or in any bankruptcy or insolvency law to the contrary,this Lease shall thereupon automatically become null and void ab initio.

 

Section 1.10                                Provided that Tenant is not in default of anyof the terms, conditions, covenants or agreements of this Lease on its part tobe performed, the Fixed Rent shall be abated through June 15, 2009. June 16,2009 shall herein be called the “Rent Commencement Date.”

 

**ARTICLE 2**

 

**Completion and Occupancy**

 

Section 2.01                                Tenant acknowledges that it has inspected thePremises and agrees to accept possession of same in its “as-is” physicalcondition on the Term Commencement Date, it being understood and agreed thatLandlord shall not be obligated to perform any alterations, improvements orrepairs to the Premises or furnish to or remove from the Premises anyalterations, improvements, fixtures, materials or any other propertywhatsoever. Tenant further acknowledges that it shall not be entitled to anyfree rent (except as provided in Section 1.10 above), concessions, creditsor contributions of money from Landlord with respect to the Premises, exceptthat: (i) if Tenant paints the Premises during the Lease term, Tenantshall receive a one time allowance of           from Landlord; and (ii) if Tenant replaces its supplemental/Liebert unitsduring the Lease term, Tenant shall receive a one time allowance of           from Landlord. The foregoing allowances shall be payable within thirty (30)days after Landlord’s receipt of any documentation reasonably required byLandlord.

 

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Section 2.02                                Tenant shall occupy the Premises as soon asthe same are available for occupancy. Landlord and Tenant agree that anyfailure to have the Premises available to Tenant for its occupancy on a datecertain shall in no way affect the validity of this Lease or the obligations ofTenant hereunder nor shall the same be construed in any wise to extend the termof this Lease or impose any liability on Landlord. The provisions of this Section 2.02are intended to constitute “an express provision to the contrary” within themeaning of Section 223-a of the New York Real Property Law and any othersimilar law hereafter in force. The Fixed Rent reserved and covenanted to bepaid under this Lease shall commence on the Rent Commencement Date. Tenant, byentering into occupancy of any part of the Premises, shall be conclusivelydeemed to have agreed that Landlord, up to the time of such occupancy, had performedall of its obligations hereunder with respect to such part and that such partwas in satisfactory condition as of the date of such occupancy unless withinten (10) days after such date Tenant shall give written notice to Landlordspecifying the respects in which the same was not in such condition.

 

**ARTICLE 3**

 

**Use of Premises**

 

Section 3.01                                Tenant shall not use the Premises or any partthereof, or permit the Premises or any part thereof to be used in any mannerwhich would violate the Certificate of Occupancy for the Building or, for anypurpose other than the use hereinbefore specifically mentioned. Those portions,if any, of the Premises, identified as toilets and utility areas shall be usedby Tenant only for the purposes for which they are designed.

 

Section 3.02                                Tenant shall not use or permit the use of thePremises or any part thereof in any way which would violate any of thecovenants, agreements, terms, provisions and conditions of this Lease or forany unlawful purposes or in any unlawful manner and Tenant shall not suffer orpermit the Premises or any part thereof to be used in any manner or anything tobe done therein or anything to be brought into or kept therein which, in thejudgment of Landlord, shall in any way impair or tend to impair the character,reputation or appearance of the Building as a high quality office building,impair or interfere with or tend to impair or interfere with any of theBuilding services or the proper and economic heating, cleaning, airconditioning or other servicing of the Building or Premises, or impair orinterfere with or tend to impair or interfere with the use of any of the otherareas of the Building by, or occasion

 

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discomfort,inconvenience or annoyance to, any of the other tenants or occupants of theBuilding. No property other than such as might normally be brought upon or keptin the Premises as an incident to the reasonable use of the Premises for thepurposes specified in this Lease shall be brought upon or kept in the Premises.

 

Section 3.03                                If any governmental license or permit shallbe required for the proper and lawful conduct of Tenant’s business or otheractivity carried on in the Premises, and if the failure to secure such licenseor permit might or would, in any way, affect Landlord, then Tenant, at Tenant’sexpense, shall duly procure and thereafter maintain such license or permit andsubmit the same to inspection by Landlord. Tenant, at Tenant’s expense, shallat all times comply with the requirements of each such license or permit.

 

**ARTICLE 4**

 

**Appurtenances, Etc., Not to be Removed**

 

Section 4.01                                All alterations, additions, decorations,fixtures, equipment, improvements, installations and appurtenances attached to,or built into the Premises prior to, at the commencement of or during the termhereof (Appurtenances), whether or not furnished or installed at the expense ofTenant or by Tenant, including without limitation, Tenant’s Changes as definedin Section 5.01(e) hereof, shall be and remain part of the Premisesand be deemed the property of Landlord and shall not be removed by Tenant,except as otherwise expressly provided in this Lease. Without limiting thegenerality of the immediately preceding sentence, all electric, plumbing,heating, sprinkler, dumbwaiter, elevator, pneumatic tube, telephone, telegraph,communication, radio and television systems, fixtures and outlets, venetianblinds, partitions, railings, gates, doors, stairs, paneling, cupboards(whether or not recessed in paneling), molding, shelving, radiator enclosures,cork, rubber, tile and composition floors, and ventilating, silencing, airconditioning and cooling equipment shall be deemed included in suchAppurtenances, if attached to or built into the Premises. Appurtenances shallalso include, without limitation, all wiring, cables, risers and similarinstallations appurtenant thereto installed by Tenant in the risers or othercommon areas of the Building. Notwithstanding anything contained in this Section 4.01to the contrary, any Appurtenances furnished and installed in any part of thePremises at the sole expense of Tenant (and with respect to which no credit orallowance shall have been granted to Tenant by Landlord and which was notfurnished and

 

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installed in replacement of an item which Tenant would not be entitledto remove in accordance with this Article 4) and all of Tenant’s personalproperty (such Appurtenances as referred to in this sentence and Tenant’spersonal property collectively “Tenant’s Property”) may be removed from theBuilding by Tenant prior to the Expiration Date, provided however, if and tothe extent requested by Landlord prior to the Expiration Date, allAppurtenances, Tenant’s Property and Tenant’s Changes so requested by Landlordshall be removed from the Building by Tenant prior to such Expiration Date.Tenant shall repair, restore, replace and/or rebuild (as the circumstances mayrequire), in a good and workmanlike manner any damage to the Premises or theBuilding caused by such removal. At the time of installing any Appurtenance,Tenant’s Property or Tenant’s Changes, Tenant may request Landlord to waiveTenant’s obligation to remove in writing. Tenant shall not be obligated toremove any such Appurtenance, Tenant’s Property or Tenant’s Changes which arethe subject of any such written waiver signed by Landlord but must provide acopy of such written waiver in the event that a dispute arises. Failure toprovide a copy of any such waiver shall be presumptive evidence that a waiverwas not granted. If any of the Appurtenances, Tenant’s Property or Tenant’sChanges which are required to be removed from the Building by Tenant are not soremoved within the time above specified, then Landlord (in addition to allother rights and remedies to which Landlord may be entitled at any time) may atits election deem that the same has been abandoned by Tenant to Landlord, butno such election shall relieve Tenant of Tenant’s obligation to pay theexpenses of removing the same from the Premises or the expense of repairing,restoring, replacing and/or rebuilding (as the circumstances may require)damage to the Premises or to the Building arising from such removal, whichobligation shall survive the Expiration Date. Notwithstanding the foregoing,Tenant may, prior to the Expiration Date, remove the supplemental power andcooling and audio/visual equipment and related racks and wiring, includingTenant’s IT equipment, wiring and related racks.

 

Section 4.02                                Allthe perimeter walls and doors of the Premises, any balconies, terraces or roofsadjacent to the Premises, and any space in and/or adjacent to the Premises usedfor shafts, stairways, stacks, pipes, vertical conveyors, mail chutes,pneumatic tubes, conduits, ducts, electric or other utilities, rooms containingelevator or air conditioning machinery and equipment, sinks, or other similaror dissimilar Building facilities, and the use thereof, as well as accessthereto (including the right to secure same) through the Premises for thepurpose of such use and the operation, improvement, alteration, replacement,addition, repair, cleaning,

 

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maintenance, safety, security, and/or decoration thereof, are expresslyreserved to Landlord.

 

**ARTICLE 5**

 

**Various Covenants**

 

Section 5.01                                Tenantcovenants and agrees that Tenant will:

 

(a)                                  Take good care of andmaintain in good order, condition and repair the Premises and Appurtenances,and, at Tenant’s sole cost and expense, make all non-structural repairs,restorations and/or replacements thereto as may be required to keep thePremises and Appurtenances in good order and condition. Tenant shall also beresponsible for the cost of all repairs, interior and exterior, structural andnon-structural, ordinary and extraordinary, foreseen or unforeseen, in and tothe Building and the facilities and systems thereof, the need for which arisesout of (i) the performance or existence of Tenant’s Changes (hereindefined), (ii) the installation, use or operation of Tenant’s Property, (iii) themoving of Tenant’s Property into or out of the Premises or the Building, (iv) Tenant’scompliance or non-compliance with any legal and/or insurance requirements or (v) theact, omission, misuse or neglect of Tenant or any of its subtenants or its ortheir agents, licensees or invitees. Any repairs in or to the Building and/orthe facilities and systems thereof for which Tenant is so responsible shall beperformed by Landlord at Tenant’s expense and Tenant shall pay Landlord’scharge therefor as additional rent hereunder within ten (10) days afterLandlord gives Tenant an invoice therefor. All repairs and replacements made byor on behalf of Tenant or any person claiming through or under Tenant shall bemade in conformity with the provisions of this Lease and shall be at leastequal in quality and class to the original work or installation or the thenstandards for the Building established by Landlord.

 

(b)                                 Faithfully observe andcomply (and cause its agents, employees, invitees and licensees to observe andcomply) with the rules and regulations annexed hereto and such additionalreasonable rules and regulations as Landlord hereafter at any time or fromtime to time may make and may communicate in writing to Tenant, provided,however, that in the case of any conflict between the provisions of this Leaseand such rule or regulation, the provisions of this Lease shall control;and provided further that nothing contained in this Lease shall be construed toimpose upon Landlord any duty or obligation to enforce the rules andregulations or the terms, covenants or conditions in any other

 

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lease as against any other tenant and; provided further that Landlordshall not be liable to Tenant for violation of the same by any other tenant,its employees, agents, visitors, invitees, subtenants or licensees. Inenforcing the rules and regulations, Landlord agrees to treat similarlysituated tenants in a similar fashion.

 

(c)                                  Permit Landlord andany mortgagee of the Building and/or the Land or of the interest of Landlordtherein and any lessor under any ground or underlying lease, and theirrepresentatives, to enter the Premises at all reasonable hours upon reasonableprior oral notice (except in the case of an emergency when no notice will berequired) for the purposes of inspection, or of making repairs, replacements orimprovements in or to the Premises or the Building or equipment, or ofcomplying with all laws, orders and requirements of governmental or otherauthority or of fulfilling any obligation or exercising any right reserved toLandlord by this Lease (including the right during the progress of suchrepairs, replacements or improvements or while performing work and furnishing materialsin connection with compliance with any such laws, orders or requirements, tokeep and store within the Premises all necessary materials, tools andequipment), subject to Section 5.02(a) hereof.

 

(d)                                 Make no claim againstLandlord, or any lessor under any ground or underlying lease, or any mortgageeunder any mortgage or trust indenture (collectively herein the “Indemnitees”)for any damage to property entrusted to employees of Landlord or for any lossof or damage to any property by theft (including damage resulting from theft orattempted theft) or any injury or damage to Tenant or other persons or propertyresulting from fire, explosion, falling plaster, steam, gas, electricity,water, rain or snow or leaks from any part of the Building or from the pipes,appliances or plumbing works or from the roof, street or subsurface or from anyother place or by dampness, or caused by other tenants or persons in theBuilding, or by any other cause of whatsoever nature (including, withoutlimitation, damage or injury caused by any hazardous or dangerous condition,waste, material and/or substance (as the same may be defined in any local,state or federal rule, regulation or statute)), unless caused by or due to thesole negligence of Landlord, its agents, servants or employees.

 

(e)                                  (i)    Makeno alterations, decorations, installations, repairs, additions, improvements orreplacements including Tenant’s initial work in the Premises necessary forTenant’s occupancy thereof (herein collectively called “Tenant’s Changes”) in,to or about the Premises without Landlord’s prior written consent; provided,however, Landlord agrees (1) that

 

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Tenantshall not be required to obtain Landlord’s prior written consent to Tenant’sChanges which (a) are non-structural and decorative in nature and/or donot involve the perforation of any floor slab, (b) do not connect to oradversely affect any of the Building’s systems, (c) are not visible fromoutside the Premises, (d) do not cost in excess of $25,000 in theaggregate (excluding paint or carpeting) in any twelve (12) month period, (e) donot affect, nor are visible from, the exterior of the Building, and (f) donot affect the common corridor of any floor on which the Premises are located(if any) or any other common areas of the Building, provided that Tenant givesLandlord (x) no less than ten (10) business days’ prior writtennotice of its intention to so perform such Tenant’s Changes along with copiesof the plans and specifications related thereto (or a detailed sketch for thoseTenant’s Changes for which plans and specifications are not customarilyprepared) and (y) such other information which Landlord reasonablyrequests with respect thereto within ten (10) business days’ after thesame is requested, and (2) to be reasonable in granting or withholding itsconsent to Tenant’s Changes which meet the criteria set forth in (a), (b), (c),(e), and (f) but cost in excess of $25,000 (excluding paint or carpeting)in the aggregate in any twelve (12) month period. Tenant’s Changes shall onlybe performed by contractors, subcontractors or mechanics approved by Landlord.Tenant’s Changes shall be done at Tenant’s sole expense and at such times andin such manner as Landlord may from time to time designate.

 

(ii)    Priorto the commencement of any Tenant’s Changes (except those which do not requireLandlord’s consent hereunder), Tenant shall submit to Landlord, (1) forLandlord’s written approval, three (3) complete sets of the plans and specifications(to be prepared by and at the expense of Tenant) of such proposed Tenant’sChanges in detail satisfactory to Landlord, and (2) upon Landlord’s request, atTenant’s sole cost and expense, either (i) a completion bond, issued by asurety company acceptable to Landlord in an amount at least equal to theestimated cost of such Tenant’s Changes or (ii) at Tenant’s option, anirrevocable letter of credit, drawn on a bank which is a member of The New YorkClearing House Association and otherwise satisfactory to Landlord, in an amountequal to one hundred twenty-five percent (125%) of Landlord’s estimate of thecost of performing such Tenant’s Changes, in each case guaranteeing to Landlordthe completion of such Tenant’s Changes within a reasonable time, as follows:(A) free and clear of all liens, conditional bills of sale, security agreementsand other claims, charges and encumbrances (other than security agreements orother encumbrances in favor of any mortgagee of Landlord) and (B) in accordancewith the requirements of this Lease. Landlord shall

 

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respondto Tenant’s request for approval of Tenant’s plans within fifteen (15) businessdays after Landlord’s receipt of such plans. In no event shall any material orequipment be incorporated in or to the Premises in connection with any suchTenant’s Changes which is subject to any lien, security agreement, charge,mortgage or other encumbrance of any kind whatsoever or is subject to anyconditional sale or other similar or dissimilar title retention agreement. Anymechanic’s lien filed against the Premises or the Building for work done for,or claimed to have been done for, or materials furnished to, or claimed to havebeen furnished to, Tenant shall be discharged by Tenant within ten (10) daysthereafter, at Tenant’s expense, by filing the bond required by law orotherwise.

 

(iii)    AllTenant’s Changes shall at all times comply with (x) all applicable laws,rules, orders and regulations of governmental authorities having jurisdictionthereover and all applicable insurance requirements, (y) the rules andregulations of Landlord for tenant alterations, and (z) the plans andspecifications submitted to and approved by Landlord and Tenant’s constructioncontract incorporating such plans and specifications. In connection with anyTenant’s Changes which require Landlord’s consent hereunder, Tenant shall payto Landlord, as additional rent, within ten (10) days after demand: (1) afee equal to the actual out-of-pocket costs incurred by Landlord in connectionwith, or relating to, any such Tenant’s Changes and (2) an additional feeequal to ten percent (10%) of the total cost of such Tenant’s Changes(including painting) as and for any review, supervision, inspection orcoordination work by Landlord in connection with such Tenant’s Changes. NoTenant’s Changes which require Lender’s consent hereunder shall be undertaken,started or begun by Tenant or by its agents, employees, contractors or anyoneelse acting for or on behalf of Tenant until Landlord has approved such plansand specifications, and no amendments or additions to such plans andspecifications shall be made without the prior written consent of Landlord.Unless all of the conditions contained in this Section 5.01(e) arefully satisfied, Landlord shall have the right, in Landlord’s sole and absolutediscretion, to withhold its consent to any Tenant’s Changes. Landlord’s consentto such plans and specifications shall create no responsibility or liability onthe part of Landlord with respect to their completeness, design sufficiency orcompliance with all applicable laws and/or insurance requirements; nor shallLandlord’s execution of any documents required to be filed with anygovernmental authority in connection with Tenant’s installations or changescreate any responsibility or liability on the part of Landlord to take remedialmeasures to bring any Tenant’s installations or changes into compliance withapplicable legal and/or insurance

 

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requirements (such responsibility or liability being allocated hereunderto Tenant). If any Tenant’s Changes are made or installed in violation of this Section 5.01(e),Landlord may, at Tenant’s sole cost and expense, without incurring anyliability to Tenant whatsoever, enter upon the Premises and remove suchillegitimate Tenant’s Changes and repair any damage caused by the installationand/or removal of the same.

 

(iv)    Inconnection with the completion of Tenant’s Changes or in the performance of anyother activities within the Building by or on behalf of Tenant: (a) neitherTenant nor its agents, contractors or subcontractors shall interfere with theoperations of the Building or any work being done by Landlord or its agents,contractors or subcontractors in the Building; (b) Tenant shall complywith any reasonable work schedule, rules and regulations proposed byLandlord or its agents; (c) Tenant shall conform to all of Landlord’slabor regulations and shall not do or permit anything to be done that mightcreate any work stoppage, picketing or other labor disruption or dispute; and (d) thelabor employed or contracted for by Tenant shall be harmonious and compatiblewith the labor employed or contracted for by Landlord in the Building, it beingagreed that, if in Landlord’s judgment Tenant’s labor is incompatible, Tenantshall forthwith upon Landlord’s demand withdraw Tenant’s labor from thePremises. If Tenant fails to take any such actions regarding labor matters,Landlord shall have the right, in addition to any other rights and remediesavailable to it under this Lease or pursuant to law or equity, to seekimmediate injunctive relief. Tenant further agrees that it will, prior to thecommencement of any work in the Premises, deliver to Landlord originalcertificates of insurance evidencing worker’s compensation, public liability,property damage and such other insurance coverages in such amounts as areacceptable to Landlord in connection with Tenant’s Changes. Tenant shall keeprecords of Tenant’s Changes costing in excess of $25,000, and of the costthereof for a period of four (4) years. Tenant shall, within forty-five(45) days after demand by Landlord, furnish to Landlord copies of such records.Upon completion of any Tenant Changes, Tenant shall deliver to Landlorddimensioned reproducible mylars and CADD disk of “as-built” plans for suchTenant Changes.

 

(f)    Notdo or permit to be done any act or thing in the Premises which will invalidateor be in conflict with fire insurance policies issued for office buildings inthe Borough of Manhattan, City of New York, and not do anything or permitanything to be done, or keep anything or permit anything to be kept, in thePremises which would increase the fire or other casualty insurance rate on theBuilding or the property therein,

 

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or which would result in insurance companies of good standing refusingto insure the Building or any such property in amounts and against risks asreasonably determined by Landlord, or otherwise result in non-compliance withthe requirements and recommendations of the National Board of Fire Underwritersor similar organizations promulgating requirements and recommendations withrespect to the Premises. If by reason of failure of Tenant to comply with theprovisions of this paragraph including, but not limited to, the mere use towhich Tenant puts the Premises, the fire insurance rate payable by Landlordshall at the beginning of this Lease or at any time thereafter be higher thanit otherwise would be, then Tenant shall reimburse Landlord, as additional renthereunder, for that part of all fire insurance premiums thereafter paid byLandlord which shall have been charged because of such failure or use byTenant, and shall make such reimbursement upon the first day of the monthfollowing such outlay by Landlord. In any action or proceeding wherein Landlordand Tenant are parties, a schedule or “make up” rate for the Building orPremises issued by the New York Fire Insurance Rating Organization, or otherbody making fire insurance rates for the Premises, shall be conclusive evidenceof the facts therein stated and of the several items and charges in the fireinsurance rate then applicable to the Premises. That the Premises are beingused for the purpose set forth in Article 3 hereof, shall not relieveTenant from the foregoing duties, obligations and expenses (except that ifpremiums are being raised generally for office buildings then such increaseshall be reflected as part of Operating Expenses, as herein defined).

 

(g)    PermitLandlord, at reasonable times upon reasonable prior oral notice, to show thePremises to any lessor under any ground or underlying lease, or any lessee ormortgagee, or any prospective purchaser, lessee, mortgagee, or assignee of anymortgage of the Building and/or the Land or of Landlord’s interest therein, andtheir representatives, and during the period of twelve (12) months immediatelypreceding the Expiration Date with respect to any part of the Premisessimilarly show any part of the Premises to any person contemplating the leasingof all or a portion of the same.

 

(h)    At the end ofthe term, quit and surrender to Landlord the Premises “broom clean” and in goodorder and condition, reasonable wear and tear and damage by casualty excepted,and Tenant shall remove Tenant’s Changes and/or Tenant’s Property as Landlordelects to have Tenant remove. Tenant shall give Landlord sixty (60) days’ priorwritten notice of the day it intends to vacate the Premises. Upon receipt ofsaid notice Landlord and Tenant shall agree on a mutually convenient time, butin no event later than thirty (30) days

 

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priorto the expiration date, in order to perform a joint inspection of the Premises.If the last day of the term of this Lease falls on Sunday or a legal holiday,this Lease shall expire on the business day immediately preceding. Tenantexpressly waives, for itself and for any person claiming through or underTenant, any rights which Tenant or such person may have under the provisions ofSection 2201 of the New York Civil Practice Law and Rules and anysimilar successor law of the same import then in force, in connection with anyholdover proceedings which Landlord may institute to enforce the provisions ofthis paragraph (h). If the Premises shall not be surrendered on the ExpirationDate, Tenant hereby indemnifies Landlord against liability resulting from delayby Tenant in so surrendering the Premises, including any claims made by anysucceeding tenant or prospective tenant founded upon such delay, as well as forany and all loss, liability, damages, costs and expenses (including reasonablecounsel fees and disbursements) incurred in connection therewith. If Tenantshall remain in possession of the Premises after the Expiration Date withoutthe execution of a new lease (whether or not with the consent or acquiescenceof Landlord), Tenant’s occupancy shall be deemed to be that of atenancy-at-will, and in no event from month-to-month or from year-to-year, andit shall be subject to all of the other terms of this Lease applicable thereto,including those set forth in this paragraph (h). In the event that Tenantdefaults or remains in possession of the Premises or any part thereof after theexpiration of the tenancy-at-will created hereby then Tenant’s occupancy shallbe deemed a tenancy-at sufferance and not a tenancy-at-will. Nothing containedherein shall be construed to constitute Landlord’s consent to Tenant holdingover after the Expiration Date or to give Tenant the right to hold over afterthe Expiration Date. During the period in which Tenant holds over, Tenant shallpay rent to Landlord at a monthly rental equal to the greater of (i) two (2) timesthe monthly Fixed Rent, plus all additional rent and other charges last payableby Tenant hereunder, or (ii) Landlord’s then asking price, on a monthlybasis, for comparable space in the Building (or, if Landlord shall have noquoted price, the monthly rental equal to the prevailing rate for comparablespace in comparable buildings in the vicinity of the Building). Tenant’sobligations under this paragraph (h) shall survive the expiration of thisLease.

 

(i)    Atany time and from time to time upon not less than ten (10) business days’prior notice by Landlord to Tenant, execute, acknowledge and deliver toLandlord, or to anyone else Landlord shall designate, a statement of Tenant (orif Tenant is a corporation, an appropriate officer of Tenant) in writingcertifying to Landlord or to anyone else Landlord shall designate that thisLease is unmodified and in full force and effect (or if

 

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therehave been modifications, that the same is in full force and effect as modifiedand stating the modifications), specifying the dates to which the Fixed Rent,additional rent and other charges have been paid in advance, if any, andstating whether or not to the best knowledge of the signer of such certificateLandlord is in default in performance of any provision of this Lease and, ifso, specifying each such default of which the signer may have knowledge, andfurther stating such other items or information as Landlord or Landlord’sdesignee may request, including without limitation, Tenant’s undertaking not topay any rent or other charges for more than a specified period in advance ofthe due dates therefor set forth herein; it being intended that any suchstatement so delivered may be relied upon by the person to whom the statementis given. If Tenant fails to execute and deliver the statement as and whenrequired by this Section 5.01(i), then notwithstanding any other provisionof this Lease, such failure shall constitute a default under this Lease beyondany applicable cure period entitling Landlord to the same rights and remediesas if such default was with respect to nonpayment of Fixed Rent.

 

(j)    Not move any safe, heavy machinery, heavyequipment, freight, bulky matter or fixtures into or out of the Buildingwithout Landlord’s prior written consent not to be unreasonably withheld ordelayed. If such safe, machinery, equipment, freight, bulky matter or fixturesrequire special handling, Tenant agrees to employ only persons holding a MasterRigger’s License to do said work, and that all work in connection therewithshall comply with the Administrative Code of the City of New York.Notwithstanding said consent of Landlord, Tenant shall defend and indemnifyLandlord for, and hold Landlord harmless and free from, all loss, costs,liabilities and damages sustained by person or property, as well as for allexpenses and reasonable attorneys’ fees incurred in connection therewith, andall costs incurred in repairing any damage to the Building or Appurtenances(including, without limitation, Landlord’s charge for any repairs performed byLandlord’s employees).

 

(k)    To the extent not prohibited by applicablelaw, indemnify, defend and save harmless, the Indemnitees, and their respectiveofficers, directors, contractors, agents and employees, from and against anyand all liability (statutory or otherwise), claims, actions, suits, demands,damages, judgments, costs, interest and expenses of any kind or nature ofanyone whomsoever (including, but not limited to, counsel fees anddisbursements incurred in the defense of any action or proceeding), to whichthey may be subject or which they may suffer by reason of any claim for, anyinjury to, or death of, any person or persons, theft or damage to property(including any loss of use thereof) or damage to the Building or Appurtenances

 

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orotherwise arising from or in connection with the use of or from any work,installation or thing whatsoever done (other than by Landlord or its agents oremployees) in or about the Premises and/or the Building prior to, during or subsequentto, the term of this Lease, or arising from any condition of the Premisesand/or the Building due to or resulting from any default by Tenant in theperformance of Tenant’s obligations under this Lease or from any act, omissionor negligence of Tenant or any of Tenant’s officers, directors, agents,contractors, employees, subtenants, licensees or invitees. Where not prohibitedby applicable law, no workers’ compensation claim by any of Tenant’s employeeswill be subrogated against Landlord. Tenant’s obligations under this paragraphshall survive the Expiration Date.

 

(l)    Notdo or permit to be done any act or thing which would cause any hazardous ordangerous condition, waste, material and/or substance (as the same may bedefined in any local, state or federal rule, regulation or statute) to be used,stored, transported, released, handled, produced, created, disposed of, orinstalled in, on, from, or at the Premises and/or the Building, except forsmall amounts of standard office and cleaning supplies; provided that all suchmaterials and/or substances (i) shall at all times be used, stored,transported, released, handled, produced, created, disposed of, and/orinstalled in compliance with all applicable legal and/or insurancerequirements, (ii) shall not create any additional burden on Landlord tonotify other tenants, the public or any governmental authority of the existenceof such materials and/or substances and (iii) shall not cause any increasein Landlord’s insurance rates. Landlord shall not be deemed responsible for andTenant agrees to indemnify and defend Landlord for, and hold Landlord harmlessand free from, any and all loss, liability, damages, costs and expensessustained by person or property and any and all loss, liability, damages, costsand expenses incurred by Landlord with respect to or in settlement of anyclaims or judgments brought in connection with any environmental condition inthe Premises or the Building created or caused by Tenant or its agents,including reasonable counsel fees and disbursements incurred in connectiontherewith. Tenant shall be responsible for all adverse affects of backflow,backfeed, harmonics and other like-type conditions, whether to, in, at, oroutside the Building, which emanate from, are caused by, or relate to thePremises and/or the systems serving the Premises and/or the equipment,machinery, fixtures, furnishings, products and lighting located in thePremises.

 

Section 5.02                                Landlord covenants and agrees that Landlordwill:

 

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(a)                             use reasonable efforts not to interfere withTenant’s business including making excessive noise during such times asLandlord exercises its rights under the various provisions of this Lease whichpermit Landlord to perform work, repairs, improvements, maintenance and/oralterations to the Building (including the Premises) but Landlord shall not berequired to perform the same on an overtime or premium pay basis; and

 

(b)                            give Tenant reasonable prior oral notice ofall entry into the Premises (except in the case of an emergency when no suchnotice shall be required).

 

**ARTICLE 6**

 

**Changes or Alterations by Landlord**

 

Section 6.01                                Landlord reserves the right to make suchchanges, alterations, additions, improvements, repairs or replacements in or tothe Building (including the Premises) and the fixtures and equipment thereof,as well as in or to the street entrances, halls, passages, elevators,escalators, stairways and other parts thereof, and to erect, maintain and usepipes, ducts and conduits in and through the Premises, all as Landlord may deemnecessary or desirable; provided, however, Landlord agrees(subject to Section 5.02(a) hereof) that the end result of any of theforegoing shall not materially interfere with Tenant’s use of the Premises oraccess thereto. Nothing contained in this Article 6 shall relieve Tenantof any duty, obligation or liability of Tenant with respect to making anyrepair, replacement or improvement or complying with any law, order orrequirement of any governmental or other authority.

 

Section 6.02                                Landlord reserves the right to name theBuilding and to change the name or address of the Building at any time and fromtime to time. Neither this Lease nor any use by Tenant shall give Tenant anyeasement or other right in or to the use of any door or any passage or anyconcourse or any plaza connecting the Building with any subway or any otherbuilding or to any public conveniences, and the use of such doors, passages,concourses, plazas and conveniences may, without notice to Tenant be regulatedor discontinued at any time by Landlord. If at any time any windows of thePremises are (i) broken, temporarily darkened (which shall not beconstrued as encompassing any solar-tinting and/or blinds that Landlord mayrequire) or obstructed incident to or by reason of repairs, replacements,maintenance and/or cleaning in, on, to or about the Building or any part or

 

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partsthereof or (ii) permanently darkened (which shall not be construed asencompassing any solar-tinting and/or blinds that Landlord may require) for anyreason whatsoever beyond Landlord’s control or (iii) temporarily orpermanently closed or rendered inoperable for any reason whatsoever including,but not limited to, Landlord’s own acts, Landlord shall not be liable for anydamage Tenant may sustain thereby and Tenant shall not be entitled to anycompensation therefor or abatement of rent nor shall the same release Tenantfrom its obligations hereunder or constitute an eviction, provided Landlordshall promptly repair any damage to the exterior windows of the Premises causedby Landlord, its agents or contractors.

 

Section 6.03                                Except as provided in Article 7 and Section 17.05of this Lease, there shall be no allowance to Tenant for a diminution of rentalvalue, the same shall not constitute an eviction of Tenant in whole or in partand Landlord shall incur no liability whatsoever by reason of inconvenience,annoyance, or injury to business arising from Landlord, Tenant or others makingany changes, alterations, additions, improvements, repairs or replacements inor to any portion of the Building or the Premises or in the Appurtenancesthereof or in the taking or storing of material in the Premises in connectiontherewith and no liability shall be incurred by Landlord for failure ofLandlord or others to make any changes, alterations, additions, improvements,repairs or replacements in or to any portion of the Building or the Premises,or in the Appurtenances.

 

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**ARTICLE 7**

 

**Damage by Fire, Etc.**

 

Section 7.01                                Subject to Section 7.02, if any part ofthe Premises shall be damaged by fire or other casualty, Tenant shall giveprompt written notice thereof to Landlord and Landlord shall proceed withreasonable diligence, and in a manner consistent with the provisions of anyground or underlying lease and any mortgage affecting the same or the Landand/or the Building or Landlord’s interest therein, to repair such damage, andif any part of the Premises shall be rendered untenantable by reason of suchdamage, the annual Fixed Rent payable hereunder shall be abated (not to exceedthe amount Landlord is reimbursed by net insurance proceeds) to the extent thatsuch Fixed Rent relates to such part of the Premises for the period from thedate of such damage to the date when such part of the Premises shall have beenmade tenantable or to such earlier date upon which the full term of this Leasewith respect to such part of the Premises shall expire or terminate. IfLandlord or any holder of any superior mortgage (as herein defined) or anylessor under any superior lease (as herein defined) shall be unable to collectthe insurance proceeds (including rent insurance) applicable to such damagebecause of some action or inaction on the part of Tenant or Tenant’s agents,contractors, employees, guests, invitees or licensees, then Landlord’s chargefor repairing such damage shall be paid by Tenant and there shall be noabatement of rent. Landlord shall not be liable for any inconvenience orannoyance to Tenant or injury to the business of Tenant resulting in any wayfrom such damage or the repair thereof. Tenant acknowledges and agrees thatLandlord shall not: (i) carry insurance of any kind on any Appurtenances,Tenant’s Property, or Tenant’s Changes or (ii) be obligated to repair anydamage thereto or replace any of same, which obligation shall be the soleresponsibility of Tenant.

 

Section 7.02                                If substantial alteration or reconstructionof the Building shall, in the sole opinion of Landlord, be required as a resultof damage by fire or other casualty (whether or not the Premises shall havebeen damaged by such fire or other casualty) or if all or any portion of thePremises shall be damaged by fire or other casualty during the last two (2) yearsof the term of this Lease, then this Lease and the term and estate herebygranted may be terminated by Landlord by its giving to Tenant within onehundred twenty (120) days after the date of such damage written noticespecifying a date, not less than thirty (30) days after the giving of suchnotice, for such termination.

 

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Section 7.03                                Landlord and Tenant shall each secure anappropriate clause in, or an endorsement upon, each all risk property damagepolicy obtained by it and covering the Building, the Premises or Tenant’sProperty pursuant to which the respective insurance companies waive subrogationor permit the insured, prior to any loss, to waive any claim it might haveagainst the other. Provided the terms of the applicable insurance policy willnot be violated or rendered unenforceable, the waiver of subrogation orpermission for waiver of any claim hereinbefore referred to shall extend to theagents of each party.

 

Section 7.04                                Notwithstanding any other provision of thisLease to the contrary (other than the second sentence of Section 7.01)with respect to any property whether insured or not, each party hereby releasesthe other and its partners, agents and employees with respect to any claim(including a claim for negligence) which it might otherwise have against theother party for loss, damage or destruction with respect to its property byfire or other casualty (including rental value or business interruption, as thecase may be) occurring during the term of this Lease. Nothing in this Section 7.04shall relieve Tenant or Landlord of its obligations to make repairs to thePremises in accordance with the terms of this Lease.

 

Section 7.05                                This Lease shall be considered an expressagreement governing any case of damage to or destruction of the Building or anypart thereof by fire or other casualty, and Section 227 of the RealProperty Law of the State of New York providing for such a contingency in theabsence of express agreement, and any other law of like import now or hereafterin force, shall have no application in such case.

 

Section 7.06                                Notwithstanding the above to the contrary, inthe event that more than fifty percent (50%) of the Premises shall be damagedby fire or other casualty and restoration is not substantially completed byLandlord within one (1) year after the occurrence of said casualty,subject to extension for circumstances beyond Landlord’s reasonable control(the “Restoration Period”), then Tenant shall be entitled to terminate thisLease provided Landlord receives a written termination notice (which shall bedeemed irrevocable) from Tenant within twenty (20) business days after theexpiration of the Restoration Period, time being of the essence. In the eventthat Landlord does not receive said notice within said twenty (20) business dayperiod, then Tenant’s right to terminate pursuant to this Section 7.06shall be void and of no further force or effect.

 

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**ARTICLE 8**

 

**Condemnation**

 

Section 8.01                                In the event that the whole of the Premisesshall be lawfully condemned or taken in any manner for any public orquasi-public use, this Lease and the term and estate hereby granted shallforthwith cease and terminate as of the date of vesting of title. In the eventthat only a part of the Premises shall be so condemned or taken, then,effective as of the date of vesting of title, the Fixed Rent hereunder shall beabated in an amount thereof apportioned according to the area of the Premisesso condemned or taken. In the event that only a part of the Building shall beso condemned or taken, then Landlord (whether or not the Premises be affected)may, at Landlord’s option, terminate this Lease and the term and estate herebygranted as of the date of such vesting of title by notifying Tenant in writingof such termination within one hundred twenty (120) days following the date onwhich Landlord shall have received notice of vesting of title. If Landlord doesnot elect to terminate this Lease, as aforesaid, this Lease shall be and remainunaffected by such condemnation or taking, except that the Fixed Rent payablehereunder shall be abated to the extent, if any, hereinbefore provided in this Article 8.In the event that only a part of the Premises shall be so condemned or takenand this Lease and the term and estate hereby granted with respect to theremaining portion of the Premises are not terminated as hereinbefore provided,Landlord will, with reasonable diligence and at its expense, restore theremaining portion of the Premises as nearly as practicable to the samecondition as it was in prior to such condemnation or taking. However, Landlordshall not be obligated to repair any damage to Tenant’s Property or replace thesame.

 

Section 8.02                                In the event of a termination of this Leasepursuant to Section 8.01 of this Article 8, this Lease and the termand estate hereby granted shall expire as of the date of such termination withthe same effect as if that were the date hereinbefore set for the expiration ofthe full term of this Lease, and the Fixed Rent payable hereunder shall beapportioned as of such date.

 

Section 8.03                                In the event of any condemnation or takinghereinbefore mentioned of all or a part of the Building, Landlord shall be entitledto receive the entire award in the condemnation proceeding, including any awardmade for the value of the estate vested by this Lease in Tenant, and Tenanthereby

 

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expresslyassigns to Landlord any and all right, title and interest of Tenant now orhereafter arising in or to any such award or any part thereof, and Tenant shallbe entitled to receive no part of such award. The foregoing shall not prohibitTenant’s independent claim for the value of Tenant’s trade fixtures and movingexpenses and any other claim permitted under law so long as any award made toTenant based upon such claim does not reduce the award otherwise payable toLandlord.

 

Section 8.04                                Notwithstanding anything hereinabove containedin this Article, if all or any portion of the Premises shall be lawfullycondemned or taken for any temporary public or quasi-public use, this Leaseshall not terminate and Tenant shall continue to perform or observe all ofTenant’s obligations hereunder as though such condemnation or taking had notoccurred, except only as Tenant may be prevented from so doing by reason of thelawful use and occupancy of the Premises or portion thereof affected by suchcondemnation or taking during such temporary period. In the event of any suchcondemnation or taking, Tenant shall be entitled to receive the award withrespect to the Premises or portion thereof covered by such condemnation ortaking (whether paid as damages, rent or otherwise), unless the period of occupancyextends beyond the termination of this Lease, in which case Landlord shall beentitled to such part of such award as shall be properly allocable to the costof restoration of the Premises and the balance of said award shall beapportioned between Landlord and Tenant as of the scheduled Expiration Date.

 

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**ARTICLE 9**

 

**Compliance with Laws**

 

Section 9.01                                Tenant, at Tenant’s expense, shall complywith all laws and ordinances, and all rules, orders and regulations of allgovernmental authorities and of all insurance bodies, at any time duly issuedor in force, applicable to the Premises or any part thereof or to Tenant’s useor alteration thereof, except that Tenant shall not hereby be under anyobligation to comply with any law, ordinance, rule, order or regulationrequiring any structural alteration of or in connection with the Premises,unless such alteration is required by reason of a condition which has beencreated by, or at the instance of Tenant, or is attributable to the specificmanner of use (as opposed to mere office use) to which Tenant puts thePremises, or Tenant’s alteration thereof, or is required by reason of a breachof any of Tenant’s covenants and agreements hereunder. Where any structural alterationof or in connection with the Premises is required by any such law, ordinance,rule, order or regulation, and, by reason of the express exception hereinabovecontained, Tenant is not under any obligation to make such alteration, thenLandlord shall make such alteration and, subject to Section 26.04, pay thecost thereof.

 

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**ARTICLE 10**

 

**Accidents to Plumbing and Other Systems**

 

Section 10.01                          Tenant shall give to Landlord prompt written notice of any damage to,or defective condition in, any part or appurtenance of the Building’s plumbing,electrical, heating, air conditioning (excluding any supplemental airconditioning units and equipment servicing the Premises which shall be Tenant’sresponsibility to repair, maintain and replace) or other systems serving,located in, or passing through the Premises (collectively, the “Systems”).Following such notice, any such damage to or defective condition of the Systemsshall be remedied by Landlord with reasonable diligence, but if such damage ordefective condition was caused by, or resulted from the use by, Tenant or bythe employees, agents, licensees or invitees of Tenant, Landlord’s charge forthe remedy thereof shall be paid by Tenant. Tenant shall not be entitled toclaim any damages arising from any such damage or defective condition unlessthe same shall have been caused by the sole negligence of Landlord in theoperation or maintenance of the Premises or Building and the same shall nothave been remedied by Landlord with reasonable diligence after written noticethereof from Tenant to Landlord; nor shall Tenant be entitled to claim anyeviction by reason of any such damage or defective condition. Notwithstandinganything contained in this Lease to the contrary, Landlord shall not beresponsible for repairing any portion of the Systems serving the Premises(whether located within or outside the Premises) which were installed by or onbehalf of Tenant.

 

Section 10.02                          Landlord shall, at its sole cost and expense (except as otherwiseprovided herein), keep and maintain in good repair and working order and makeall repairs to and perform necessary maintenance upon the Building and allparts thereof, including structural elements, life-safety, plumbing, electricaland HVAC systems within the Building which generally service the Building andare required in the normal maintenance and operation of the Building.Notwithstanding anything in this Section 10.02 or elsewhere in this Leaseto the contrary, it is agreed that Landlord is not obligated hereunder tomaintain the Building in any better repair or working order than as it existson the date hereof.

 

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**ARTICLE 11**

 

**Notices and Service of Process**

 

Section 11.01                          (a)  Except as otherwise set forth below, any notice,consent, approval, demand or statement hereunder by either party to the otherparty shall be in writing and shall be deemed to have been duly given only ifsent by (i) registered or certified mail, return receipt requested, or (ii) bymessenger or recognized overnight courier (requiring signed receipt), in eitherevent addressed to such other party, which address for Landlord shall be theaddress as hereinbefore set forth, Attention: Senior Vice President – OfficeBuildings, with copies to the Vice President of Property Management, at theaddress as hereinbefore set, forth, and a copy to the Building Manager, in careof the Building Office, 1325 Avenue of the Americas, New York, NY 10019, andfor Tenant shall be the Premises (or Tenant’s address as hereinbefore set forthif mailed prior to Tenant’s occupancy of the Premises) with a copy to CorporateReal Estate Manager, Hallmark Cards, Inc., 2405 Grand Avenue, Kansas City,MO 64108, or if the address of such other party for notices shall have beenduly changed as herein provided, if mailed, as aforesaid, to such other partyat such changed address. Either party may at any time change the address forsuch notices, consents, approvals, demands or statements by mailing, asaforesaid, to the other party a notice stating the change and setting forth thechanged address. If the term “Tenant”, as used in this Lease, refers to morethan one person, any notice, consent, approval, demand or statement given asaforesaid to any one of such persons shall be deemed to have been duly given toTenant. Any notice, consent, approval, demand or statement given pursuant tothe above shall be deemed received on the day of delivery (with signed receipt)or rejection, as the case may be.

 

(b)  Tenantacknowledges and agrees that all disputes arising, directly or indirectly, outof or relating to this Lease should be dealt with by application of the laws ofthe State of New York and adjudicated in the state courts of the State of NewYork sitting in New York County or the Federal courts sitting in the State ofNew York in New York County; and hereby expressly and irrevocably submitsTenant to the jurisdiction of such courts in any suit, action or proceedingarising, directly or indirectly, out of or relating to this Lease. So far as ispermitted under the applicable law, this consent to personal jurisdiction shallbe self-operative and no further instrument or action, other than service ofprocess in one of the manners permitted by law, shall be necessary in order toconfer jurisdiction upon Tenant in any such court. Provided that

 

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serviceof process is effected upon Tenant in one of the manners permitted by law,Tenant irrevocably waives, to the fullest extent permitted by law, and agreesnot to assert, by way of motion, as a defense or otherwise, (i) anyobjection which it may have, or may hereafter have to the laying of the venueof any such suit, action or proceeding brought in such a court as is mentionedin the previous paragraph, (ii) any claim that any such suit, action orproceeding brought in such a court has been brought in an inconvenient forum,or (iii) any claim that it is not personally subject to the jurisdictionof the above-named courts. Tenant hereby further irrevocably consents to theservice of process in any suit, action or proceeding by the mailing or deliveryof the appropriate documents (e.g., process or summons) by Landlord to thePremises and delivered in one of the manners set forth in 11.01(a) above.Nothing herein shall in any way be deemed to limit the ability of Landlord toserve any such papers in any other manner permitted by applicable law.

 

(c)    Notwithstandinganything contained in this Lease to the contrary, bills for additional rentshall be deemed to have been duly given if sent to Tenant only (and no otherparty need receive it in order for the same to be deemed duly given) at thePremises (or Tenant’s address as hereinbefore set forth if mailed prior toTenant’s occupancy of the Premises) by first class mail (and which need not beregistered, certified or return receipt requested) or by messenger orrecognized overnight courier without, in any case, the requirement of a signedreceipt.

 

Section 11.02                          Any notice which Landlord gives to Tenant (orany other party) prior to being notified of the assignment of this Lease (orthe transfer of any interest in any portion of the Premises) shall be bindingupon any such assignee (or party acquiring the interest) notwithstanding thefact that said assignee (or party acquiring the interest) did not receive anysuch notice. Any action that Landlord may institute against Tenant (or anyother party) prior to being notified of the assignment of this Lease (or thetransfer of any interest in any portion of the Premises) shall be binding uponany such assignee (or party acquiring the interest) notwithstanding the factthat said assignee (or party acquiring the interest) is not named in any suchaction. This Section 11.02 shall not be construed as negating therequirement of obtaining Landlord’s prior written consent under Article 25in those instances where the same is required.

 

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**ARTICLE 12**

 

**Conditions of Limitation**

 

Section 12.01                           This Lease and the term and estate hereby granted are subject to thelimitation that:

 

(a)                             in case Tenant shall make an assignment ofits property for the benefit of creditors or shall file a voluntary petitionunder any bankruptcy or insolvency law, or an involuntary petition under anybankruptcy or insolvency law shall be filed against Tenant and such involuntarypetition is not dismissed within sixty (60) days after the filing thereof,

 

(b)                            in case a petition is filed by or againstTenant under the reorganization provisions of the United States Bankruptcy Codeor under the provisions of any law of like import, unless such petition undersaid reorganization provisions be one filed against Tenant which is dismissedwithin sixty (60) days after its filing,

 

(c)                             in case a receiver, trustee or liquidatorshall be appointed for Tenant or of or for the property of Tenant, and suchreceiver, trustee or liquidator shall not have been discharged within sixty(60) days from the date of his appointment,

 

(d)                            in case Tenant shall default in the paymentof any Fixed Rent or additional rent or any other charge payable hereunder byTenant to Landlord on any date upon which the same becomes due, and suchdefault shall continue for five (5) business days’ after Landlord shallhave given to Tenant a written notice specifying such default,

 

(e)                             in case Tenant shall default in the duekeeping, observing or performance of any covenant, agreement, term, provisionor condition of Article 3 hereof on the part of Tenant to be kept,observed or performed and if such default shall continue and shall not beremedied by Tenant within seventy-two (72) hours after Landlord shall havegiven to Tenant a written notice specifying the same,

 

(f)                               in case Tenant shall default in the duekeeping, observing or performance of any of Tenant’s obligations hereunder(other than a default of the character referred to in clauses (d) or (e) ofthis Section 12.01), and if such default shall continue and shall not beremedied by Tenant within twenty (20) days after Landlord shall have given toTenant a written notice specifying

 

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thesame, or, in the case of such a default which for causes beyond Tenant’scontrol (which shall not include insufficiency of funds) cannot with duediligence be cured within said period of twenty (20) days, if Tenant (i) shallnot, promptly upon the giving of such notice, advise Landlord in writing ofTenant’s intention to take all steps necessary to remedy such default with duediligence, (ii) shall not duly institute and thereafter diligentlyprosecute to completion all steps necessary to remedy the same, (iii) shallnot remedy the same within a reasonable time after the date of the giving ofsaid notice by Landlord,

 

(g)                            in case any event shall occur or anycontingency shall arise whereby this Lease or the estate hereby granted or theunexpired balance of the term hereof would, by operation of law or otherwise,devolve upon or pass to any firm, association, corporation, person or entityother than Tenant except as expressly permitted under Article 25 hereof,or whenever Tenant shall desert or abandon the Premises or the same shallbecome vacant (whether the keys be surrendered or not and whether the rent bepaid or not), or

 

(h)                            in case Tenant shall default in the paymentof any Fixed Rent or additional rent or any other charge payable hereunder orin the performance of any other of Tenant’s obligations hereunder more thantwice, in the aggregate, in any period of twelve (12) months, notwithstandingthat such defaults shall have been cured within the applicable cure period, 

 

then,in any of said cases, Landlord may give to Tenant a notice of intention to endthe term of this Lease at the expiration of three (3) days from the dateof the giving of such notice, and, in the event such notice is given, theexpiration of said three (3) day period shall become the Expiration Date,but Tenant shall remain liable for damages as provided in this Lease orpursuant to law. The specified conditions of limitation in this Article 12are not intended to be exclusive and Landlord may invoke any additionalremedies and/or rights which it may have at law or in equity, including,without limitation, the right to bring a “chronic non-payment” action. If theterm “Tenant”, as used in this Lease, refers to more than one person, then asused in clauses (a), (b) and (c) of this Section 12.01, saidterm shall be deemed to include all such persons or any one of them; if any ofthe obligations of Tenant under this Lease is guaranteed, the term “Tenant”, asused in said clauses, shall be deemed to include also the guarantor or, ifthere be more than one guarantor, all or any one of them; and, if this Leaseshall have been assigned, the term “Tenant”, as used in said clauses, shall bedeemed to include the assignee and the assignor or either of them under anysuch assignment unless Landlord shall, in

 

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connectionwith such assignment, release the assignor from any further liability underthis Lease, in which event the term “Tenant”, as used in said clauses, shallnot include the assignor so released.

 

Section 12.02                               In the event that Tenant is in default in the payment of any Fixed Rentor additional rent and Landlord elects to commence a non-payment summaryproceeding pursuant to Article 7 of the New York Real Property Actions andProceeding Law (“RPAPL”) instead of giving Tenant a default notice pursuant to Section 12.01(d) ofthis Lease, then Landlord need only give Tenant the three-day notice requiredby Section 711 of the RPAPL in the manner required by Article 7 ofthe RPAPL (i.e., Landlord need not give Tenant the longer notice periodprovided by Section 12.01(d) of this Lease nor shall Landlord berequired to give any such three-day notice in accordance with Article 11of this Lease or to the persons or entities (other than Tenant) that may be setforth in Article 11 of this Lease or of which Tenant may have given noticepursuant to Article 11).

 

**ARTICLE 13**

 

**Re-entry by Landlord**

 

Section 13.01                               If this Lease shall terminate as provided in Article 12 hereofprovided, Landlord or Landlord’s agents may immediately or at any timethereafter re-enter into or upon the Premises, or any part thereof, in the nameof the whole, either by summary dispossess proceedings or by any suitableaction or proceeding at law, or by force or otherwise (to the extent permittedby New York law), without being liable to indictment, prosecution or damagestherefor, and may repossess the same, and may remove any persons therefrom, tothe end that Landlord may have, hold and enjoy the Premises again as and of itsfirst estate and interest therein. The words “re-enter”, “re-entry” and “re-entering”as used in this Lease are not restricted to their technical legal meanings.

 

Section 13.02                                In the event of any termination of this Lease under the provisions of Article 12hereof or in the event that Landlord shall re-enter the Premises under theprovisions of this Article 13 or in the event of the termination of thisLease (or of re-entry) by or under any summary dispossess or other proceedingor action or other measure undertaken by Landlord for the enforcement of itsaforesaid right of re-entry or any provision of law (any such termination ofthis Lease being herein called a “Default Termination”), Tenant shall thereuponpay to Landlord the Fixed Rent, additional rent and any other charge

 

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payablehereunder by Tenant to Landlord up to the time of such Default Termination orof such recovery of possession of the Premises by Landlord, as the case may be,and shall also pay to Landlord damages as provided in Article 14 hereof orpursuant to law. Also, in the event of a Default Termination Landlord shall beentitled to retain all moneys, if any, paid by Tenant to Landlord, whether asadvance rent, security or otherwise, but such moneys shall be credited byLandlord against any Fixed Rent, additional rent or any other charge due fromTenant at the time of such Default Termination or, at Landlord’s option,against any damages payable by Tenant under Article 14 hereof or pursuantto law.

 

Section 13.03                          In the event of a breach or threatened breach on the part of Tenantwith respect to any of Tenant’s obligations hereunder, Landlord shall also havethe right of injunction. The specified remedies to which Landlord may resorthereunder are cumulative and are not intended to be exclusive of any otherremedies or means of redress to which Landlord may lawfully be entitled at anytime and Landlord may invoke any remedy allowed at law or in equity as ifspecific remedies were not herein provided for.

 

**ARTICLE 14**

 

**Damages**

 

Section 14.01                          In the event of a Default Termination of this Lease, Tenant will pay toLandlord as damages, at the election of the Landlord, either:

 

(a)   asum which at the time of such Default Termination represents the then value ofthe excess, if any, of the Present Value, as herein defined, of (1) theaggregate of the Fixed Rent and the additional rent under Article 26 (ifany) which would have been payable hereunder by Tenant for the periodcommencing with the day following the date of such Default Termination andending with the scheduled Expiration Date, over (2) the aggregate fair rentalvalue of the Premises for the same period as determined by an independent realestate appraiser named by Landlord and employed at Tenant’s expense, in whichcase such liquidated damages shall be accelerated to be due and payable toLandlord in one lump sum on demand at any time commencing with the dayfollowing the date of such Default Termination and shall bear interest at theDefault Rate, as herein defined, until paid, or

 

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(b)                                 sums equal to the aggregate of the Fixed Rentand the additional rent under Article 26 (if any) which would have beendue and payable by Tenant during the remainder of the term had this Lease notterminated by such Default Termination, in which case such liquidated damagesshall be computed and payable in monthly installments, in advance, on the firstday of each calendar month following Default Termination of this Lease andcontinuing until the scheduled Expiration Date but for such Default Termination;provided, however, that if Landlord shall relet all or any part of the Premisesfor all or any part of said period, Landlord shall credit Tenant with the netrents received by Landlord from such reletting until the scheduled ExpirationDate, such net rents to be determined by first deducting from the gross rentsas and when received by Landlord from such reletting the expenses incurred orpaid by Landlord in terminating this Lease and of re-entering the Premises andof securing possession thereof, as well as the expenses of reletting, includingaltering and preparing the Premises for new tenants, brokers’ commissions andall other expenses properly chargeable against the Premises and the rentaltherefrom in connection with such reletting, it being understood that any suchreletting may be for a period equal to or shorter or longer than said period;provided, further that (i) in no event shall Tenant be entitled to receiveany excess of such net rents over the sums payable by Tenant to Landlordhereunder, (ii) in no event shall Tenant be entitled, in any suit for thecollection of damages pursuant to this clause (b), to a credit in respect ofany net rents from a reletting except to the extent that such net rents areactually received by Landlord prior to the commencement of each suit, and (iii) ifthe Premises or any part thereof should be relet in combination with otherspace, then appropriate apportionment on a square foot rentable area basisshall be made of the rent received from such reletting and of the expenses ofreletting. Landlord shall have no obligation whatsoever to mitigate its damagesupon Tenant’s default under this Lease and Landlord shall not be liable in anyway whatsoever for the failure to relet all or any portion of the Premises.

 

Forthe purposes of subdivision (a) of this Section 14.01, the amount ofadditional rent which would have been payable by Tenant under Article 26hereof, for each Tax Year and/or Operating Year (as herein defined) endingafter such Default Termination, shall be deemed an amount equal to the amountof such additional rent payable by Tenant for the Tax Year and/or OperatingYear (as the case may be) ending immediately preceding such DefaultTermination. Suit or suits for the recovery of such damages, or any installmentsthereof, may be brought by Landlord from time to time at its electioncommencing at any time following a Default Termination, and nothing

 

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containedherein shall be deemed to require Landlord to postpone suit until the scheduledExpiration Date. “Present Value” shall be computed by discounting such amountto present value at a discount rate equal to the most recent GNP Deflator asreleased monthly by the United States Department of Commerce, Bureau ofEconomic Analysis. “Default Rate” shall mean the lesser of (i) eighteenpercent (18%) per annum or (ii) the highest rate of interest permitted byNew York State law.

 

Section 14.02         Nothing herein containedshall be construed as limiting or precluding the recovery by Landlord againstTenant of any sums or damages to which, in addition to the damages particularlyprovided above, Landlord may lawfully be entitled by reason of any defaulthereunder on the part of Tenant. Tenant hereby waives any claim for moneydamages wherever in this Lease it is provided that Landlord shall notunreasonably withhold or delay any consent or approval, in the event thatLandlord shall unreasonably withhold or delay such consent or approval, norshall Tenant claim any such money damages by way of setoff, counterclaim ordefense.

 

Section 14.03         Notwithstanding anyprovision of this Lease to the contrary, in no event shall Landlord be liablefor consequential damages in connection with any claimed or actual breach ofthis Lease.

 

**ARTICLE 15**

 

**Waivers by Tenant**

 

Section 15.01         Tenant, for Tenant, andon behalf of any and all firms, corporations, associations, persons or entitiesclaiming through or under Tenant, including creditors of all kinds, does herebywaive and surrender all right and privilege which they or any of them mighthave under or by reason of any present or future law to redeem the Premises orto have a continuance of this Lease for the full term hereby demised afterTenant is dispossessed or ejected therefrom by process of law or under theterms of this Lease or after the termination of this Lease as herein providedor pursuant to law. Tenant also waives the provisions of any law relating tonotice and/or delay in levy of execution in case of an eviction or dispossess.If Landlord commences any summary proceeding, Tenant agrees that Tenant willnot interpose any counterclaim of whatever nature or description in any suchproceeding (except compulsory counterclaims).

 

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**ARTICLE 16**

 

**Waiver of Trial by Jury**

 

Section 16.01         It is mutually agreed byand between Landlord and Tenant that, except in the case of any action,proceeding or counterclaim brought by either of the parties against the otherfor personal injury or property damage, the respective parties hereto shall,and they hereby do, waive trial by jury in any action, proceeding orcounterclaim brought by either of the parties hereto against the other on anymatters whatsoever arising out of or in any way connected with this Lease, therelationship of landlord and tenant, Tenant’s use or occupancy of the Premises,and any emergency or any other statutory remedy.

 

**ARTICLE 17**

 

**Elevators, Cleaning, Heating, Air Conditioning, Services, Etc.**

 

Section 17.01         Landlord will providepassenger elevator facilities during Business Hours and have one passengerelevator subject to call during the other hours. Heat, for the warming of thePremises and the public portions of the Building, will be supplied by Landlordduring Business Hours when and as required by law. “Business Hours”, as used inthis Lease, means the hours of 8:00 A.M. to 6:00 P.M. of days otherthan Saturdays, Sundays and holidays observed by the State or FederalGovernment as legal holidays and such days as may now or hereafter becelebrated as holidays under the contract from time to time in effect betweenLocals 32B and 32J of the Buildings’ Service Employees Union AFL-CIO (andsuccessor thereto) and the Real Estate Advisory Board, Inc. (and anysuccessor thereto) or on which first class office buildings in Manhattan arenow or are hereafter closed. Landlord will clean the Premises in accordancewith the specifications attached hereto as Exhibit D provided the same arekept in order by Tenant, except any private/executive bathrooms and/or anyportions of the Premises which may be used for the preparation, dispensing orconsumption of food or beverages or for storage, shipping room, classroom orsimilar purposes or for the operation of computer, data processing or similarequipment, all of which portions Tenant shall cause to be kept clean at Tenant’sown expense.

 

Section 17.02         Landlord shall, through the airconditioning system, furnish to, and distribute in, the Premises airconditioning during Business Hours during the months of June,

 

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July,August and September when in the judgment of Landlord it may berequired for the comfortable occupancy of the Premises by Tenant, except thatas a minimum, Landlord shall comply with the specifications contained in Exhibit Cattached hereto, and during Business Hours during other months of the yearventilate the Premises; provided, however, that Landlord shallnot be liable for uncomfortable conditions in the Premises if the cause of theuncomfortable conditions is due to the fact that Tenant’s cooling/heating needsare over and above the capacity/specifications of the Building’s heating,ventilation and air conditioning (HVAC) system attached hereto as Exhibit C.Tenant agrees to lower and close the blinds when necessary because of the sun’sposition whenever said HVAC system is in operation, and Tenant agrees at alltimes to cooperate fully with Landlord and to abide by all the regulations andrequirements which Landlord may prescribe for the proper functioning andprotection of said HVAC system. In addition to any and all other rights andremedies which Landlord may invoke for any violation by Tenant of this Article 17,Landlord may, so long as such violation continues, discontinue the furnishingof such HVAC service without any diminution or abatement of rent or othercompensation to Tenant whatsoever. Landlord shall at all times have free andunrestricted access to any and all HVAC facilities in the Premises.

 

Section 17.03          Landlord will, when andto the extent reasonably requested by Tenant furnish freight elevator oradditional elevator, HVAC, or cleaning services (collectively “AdditionalServices”) upon such terms and conditions as shall be determined by Landlord inits sole discretion; and Tenant shall pay to Landlord promptly on demand asadditional rent Landlord’s charge for such Additional Services. Landlord shallnot be required to furnish, and Tenant shall not be entitled to receive, anyAdditional Services during any period wherein Tenant shall be in default in thepayment of Fixed Rent or additional rent as specified in this Lease. Withoutlimiting the generality of the immediately preceding sentence, Tenant shall payto Landlord Landlord’s charge for (a) any cleaning of the Building or anypart thereof required because of the carelessness or indifference of Tenant orthe cleaning of any stains from floors or walls caused by any food orbeverages, (b) any cleaning done at the request of Tenant of any portionsof the Premises which may be used for private/executive bathrooms and/or thepreparation, dispensing or consumption of food or beverages or for storage,shipping room, classroom or similar purposes or for the operation of computer,data processing or similar equipment, and (c) the removal of any of Tenant’srefuse and rubbish from the Building, except refuse and rubbish arising fromordinary cleaning by Landlord as specified in Section 17.01 hereof. Tenantshall pay

 

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to Landlord an amount equal to any increase in the cost to Landlord forcleaning the Premises if such increase shall be due to (i) the use of thePremises by Tenant during hours other than Business Hours or (ii) theinstallation in the Premises, at the request of or by Tenant, of any items,materials or finishes other than those which are of the standard adopted byLandlord for the Building or which may require additional or special care. Tenantunderstands that all (i) deliveries and removals of construction tools,materials, equipment etc. in connection with Tenant’s Changes or surrender ofthe Premises and/or (ii) deliveries and removals of furniture and personalproperty in connection with Tenant’s move-in to and vacating of the Premises,shall be done during non-Business Hours. Tenant agrees at all times toexclusively utilize the rubbish contractor which Landlord from time to timedesignates as the Building’s rubbish contractor.

 

Section 17.04            At any time or times all or any ofthe elevators in the Building may, at the option of Landlord, be manual and/orautomatic elevators, and Landlord shall be under no obligation to furnish anelevator operator for any automatic elevator. If Landlord shall at any time ortimes furnish any elevator operator for any automatic elevator, Landlord maydiscontinue furnishing such elevator operator without any diminution, reductionor abatement of rent.

 

Section 17.05            Landlord reserves the right, withoutliability to Tenant and without constituting any claim of constructive eviction,to stop or interrupt any HVAC, elevator, escalator, lighting, gas, steam,plumbing, power, electricity, water, condenser water, cleaning or other serviceand to stop or interrupt the use of any Building facilities at such times asmay be necessary and for as long as may reasonably be required by reason ofaccidents, strikes, or the making of repairs, alterations or improvements, orinability to secure a proper supply of fuel, gas, steam, water, electricity,labor or supplies, or by reason of any other similar or dissimilar cause beyondthe reasonable control of Landlord. No such stoppage or interruption shallentitle Tenant to any diminution or abatement of rent or other compensation norshall this Lease or any of the obligations of Tenant be affected or reduced byreason of any such stoppage or interruption; provided, however,if the entire Premises or any substantial portion thereof shall be rendereduntenantable or inaccessible for a period in excess of fifth (5th) consecutive business days by reason ofany circumstance within Landlord’s reasonable control, then Tenant shall, asits sole and exclusive remedy, be entitled to an abatement of the Fixed Rentand Article 26 additional rent payable hereunder (on a prorata square footbasis) commencing on the sixth (6th)business day and

 

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continuinguntil the day upon which the entire Premises or the substantial portion of thePremises, as the case may be, becomes tenantable/accessible. Tenant shall notbe entitled to the abatement provided in this Section 17.05 at any time(and for the length of time) that Tenant is in default beyond any applicablecure period of any of the terms or conditions of this Lease and/or if Tenant’sbreach of this Lease, negligence or willful misconduct caused the circumstanceswhich gave rise to the inaccessibility or untenantability. Landlord agrees tomake reasonable efforts to limit the duration of any such stoppage orinterruption but shall not be required to perform the same on an overtime orpremium pay basis.

 

Section 17.06          Tenant acknowledges thatthe operation of elevators and HVAC equipment will cause some vibration, noise,heat or cold which may be transmitted to other parts of the Building andPremises. Landlord shall be under no obligation to endeavor to reduce suchvibration, noise, heat or cold beyond what is customary in current goodbuilding practice for buildings of the same first-class nature as the Buildingin the midtown area of the Borough of Manhattan.

 

Section 17.07          Use of the term “BuildingStandard” or similar terminology in this Lease or in the exhibits attachedhereto, shall mean Landlord’s standard criteria, requirements or specifications(qualitatively based or quantitatively based) used in connection withmaintenance, work or improvements in the Building.

 

**ARTICLE 18**

 

**Lease Contains A11 Agreements—No Waivers**

 

Section 18.01          This Lease contains allthe covenants, agreements, terms, provisions and conditions relating to theleasing of the Premises hereunder, and Tenant acknowledges that neitherLandlord nor Landlord’s agents have made, and Tenant in executing anddelivering this Lease is not relying upon, any warranties, representations,promises or statements, except to the extent that the same may expressly be setforth in this Lease.

 

Section 18.02          The failure of Landlordto insist in any instance upon the strict performance of any provision of thisLease or to exercise any election herein contained shall not be construed as awaiver or relinquishment for the future of such provision or election, but thesame shall continue and remain in full force and effect. No waiver ormodification by either party

 

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ofany provision of this Lease or other right or benefit shall be deemed to havebeen made unless expressed in writing and signed by the party against whomenforcement is sought. No surrender of the Premises or of any part thereof orof any remainder of the term of this Lease shall be valid unless accepted byLandlord in writing. Any claim which Tenant may have against Landlord fordefault in performance of any of the obligations herein contained to be keptand performed by Landlord shall be deemed waived by Tenant unless such claim isasserted by written notice to Landlord within ninety (90) days after thecommencement of the alleged default. Any breach by Tenant of any provision ofthis Lease shall not be deemed waived by (a) the receipt and retention byLandlord of Fixed Rent or additional rent from anyone other than Tenant or (b) theacceptance of such other person as a tenant or (c) a release of Tenantfrom the further performance by Tenant of the provisions of this Lease or (d) thereceipt and retention by Landlord of Fixed Rent or additional rent with knowledgeof the breach of any provision of this Lease. No payment by Tenant or receiptor retention by Landlord of a lesser amount than any Fixed Rent or additionalrent herein stipulated shall be deemed to be other than on account of theearliest stipulated rent, nor shall any endorsement or statement of any checkor any letter accompanying any check or payment as such rent be deemed anaccord and satisfaction, and Landlord may accept such check or payment withoutprejudice to Landlord’s right to recover the balance of such rent or pursue anyother remedy in this Lease provided. No executory agreement hereafter madebetween Landlord and Tenant shall be effective to change, modify, waive,release, discharge, terminate or effect an abandonment of this Lease, in wholeor in part, unless such executory agreement is in writing, refers expressly tothis Lease and is signed by the party against whom enforcement of the change,modification, waiver, release, discharge or termination or effectuation of theabandonment is sought.

 

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**ARTICLE 19**

 

**Parties Bound**

 

Section 19.01          The covenants,agreements, terms, provisions and conditions of this Lease shall bind andbenefit the respective successors, assigns and legal representative of theparties hereto with the same effect as if mentioned in each instance where aparty hereto is named or referred to, except that no violation of theprovisions of Article 25 hereof shall operate to vest any rights in anysuccessor, assignee or legal representative of Tenant and that the provisionsof this Article 19 shall not be construed as modifying the conditions oflimitation contained in Article 12 hereof. It is understood and agreed,however, that the covenants and obligations on the part of Landlord under thisLease shall not be binding upon Landlord herein named with respect to anyperiod subsequent to the transfer of its interest in the Building, that in theevent of such a transfer said covenants and obligations shall thereafter be bindingupon each transferee of such interest of Landlord herein named, but only withrespect to the period ending with a subsequent transfer of such interest, andthat a lease of the entire interest shall be deemed a transfer within themeaning of this Article 19.

 

Section 19.02          If Tenant is or becomesa partnership (or is or becomes comprised of two (2) or more persons,individually and/or as co-partners of a partnership) or if Tenant’s interest inthis Lease shall be assigned to a partnership (or to two (2) or morepersons, individually and/or as co-partners of a partnership) (any suchpartnership and such persons are referred to in this Section as “PartnershipTenant”), the following provisions of this Section shall apply to suchPartnership Tenant: (a) the liability of each of the parties comprisingPartnership Tenant shall be joint and several, and (b) each of the partiescomprising Partnership Tenant hereby consents in advance to, and agrees to bebound by, any written instrument which may hereafter be executed, changing,modifying or discharging this Lease, in whole or in part, or surrendering allor any part of the Premises to Landlord or renewing or extending this Lease andby any notices, demands, requests or other communications which may hereafterbe given, by Partnership Tenant or by any of the parties comprising PartnershipTenant, and (c) any bills, statements, notices, demands, requests or othercommunications given or rendered to Partnership Tenant or to any of the partiescomprising Partnership Tenant shall be deemed given or rendered to PartnershipTenant and to all such parties and shall be binding upon Partnership Tenant andall such parties, and (d) if Partnership Tenant shall admit newpartners,

 

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allof such new partners shall, by their admission to Partnership Tenant, be deemedto have assumed performance of all the terms, covenants and conditions of thisLease on Tenant’s part to be observed and performed, and (e) PartnershipTenant shall give prompt notice to Landlord of the admission of any such newpartners, and upon demand of Landlord, shall cause each such new partner toexecute and deliver to Landlord an agreement in form satisfactory to Landlord,wherein each such new partner shall assume performance of all of the terms,covenants and conditions of this Lease on Tenant’s part to be observed andperformed (but neither Landlord’s failure to request any such agreement nor thefailure of any such new partner to execute or deliver any such agreement toLandlord shall vitiate the provisions of subdivision (d) of this Section).

 

Section 19.03         IfTenant is or becomes a professional corporation or if Tenant is or becomes aPartnership Tenant which contains professional corporations as partners, thenthe shareholders of such professional corporation and/or the shareholder of anyprofessional corporation which is a partner of a Partnership Tenant, as thecase may be, shall have joint and several personal liability for the fullperformance of the terms and conditions of this Lease. Tenant shall, from timeto time and within five (5) days after Landlord makes a request therefor,cause (i) each shareholder of Tenant, if Tenant is a professionalcorporation and/or (ii) the shareholder of any professional corporationwhich is a partner of a Partnership Tenant to execute such documents asLandlord requires to create and confirm the personal liability of suchshareholder(s).

 

Section 19.04         Intentionallydeleted.

 

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**ARTICLE 20**

 

**Curing Tenant’s Defaults—Additional Rent**

 

Section 20.01         If Tenant shall defaultin the keeping, observance or performance of any provision or obligation ofthis Lease, Landlord, without thereby waiving such default, may perform thesame for the account (and Tenant shall pay Landlord’s charge therefor) ofTenant, without notice in a case of emergency and in any other case if suchdefault continues after twenty (20) days from the date of the giving byLandlord to Tenant of written notice of intention so to do. Bills for anyexpense incurred or charged by Landlord in connection with any such performanceby Landlord for the account of Tenant, and bills for all costs, charges,expenses and disbursements of every kind and nature whatsoever, including, butnot limited to, reasonable counsel fees and disbursements, involved incollecting or endeavoring to collect the Fixed Rent or additional rent or othercharge or any part thereof or enforcing or endeavoring to enforce any rightsagainst Tenant, under or in connection with this Lease, or pursuant to law,including (without being limited to) any such cost, expense and disbursementinvolved in instituting and prosecuting any action or proceeding (including anysummary dispossess proceeding), as well as bills for any property, material,labor or services provided, furnished or rendered, or caused to be provided,furnished, or rendered, by Landlord to Tenant including (without being limitedto) electric lamps and other equipment, construction work done for the accountof Tenant, water, towel and other services, as well as for any charges for anyadditional elevator, heating, air conditioning or cleaning services incurredunder Article 17 hereof and any charges for other similar or dissimilarservices incurred under this Lease, may be sent by Landlord to Tenant monthly,or immediately, at Landlord’s option, and shall be due and payable within ten (10) daysafter demand as additional rent under this Lease. If any Fixed Rent, additionalrent or any other costs, charges, expenses or disbursements payable under thisLease by Tenant to Landlord are not paid within five (5) days after thesame is due, the same shall bear interest at the rate of one and one-halfpercent (11/2) per month orthe maximum rate permitted by law, whichever is less, from the due date thereofuntil paid and the amount of such interest shall be additional rent. Tenantshall pay to Landlord the greater of (i) One Hundred and 00/100 Dollars($100.00) or (ii) five percent (5%) of the delinquent amount for eachnotice of late payment or non-payment sent by Landlord to Tenant which resultsfrom Tenant’s failure to make timely payments of any items of Fixed Rent oradditional rent.

 

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Section 20.02         In the event that Tenantis in arrears in payment of Fixed Rent or additional rent or any other charge,Tenant waives Tenant’s right, if any, to designate the items against which anypayments made by Tenant are to be credited, and Tenant agrees that Landlord mayapply any payments made by Tenant to any items Landlord sees fit, irrespectiveof and notwithstanding any designation or request by Tenant as to the itemsagainst which any such payments shall be credited. Landlord reserves the right,without liability to Tenant without constituting any claim of constructiveeviction, to suspend furnishing or rendering to Tenant anyovertime/overstandard property, material, labor, utility or other service,wherever Landlord is obligated to furnish or render the same at the expense ofTenant, in the event that (but only so long as) Tenant is in arrears in payingFixed Rent or additional rent due under this Lease. In addition, Landlord may(without releasing Tenant from any liability under this Lease) suspend furnishingto Tenant freight elevator service at the time Tenant desires or is obligatedto vacate or remove any property from the Premises in the event that Tenant isin arrears in paying any Fixed Rent or additional rent due under this Leaseunless Tenant pre-pays Landlord for such freight elevator service.

 

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**ARTICLE 21**

 

**Inability to Perform**

 

Section 21.01                          This Lease and the obligations of Tenant to pay rent hereunder andperform all the other covenants, agreements, terms, provisions and conditionshereunder on the part of Tenant to be performed shall in no way be affected,impaired or excused because Landlord is unable to fulfill any of itsobligations under this Lease or is unable to supply or is delayed in supplyingany service expressly or implicitly to be supplied or is unable to make or isdelayed in making any repairs, replacements, additions, alterations ordecorations or is unable to supply or is delayed in supplying any equipment orfixtures if Landlord is prevented or delayed from so doing by reason ofaccidents, emergencies, acts of God, acts of war, acts of third parties,strikes or labor troubles or any other similar or dissimilar cause whatsoeverbeyond Landlord’s reasonable control, including, but not limited to,governmental preemption in connection with a national emergency or by reason ofany rule, order or regulation of any department or subdivision thereof of anygovernmental agency or by reason of the conditions of supply and demand whichhave been or are affected by war, hostilities or other similar or dissimilaremergency. If this Lease specifies a time period for the performance of anobligation by Landlord, that time period shall be extended by the period ofdelay caused by any of the aforementioned causes beyond Landlord’s reasonablecontrol.

 

**ARTICLE 22**

 

**Adjacent Excavation—Shoring**

 

Section 22.01                          If an excavation shall be made upon land adjacent to or under theBuilding, or shall be authorized to be made, Tenant shall afford to the personcausing or authorized to cause such excavation, license to enter upon thePremises for the purpose of doing such work as said person shall deem necessaryor desirable to preserve the Building from injury or damage and to support thesame by proper foundations without any claim for damages or indemnity againstLandlord, or diminution or abatement of rent.

 

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**ARTICLE 23**

 

**Article Headings**

 

Section 23.01                          The Article headings of this Lease are for convenience only andare not to be considered in construing the same.

 

**ARTICLE 24**

 

**Electricity and Water**

 

Section 24.01                          For the purpose of this Article, the term “Electric Rate” shall mean anamount equal to the actual cost to Landlord, including all applicable taxes,demand charges, fuel factors, transfer adjustment factors, or any other chargesof the utility, of all electricity purchased for the Building plus sevenpercent (7%) of the total amount thereof as an administrative charge toLandlord. Effective as of the Term Commencement Date, Tenant agrees to pay toLandlord or Landlord’s designated agent charges for electric current consumedby Tenant as determined by Landlord’s electric consultant in accordance with Section 24.03below. Bills therefore computed using the Electric Rate shall be rendered atsuch times as Landlord may elect based upon estimates of Landlord’s electricconsultant which may be made from time to time as Landlord deems necessary.Until such time as Landlord’s electrical consultant first makes its estimate asaforesaid, Tenant shall pay as its electricity charge hereunder (exclusive ofCommon Area Electric, as hereinafter defined) the sum of           per annum (Base Charge) which shall be payable in equal monthly installments,together with the Tenant’s payments of Fixed Rent hereunder, on the first dayof each calendar month. In the event Landlord’s consultant shall determine thatTenant’s electricity charge should exceed the Base Charge (due to an increasein either Electric Rate or Tenant’s consumption), Tenant’s electricity chargehereunder shall be adjusted, retroactively at such time as Landlord’selectric consultant’s determination is made. Any deficiency for such priorperiod shall be payable upon demand. If, at any time after the date hereof, theElectric Rate shall be increased or decreased, then effective as of the date ofsuch change, Tenant’s electricity charge hereunder shall be increased ordecreased by the same percentage as that by which the Electric Rate isincreased or decreased. In no event shall the electricity charge payable byTenant hereunder be lower than the Base Charge. Tenant shall permit Landlord’selectric consultant to make surveys in the Premises (and Tenant shall cooperatewith such consultant in providing any information required by the

 

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consultant)from time to time during normal business hours regarding the electricalequipment and fixtures and the use of electric current therein, but suchconsultant will endeavor to minimize the disruption of Tenant’s business. Inthe event the Tenant occupies a portion of a floor, with respect to theelectric current used (i) to run the core air conditioning, heating andventilating system on Tenant’s floor, including without limitation, forpurposes of early morning warm-up and (ii) for the lighting of the commonareas on Tenant’s floor (herein collectively called “Common Area Electric”),Landlord shall bill for and Tenant shall pay, effective as of the TermCommencement Date and in addition to the Base Charge, its proportionate shareof such charge for such Common Area Electric plus sales tax and theadministrative fees referred to above, based upon the proportion which therentable area of the Premises bears to the rentable area of the floor on whichthe Premises are located which is occupied by tenants.

 

Section 24.02                          Tenant covenants and agrees that at no time will the connectedelectrical load in the Premises exceed four (4) watts per usable squarefoot. Landlord shall furnish and install, at Tenant’s expense, all replacementlighting tubes, lamps, bulbs and ballasts required in the Premises.

 

Section 24.03                          Landlord, at its option, may at any time or from time to time cause asurvey to be made by an electric consultant selected by Landlord of theelectric lighting and power load in the Premises to determine the average monthlyconsumption therein, such determination to take into account, among otherthings, the special energy requirements of Tenant and whether Tenant isutilizing electric energy at times other than Business Hours. The cost of eachsuch survey shall be borne by Tenant. The determination of Landlord’sconsultant as to any adjustment shall be conclusive and binding upon theparties unless within thirty (30) days after Landlord notifies Tenant inwriting of the results of such survey or of a determination by Landlord’sconsultant, Tenant, upon written notice to Landlord given within such thirty(30) day period, promptly causes a like survey, inspection and determination tobe made by an independent electrical engineer or consultant selected by Tenantand paid solely by Tenant. Upon completion of Tenant’s survey or determination,Tenant shall notify Landlord of the results of such determination and deliver acopy thereof to Landlord. If such determination differs from that made by theconsultant selected by Landlord by more than five percent (5%), the mattershall be referred for resolution to the two experts or consultants selected,respectively, by Landlord and Tenant. If such determination differs by fivepercent (5%) or less, the determination of Landlord’s consultant shall beconclusive and

 

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bindingupon the parties. If the two engineers or consultants shall not reach unanimousagreement within thirty (30) days after the matter is referred to them forresolution, then the two shall appoint a third independent electrical engineeror consultant, and the three engineers or consultants shall determine thematter submitted to them; provided, however, that if the two engineers orconsultants are unable to agree upon the appointment of a third engineer orconsultant within fifteen (15) days after they become obligated so to do, theparties shall apply to the American Arbitration Association in New York, NewYork, for the appointment of such engineer or consultant. A decision of amajority of said engineers or consultants shall be final and binding uponLandlord and Tenant. All costs and expenses incurred in connection with thethird engineer or consultant shall be paid equally by the parties. Any suchincrease under this Section 24.03 resulting from any survey of Landlord’selectric consultant shall be effective as of the date of the determination ofsuch consultant and Tenant shall pay such charges and payments as would be duehereunder if Landlord’s electric consultant’s determination were correctwithout prejudice to Tenant’s position. In the event it is finally determinedthat there has been an overpayment by Tenant, such overpayment shall becredited against future rent payments due from Tenant under the Lease and in theevent of an underpayment, the amount of such underpayment by Tenant shall bepaid by Tenant to Landlord within ten (10) days after such determinationis made.

 

Section 24.04                          Tenant’s use of electric energy in the Premises and/or the Building’stelephone network shall not at any time exceed the capacity of any of theequipment in or otherwise serving the Premises. In order to ensure that suchcapacities are not exceeded and to avert possible adverse effect upon theBuilding’s electric service and/or the Building’s telephone network, Tenantshall not, without Landlord’s prior consent in each instance (i) connectany fixtures, appliances or equipment to the Building’s electric distributionsystem or make any alteration or addition to the electric system of thePremises existing on the Term Commencement Date other than typewriters,desk-top personal computers, lamps, desk calculators, photocopier and similarsmall office appliances or (ii) connect any telecommunication devices tothe Building’s telephone network in excess of that which an ordinary officeinstallation would connect. Should Landlord grant such consent(s), alladditional risers or other equipment required therefor shall be provided byLandlord and Landlord’s charge therefor (as well as any charge for any futuremaintenance or repair thereof) shall be paid by Tenant to Landlord within ten (10) daysafter demand. In the event that prior to Tenant’s installation of its

 

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telephone/communications riser Landlord installs atelephone/communications riser which Landlord is willing to permit Tenant toutilize, then Tenant shall pay to Landlord, within thirty (30) days afterrequest is made therefor, an amount equal to the costs which Tenant would haveotherwise incurred had Tenant installed its own telephone/communications riser.

 

Section 24.05                          Landlord reserves the rightto discontinue furnishing electric energy to Tenant in the Premises at any timeupon not less than 90 days’ notice to Tenant. If Landlord exercises such right,this Lease shall continue in full force and effect and shall be unaffectedthereby, except that from and after the effective date of such terminationLandlord shall not be obligated to furnish electric energy to Tenant and Tenantshall not be obligated to pay Landlord for any electric energy furnished to thePremises. If Landlord so discontinues furnishing electric energy to Tenant,Tenant shall arrange to obtain electric energy directly from the public utilitycompany furnishing electric energy to the Building. Such electric energy may befurnished to Tenant by means of the then existing building system feeders,risers and wiring to the extent that the same are available, suitable and safefor such purpose. All meters and additional panel boards, feeders, risers,wiring and other conductors and equipment which may be required to obtainelectric energy directly from such public utility company shall be furnishedand installed by Landlord and Tenant shall pay to Landlord Landlord’s charge therefor.If Landlord shall hereafter furnish electric energy on a submetering basispursuant to Section 24.08 Landlord likewise reserves the right todiscontinue such service and to require Tenant to obtain electric energy fromthe public utility then furnishing such energy to the Building, subject to theprovisions hereinabove set forth in this Section.

 

Section 24.06                               Where water is furnishedto the Premises by Landlord for purposes other than for (i) normal officeuse, (ii) Landlord’s air conditioning equipment during Business Hours, and(iii) drinking, lavatory or toilet facilities in the core area of thePremises, Tenant shall pay a reasonable amount for the same and for anyrequired pumping and heating thereof as well as any taxes, sewer rents or othercharges which may be imposed by the city or other governmental authority oragency thereof based on the quantity of water so used and consumed by Tenant.In no event shall Landlord be obligated to provide hot water to the Premises.Tenant shall also pay to Landlord on demand, as additional rent, Landlord’sthen existing Building charge, plus any taxes or other charges which may beimposed by any governmental authority thereon, for any condenser water as maybe supplied by Landlord, in its sole discretion, for any supplemental (aboveBuilding Standard) air conditioning units

 

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servicingthe Premises.

 

Section 24.07                               Subject to Section 17.05, Landlord shall in no way be liable orresponsible to Tenant for any loss or damage or expense which Tenant maysustain or incur by reason of any failure, inadequacy or defect in thecharacter, quantity or supply of electricity, water or telephone network accessand/or service furnished to the Premises.

 

Section 24.08                               Landlord may, if done on a reasonably uniform basis and at any timeduring the term hereof, upon not less than thirty (30) days prior notice toTenant, change the method of furnishing electricity to the Premises from thebasis then in effect to a submetering basis. If Landlord elects to furnishelectricity to the Premises on a submetering basis, then, effective as of thedate (herein called the “Submetering Conversion Date”) on which Landlord beginsto furnish electric energy to the Premises on a submetering basis:

 

(a)                                  Landlord shall furnish electric energy to thePremises for the purposes permitted under this Lease and Tenant shall purchasethe same from Landlord at the rates, charges and terms from time to time paidor payable by Landlord to purchase electric energy from the public utility,plus an eight percent (8%) of the total amount thereof administrative charge,provided that the same shall not be in excess of those allowable under law, asapplied to the electric energy consumed in the Premises, as measured by a meteror meters, maintained and installed by Landlord at Tenant’s expense (whichinstallation may include the addition of, or the modification of the existing,risers, feeders, wiring and other conductors and equipment, any and all ofwhich shall be paid for by Tenant) at such location or locations as Landlordshall determine, it being understood that the meters so installed may include ameter relating to the demand factor aspect of such consumption of electricenergy.

 

(b)                                 Tenant shall pay Landlord, as additionalrent, the amounts from time to time billed by Landlord pursuant to theprovisions hereof for the electric energy consumed in the Premises; each suchbill to be paid within ten (10) days after the same has been rendered.Where more than one meter shall measure the electric energy consumed in thePremises, the amount consumed, as measured by each meter, may be computed andbilled separately in accordance with the provisions hereof. If any tax isimposed upon Landlord’s receipts from the sale or resale of electric energy toTenant under federal, state, municipal or other law, such tax may, to theextent permitted by law, be passed on by Landlord to Tenant and be included, asadditional rent, in the bills payable by Tenant hereunder.

 

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Section 24.09                          Tenant shall pay to Landlord, as additional rent, the amounts from timeto time billed by Landlord pursuant to the provisions hereof, each such bill tobe paid within ten (10) days after the same has been rendered. If any taxis imposed upon Landlord’s receipts from the sale or resale of electric energyto Tenant under federal, state, municipal or other law, such tax may, to theextent permitted by law, be passed on by Landlord to Tenant and be included asadditional rent, in the bills payable by Tenant hereunder.

 

Section 24.10                          Notwithstanding anything contained in this Article 24 to thecontrary (a) if the law or utility servicing the Building requires Tenantto convert the method by which it receives electricity, then the cost to soconvert shall be paid by Tenant and (b) if the conversion is required byLandlord and not the law or the utility servicing the Building, then the costto so convert shall be split equally between Landlord and Tenant.

 

Section 24.11                          Tenant acknowledges that Landlord may now, or in the future, have theright to select the entity or entities which will provide electrical power tothe Building (including, the Premises). Landlord shall have the right, in itssole discretion, to select any entity or entities which it desires to have asthe electrical service provider to the Building (including, the Premises) andTenant shall not have the right to select the same or participate in theselection of the same except and unless applicable law requires that Tenanthave any such right(s) (and then only to the extent applicable lawrequires).

 

**ARTICLE 25**

 

**Assignment, Mortgaging, Subletting, Etc.**

 

Section 25.01                          Tenant shall not, whether directly, indirectly, voluntarily,involuntarily, or by operation of law or otherwise (a) assign or otherwisetransfer this Lease or the term and estate hereby granted or any interestherein or offer or advertise to do so, (b) sublet the Premises or any partthereof, or offer or advertise to do so, or allow the same to be used, occupiedor utilized by anyone other than Tenant, or (c) mortgage, pledge,encumber, grant a security interest in or otherwise hypothecate this Lease orthe Premises or any interest therein or any part thereof in any mannerwhatsoever, without in each instance obtaining the prior written consent ofLandlord.

 

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Section 25.02                          If Tenant is a corporation, partnership or other entity whosesecurities are not traded on a nationally recognized stock exchange (such asthe New York Stock Exchange, the American Stock Exchange, NASDAQ or the like),the provisions of subdivision (a) of Section 25.01 shall apply to (i) atransfer of any percentage interest of the stock or beneficial ownershipinterest, as the case may be, of Tenant (at any level and however accomplished,whether in a single transaction or in a series of related or unrelatedtransactions); (ii) a transfer by operation of law or otherwise, of Tenant’sinterest in this Lease; and/or (iii) any increase in the amount of issuedand/or outstanding shares of capital stock of any corporate Tenant (orpartnership interests of any partnership Tenant) and/or the creation of one ormore additional classes of capital stock of any corporate Tenant (or partnershipinterests of any partnership Tenant) (however accomplished, whether in a singletransaction or in a series of related or unrelated transactions), with theresult that the Tenant shall no longer be controlled by the beneficial andrecord owners of the capital stock of such corporate Tenant (or partnershipinterests in the case of a partnership) as of the date Tenant executed thisLease. Notwithstanding the above, the provisions of subdivision (a) of Section 25.01shall not apply to transactions with a corporation or other entity into or withwhich Tenant is merged or consolidated or to which all or substantially all ofTenant’s assets are transferred, provided that in any of such events thesuccessor to Tenant has a net worth computed in accordance with generallyaccepted accounting principles equal to or greater than the net worth of Tenantimmediately prior to such merger, consolidation or transfer and Tenant providesLandlord with satisfactory evidence of the same at least twenty (20) days priorto such merger, consolidation or asset transfer. Notwithstanding anythingcontained in this Article 25 to the contrary, CROWN MEDIA UNITED STATES,LLC (“Crown”) may assign this Lease and/or sublease the Premises or any portionthereof to any entity which controls Crown, Crown controls and/or is undercommon control with Crown, without having to obtain Landlord’s prior writtenconsent (and shall not be subject to Section 25.06) provided that (a) Crownis not in default of any of the terms or conditions of this Lease at the timeof the making of such assignment or sublease or the time such assignment orsublease is to take effect or commence, as the case may be, (b) Crownprovides Landlord with ten (10) business days’ prior written noticethereof along with a fully executed copy of the assignment or sublease, (c) Crownprovides Landlord, from time to time (initially as well as any timethereafter), within five (5) business days’ after Landlord requests thesame, such evidence and/or affidavits as Landlord may require in order toconfirm whether the above-described control test is satisfied, (d) Crownand the assignee or subtenant, as the case may be,

 

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executesLandlord’s then standard form of consent to assignment or sublease, as the casemay be, and Tenant reimburses Landlord for Landlord’s legal and administrativefees in connection therewith and (e) said assignee or subtenant continuesat all times thereafter to satisfy the above-described control test.

 

Section 25.03                               If this Lease be assigned, whether or not in violation of theprovisions of this Lease, Landlord may, after default by Tenant, and expirationof Tenant’s time to cure such default, collect rent from the assignee. If thePremises or any part thereof are sublet or used or occupied by anybody otherthan Tenant, whether or not in violation of this Lease, Landlord may, afterdefault by Tenant, and expiration of Tenant’s time to cure such default,collect rent from the subtenant or occupant. In either event, Landlord mayapply the net amount collected to the Fixed Rent and additional rent hereinreserved, but no such assignment, subletting, occupancy or collection shall bedeemed a waiver of any of the provisions of Section 25.01, or theacceptance of the assignee, subtenant or occupant as tenant, or as a release ofTenant from the performance by Tenant of Tenant’s obligations under this Lease.The consent by Landlord to assignment, mortgaging, subletting or use oroccupancy by others shall not in any way be considered to relieve Tenant fromobtaining the express written consent of Landlord to any other or furtherassignment, mortgaging, subletting or use or occupancy by others not expresslypermitted by this Article. References in this Lease to use or occupancy byothers, that is anyone other than Tenant, shall not be construed as limited tosubtenants and those claiming under or through subtenants but as including alsolicensees and others claiming under or through Tenant, immediately or remotely.

 

Section 25.04                               Any assignment or transfer, whether made with or without Landlord’sconsent pursuant to Section 25.01 or Section 25.02, shall be madeonly if, and shall not be effective until, the assignee shall execute,acknowledge and deliver to Landlord an agreement in form and substancereasonably satisfactory to Landlord whereby the assignee shall assume theobligations of this Lease on the part of Tenant to be performed or observed andwhereby the assignee shall agree that the provisions in Section 25.01 shall,notwithstanding such assignment or transfer, continue to be binding upon it inrespect of all future assignments and transfers. Tenant covenants that,notwithstanding any assignment or transfer (including by way of assettransfer), whether or not in violation of the provisions of this Lease, andnotwithstanding the acceptance of Fixed Rent and/or additional rent by Landlordfrom an assignee, transferee, or any other party, Tenant shall remain fullyliable for the payment of the Fixed Rent and additional rents and for the other

 

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obligationsof this Lease on the part of Tenant to be performed or observed.

 

Section 25.05                               The joint and several liability of Tenant and any immediate or remotesuccessor-in-interest of Tenant and the due performance of the obligations ofthis Lease on Tenant’s part to be performed or observed shall not bedischarged, released or impaired in any respect by any agreement or stipulationmade by Landlord extending the time of, or modifying any of the obligations of,this Lease, or by any waiver or failure of Landlord to enforce any of theobligations of this Lease.

 

Section 25.06                          Notwithstanding anything contained to the contrary in Sections 25.01 or25.02 of this Article, if Tenant shall at any time or times during the term ofthis Lease desire to assign this Lease (other than an assignment to be madepursuant to the second sentence in Section 25.02) or sublet all or part ofthe Premises, Tenant shall give notice thereof to Landlord, which notice shallbe accompanied by (a) a conformed or photostatic copy of the proposedassignment or sublease, the effective or commencement date of which shall be atleast thirty (30) days after the giving of such notice, (b) a statementsetting forth in reasonable detail the identity of the proposed assignee orsub-tenant, the nature of its business and its proposed use of the Premises,and (c) current financial information with respect to the proposedassignee or subtenant, including without limitation, its most recent financialreport. Such notice shall be deemed an offer from Tenant to Landlord wherebyLandlord (or Landlord’s designee) may, at its option, (i) terminate thisLease (if the proposed transaction is an assignment or a sublease of all the Premises),or (ii) terminate this Lease with respect to the space covered by theproposed sublease (if the proposed transaction is a sublease of part of thePremises). Said option may be exercised by Landlord by notice to Tenant at anytime within thirty (30) days after such notice has been given by Tenant toLandlord; and during such thirty (30) day period Tenant shall not assign thisLease or sublet such space to any person.

 

Section 25.07                               If Landlord exercises its option to terminate this Lease in the casewhere Tenant desires either to assign this Lease or sublet all the Premises,then, the Expiration Date shall be the date that such assignment or sublet wasto be effective or commence, as the case may be.

 

Section 25.08                               If Landlord exercises its option to terminate this Lease in part, inany case where Tenant desires to sublet part of the Premises, then, (a) theExpiration Date with

 

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respectto such part of the Premises shall be the date that the proposed sublease wasto commence; (b) from and after such Expiration Date the Fixed Rent andadditional rent shall be adjusted, based upon the proportion that the rentablearea of the Premises remaining bears to the total rentable area of thePremises; and (c) Tenant shall pay to Landlord, upon demand, Landlord’scharge for physically separating such part of the Premises from the balance ofthe Premises.

 

Section 25.09                          Intentionally deleted.

 

Section 25.10                          In the event Landlord does not exercise its options pursuant to Section 25.06to terminate this Lease in whole or in part and providing that Tenant is not indefault of any of Tenant’s obligations under this Lease beyond the expirationof any applicable notice and cure period, Landlord’s consent (which must be inwriting and in form satisfactory to Landlord) to the proposed assignment orsublease shall not be unreasonably withheld, or delayed and which shall bedelivered to Tenant within thirty (30) days after Landlord’s receipt of Tenant’srequest for such consent, provided and upon condition that all of the followingare satisfied:

 

(a)                                  Tenant shall have complied with theprovisions of Section 25.06 and Landlord shall not have exercised any ofits options under said Section 25.06 within the time permitted therefor;

 

(b)                                 In Landlord’s reasonable judgment theproposed assignee or subtenant is engaged in a business, and its proposed useof the Premises (or a portion thereof) is, appropriate for and in keeping withthe then standards of the Building and consistent with the character andquality of the existing tenancies thereof; and the proposed use (i) islimited to the use expressly permitted under Section 1.03 and (ii) willnot violate any negative covenant as to use contained in any other lease ofspace in the Building;

 

(c)                                  The financial condition and the generalreputation of the proposed assignee or subtenant is commensurate with: (i) theresponsibility involved in the proposed assignment or sublease and (ii) thecharacter of the Building and the existing tenancies thereof, and Landlord hasbeen furnished with reasonable proof of all of the foregoing;

 

(d)                                 Neither (i) the proposed assignee orsubtenant nor (ii) any person which, directly or indirectly, controls, iscontrolled by, or is under common control with, the proposed

 

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assigneeor subtenant, is then an occupant of any part of the Building;

 

(e)                                  The proposed assignee or subtenant is not aperson with whom Landlord is then negotiating to lease space in the Building;nor a person, entity or business subject to compliance with any legalrequirements beyond those requirements applicable to Tenant; nor will thenature of its occupancy cause an excessive density of employees or trafficwithin the Building, or make excessive demands on the Building’s services orfacilities, or in any other way lessen the character of the Building;

 

(f)                                    The form of the proposed assignment or subleaseshall comply with the applicable provisions of this Article and otherwisebe reasonably acceptable to Landlord; and Tenant and the proposed assignee orsubtenant shall execute a Consent to Assignment or Subletting in formreasonably acceptable to Landlord;

 

(g)                                 There shall not be more than one (1) subtenant(including Landlord or its designee) of the Premises;

 

(h)                                 The rental and other terms and conditions ofthe sublease are the same as those contained in the proposed sublease furnishedto Landlord pursuant to Section 25.06;

 

(i)                                     Tenant shall pay to Landlord on demandLandlord’s Building Standard legal and administrative fees in connection withsaid assignment or sublease, including, without limitation, the costs of makinginvestigations as to the acceptability of the proposed assignee or subtenant;

 

(j)                                     Tenant shall not have advertised orpublicized in any way the availability of the Premises or any part thereofwithout prior notice to and reasonable approval by Landlord (except Tenant maylist the same with a broker(s)), nor shall any advertisement state the name (asdistinguished from the address) of the Building or the proposed rental; and

 

(k)                                  The proposed assignee or subtenant shall notbe (x) entitled, directly or indirectly, to diplomatic or sovereignimmunity and shall be subject to the service of process in, and thejurisdiction of the courts of, the State of New York nor (y) a charitable,religious, union or other not-for-profit organization or any tax exempt entitywithin the meaning of the Internal Revenue Code or any successor or substitutestatute, or rule or regulation.

 

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Eachsubletting pursuant to this Article shall be subject to all the covenants,agreements, terms, provisions and conditions contained in this Lease.Notwithstanding any such subletting to any other subtenant and/or acceptance ofrent or additional rent by Landlord from any subtenant, Tenant shall and willremain fully liable for the payment of the Fixed Rent and additional rent dueand to become due hereunder and for the performance of all the covenants,agreements, terms, provisions and conditions contained in this Lease on thepart of Tenant to be performed and all acts and omissions of any licensee orsubtenant or anyone claiming under or through any subtenant which shall be inviolation of any of the obligations of this Lease, and any such violation shallbe deemed a violation by Tenant. Tenant further agrees that notwithstanding anysuch subletting, no other and further subletting of the Premises by Tenant orany person claiming through or under Tenant shall or will be made except uponcompliance with and subject to the provisions of this Article. If Landlordshall decline to give its consent to any proposed assignment or subtenant or ifLandlord shall exercise any of its options under Section 25.06, Tenantshall indemnify, defend and hold harmless Landlord against and from any and allloss, liability, damages, costs and expenses (including reasonable counsel feesand disbursements) resulting from any claims that may be made against Landlordby the proposed assignee or subtenant or by any brokers or other personsclaiming a commission or similar compensation in connection with the proposedassignment or sublease.

 

Section 25.11                          In the event that (a) Landlord fails to exercise any of itsoptions under Section 25.06 and consents to a proposed assignment or sublease,and (b) Tenant fails to execute and deliver the assignment or sublease towhich Landlord consented within sixty (60) days after the giving of suchconsent, then, Tenant shall again comply with all the provisions and conditionsof Section 25.06 before assigning this Lease or subletting all or part ofthe Premises.

 

Section 25.12                          With respect to each and every sublease or subletting authorized byLandlord under the provisions of this Lease, it is further agreed:

 

(a)                                  The subletting shall be for a term endingprior to the Expiration Date.

 

(b)                                 No sublease shall be valid, and no subtenantshall take possession of the Premises or any part thereof, until an executedcounterpart of such sublease has been delivered to Landlord.

 

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(c)                                  Each sublease shall be deemed to provide thatit is subject and subordinate to this Lease and to the matters to which thisLease is or shall be subordinate, and that Section 27.04 shall govern inthe event of termination, re-entry or dispossess by Landlord or successorlandlord under this Lease.

 

Section 25.13                               If Landlord shall give its consent to any assignment of this Lease orto any sublease, Tenant shall in consideration therefor pay to Landlord asadditional rent:

 

(a)                                  in the case of an assignment, an amount equalto all sums and other considerations paid to Tenant by the assignee for or byreason of such assignment (including, but not limited to, sums paid for thesale of Tenant’s Property, less, in the case of a sale thereof, the thendepreciated cost thereof determined on the basis of Tenant’s federal income taxreturns) and after deducting reasonable legal fees, the cost of reasonablealterations and reasonable brokerage fees; and

 

(b)                                 in the case of a sublease, any rents,additional rent or other consideration payable under the sublease to Tenant bythe subtenant in excess of the Fixed Rent and additional rent accruing duringthe term of the sublease in respect of the subleased space (at the rate persquare foot payable by Tenant hereunder) pursuant to the terms hereof(including, but not limited to, sums paid for the sale or rental of Tenant’sProperty, less, in the case of the sale thereof, the then depreciated costthereof determined on the basis of Tenant’s federal income tax returns) andafter deducting (on an amortized basis over the term of the sublease)reasonable legal fees, the cost of reasonable alterations and reasonablebrokerage fees. The sums payable under this Section 25.13(b) shall bepaid to Landlord as and when received by Tenant.

 

Section 25.14                               Landlord may, at the request of Tenant, maintain listings on theBuilding directory (to the extent the same exists) of the names of Tenant andany other person, firm, association or corporation in occupancy of the Premisesor any part thereof as permitted hereunder, and the names of any officers oremployees of any of the foregoing; provided, however, that the number of namesso listed shall be in no greater proportion to the capacity of the Buildingdirectory as the aggregate number of square feet of rentable area of thePremises is to the aggregate number of square feet of rentable area of theBuilding. The listing of any name other than that of Tenant, whether on thedoors of the Premises, on the Building directory, or otherwise, shall notoperate to vest in said person or entity any right or interest in the Lease orin the Premises or any portions thereof or be deemed to be the consent ofLandlord

 

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(writtenor otherwise) mentioned in this Article 25. It is expressly understoodthat any such listing is a privilege extended by Landlord revocable at will bywritten notice to Tenant.

 

**ARTICLE 26**

 

**Escalations**

 

Section 26.01                          As used in this Lease, the words and terms which follow mean andinclude the following:

 

(a)                                  “Tax Year” shall mean each period of twelve(12) months, commencing on the first day of July of each such period, inwhich occurs any part of the term of this Lease or such other period of twelve(12) months occurring during the term of this Lease as hereafter may be dulyadopted as the fiscal year for real estate tax purposes of the City of NewYork.

 

(b)                                 “Operating Year” shall mean each calendaryear of twelve consecutive months.

 

(c)                                  “Tenant’s Tax Proportionate Share” shall bedeemed to be 2.310% for the purposes of this Lease. “Tenant’s OperatingProportionate Share” shall be deemed to be 2.339% for the purposes of thisLease. Tenant acknowledges that such agreed-upon percentage shall change onlyif the area of the Premises is increased or decreased pursuant to a writingsigned by Landlord and Tenant or if Landlord physically constructs additionalrentable space in the Building;

 

(d)                                 “Operating Expenses” shall include thoseexpenses which have the meaning set forth in Exhibit B, annexed hereto andmade a part hereof.

 

(e)                                  “Base Year Operating Expenses” shall mean theOperating Expenses for the Operating Year ending December 31, 2009.

 

(f)                                    “Real Estate Taxes” shall mean the aggregateamount of real estate taxes and assessments imposed upon the Land and Buildingand payable by Landlord (including, without limitation, (i) real estatetaxes upon any “air rights” payable by the Landlord; and (ii) anyassessments levied after the date of this Lease for public benefits to Landand/or Building, or special assessments levied on the Land and/or Building,which assessments, if payable in installments shall be deemed payable in themaximum number of permissible installments) in the manner

 

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inwhich such taxes and assessments are imposed as of the date hereof, excludingany franchise or income tax of Landlord; provided, that if because of anychange in the taxation of real estate, any other tax or assessment of any kindor nature (including, without limitation, any occupancy, gross receipts orrental tax but excluding inheritance, gift and excise taxes) is imposed uponLandlord or the owner of the Land and/or Building, or upon or with respect tothe Land and/or Building or the occupancy, rents or income therefrom, insubstitution for, or in addition to, any of the foregoing Real Estate Taxes,such other taxes or assessment shall be deemed part of the Real Estate Taxes.With respect to any Tax Year, all expenses, including legal fees, experts’ andother witnesses’ fees, incurred in contesting the validity or amount of anyReal Estate Taxes (whether or not successful in lowering the amount of RealEstate Taxes), shall be considered as part of the Real Estate Taxes for such TaxYear. Landlord shall have the exclusive right, but not the obligation, tocontest or appeal any assessment of Real Estate Taxes levied upon the Land andthe Building by any governmental or quasi-governmental taxing agency. Tenantshall have no right or power to contest or appeal any assessment of Real EstateTaxes. The parties agree that Landlord’s ICIP benefits and any repayment ofICIP benefits are not to be considered in the computation of Tenant’s TaxPayment.

 

(g)                                 “Real Estate Tax Base” shall mean the sumwhich is equal to the Real Estate Taxes for the Tax Year ending on June 30,2009.

 

(h)                                 “Escalation Statement” shall mean a statementin writing signed by Landlord, setting forth the amount payable by Tenant for aspecified Tax Year or Operating Year, as the case may be, pursuant to this Article 26,setting forth in reasonable detail the computation of any additional rentpayable pursuant to this Article.

 

Section 26.02                          If the Real Estate Taxes for any Tax Year shall be greater than theReal Estate Tax Base, Tenant shall pay to Landlord as additional rent pursuantto Sections 26.05 and 26.06 for the Premises for such Tax Year an amount(herein called the “Tax Payment”) equal to Tenant’s Tax Proportionate Share ofthe amount by which the Real Estate Taxes for such Tax Year are greater thanthe Real Estate Tax Base. In the event that any Tenant’s Changes result in anincrease in Real Estate Taxes and Landlord receives a separate tax bill whichspecifically delineates the tax increase as it relates to the Tenant’s Changein question, then Tenant shall pay 100% of such tax increase.

 

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Section 26.03                               For each Operating Year commencing during the term of this Lease,Tenant shall pay pursuant to Sections 26.05 and 26.06 an amount (OperatingPayment) equal to Tenant’s Operating Proportionate Share of the amount by whichthe Operating Expenses for such Operating Year are greater than the Base YearOperating Expenses.

 

Section 26.04                               If, in any Operating Year (any part or all of which falls within theLease term), Landlord shall incur any cost for a capital improvement made orpurchased in compliance with any law or governmental regulation (as, forexample, respecting fire safety, in compliance with New York City Local Law#5-73 and/or the cost to purchase the Building’s telephone network in the eventthat the law requires the same to be purchased from the utility serving theBuilding), then Tenant shall pay to Landlord as additional rent for thePremises for the next succeeding Operating Year and continuing thereafter foreach succeeding year (and any fraction thereof) during the balance of the Leaseterm (to the extent that such improvement is being amortized during the balanceof the Lease term and Landlord agrees to amortize the cost of any suchimprovement over a period of not less than ten (10) years) an amount equalto Tenant’s Operating Proportionate Share of the reasonable annual amortizationof such cost (together with interest thereon).

 

Section 26.05                          Landlord shall furnish to Tenant, prior to the commencement of eachOperating Year or Tax Year, as the case may be, a written statement settingforth Landlord’s reasonable estimate of the Tax Payment or the OperatingPayment, as the case may be, and in the case of any Operating Year, pursuant toSection 26.03 hereof, and, in case of any Tax Year, pursuant to Section 26.02hereof. Tenant shall pay to Landlord on the first day of each month during suchOperating Year or Tax Year, as the case may be, an amount equal to one-twelfthof Landlord’s reasonable estimate of the Operating Payment for such OperatingYear or the Tax Payment for such Tax Year. If, however, Landlord shall furnishany such estimate for an Operating Year or a Tax Year subsequent to thecommencement thereof, then (a) until the first day of the month followingthe month in which such estimate is furnished to Tenant, Tenant shall pay toLandlord on the first day of each month an amount equal to the monthly sumpayable by Tenant to Landlord under this Section in respect of the lastmonth of the preceding Operating Year or Tax Year; (b) promptly after suchestimate is furnished to Tenant, Landlord shall give notice to Tenant statingwhether the installments of the Operating Payment or Tax Payment previouslymade for such Operating Year or Tax Year, as the case may be, were greater orless than the installments of the Operating Payment or Tax Payment to be madefor such Operating Year or Tax

 

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Yearin accordance with such estimate, and (i) if there shall be a deficiency,Tenant shall pay the amount thereof within ten (10) days after demandtherefor, or (ii) if there shall have been an overpayment, Landlord shallpromptly refund to Tenant the amount thereof; and (c) on the first day ofthe month following the month in which such estimate is furnished to Tenant,and monthly thereafter throughout the remainder of such Operating Year or TaxYear, as the case may be, Tenant shall pay to Landlord an amount equal to one-twelfth(1/12th) of the Operating Payment or Tax Payment, as the case may be, shown onsuch estimate.

 

Section 26.06                               Landlord shall furnish to Tenant an Escalation Statement for eachOperating Year and for each Tax Year. If the Escalation Statement shall showthat the sums paid by Tenant under Section 26.05 exceeded the Tax Paymentor Operating Payment to be paid by Tenant for such Tax Year or Operating Year,as the case may be, Landlord shall promptly refund to Tenant the amount of suchexcess; and if the Escalation Statement for such Tax Year or Operating Year, asthe case may be, shall show that the sums so paid by Tenant were less than theTax Payment or Operating Payment, as the case may be, to be paid by Tenant forsuch Tax Year or Operating Year, Tenant shall pay the amount of such deficiencywithin ten (10) days after demand therefor.

 

Section 26.07                          In case the Real Estate Taxes for any Tax Year or part thereof shall bereduced during the term hereof after Tenant shall have paid Tenant’s Tax ProportionateShare of any increase thereof in respect of such Tax Year pursuant to Section 26.06hereof, Landlord shall credit or refund to Tenant Tenant’s Tax ProportionateShare of the refund of such taxes received by Landlord. If, after an EscalationStatement has been sent to Tenant during the term hereof, the assessedvaluation which had been utilized in determining the Real Estate Base Tax isreduced (as a result of settlement, final determination of legal proceedings orotherwise), then, and in such event (a) the Real Estate Tax Base shall beretroactively adjusted to reflect such reduction and (b) all retroactiveadditional rent resulting from such retroactive adjustment shall be forthwithpayable when billed by Landlord. Landlord shall send to Tenant a statementsetting forth the basis for such retroactive adjustment and additional rentpayments.

 

Section 26.08                          Intentionally deleted.

 

Section 26.09                          Payments shall be made pursuant to this Article 26 notwithstandingthe fact that an Escalation Statement is furnished to Tenant after theExpiration Date and any delay or failure of Landlord in billing any additionalrent provided for

 

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inthis Article 26 shall not constitute a waiver of or in any way impair thecontinuing obligation of Tenant to pay such additional rent hereunder.

 

Section 26.10                          Provided that Tenant is not in default hereunder, if Tenant’s OperatingPayment increases by more than five percent (5%) from one Operating Year to thenext Operating Year, then, within sixty (60) days after the submission of theEscalation Statement indicating such increase, Landlord shall allow Tenant orTenant’s agents, upon ten (10) business days advance notice to Landlord,to examine, during Business Hours at Landlord’s office where such records arekept, such books purchase orders, invoices, payrolls and other records inLandlord’s possession as may be reasonably necessary in order to permit Tenantto verify the information set forth in such Escalation Statement with respectto Operating Expenses (an “Audit”); provided, however, that if any tenant inthe Building has conducted an Audit covering the time period Tenant intends toaudit and Landlord furnishes a copy of the results of such Audit to Tenant,then Tenant shall have no rights to conduct an Audit for such time period. Anysuch Audit may only be conducted by an independent, nationally-recognizedaccounting firm approved by Landlord that is not being compensated by Tenant ona contingency fee basis. Tenant and its agents shall keep all information whichthey are shown in connection with any Audit confidential and shall not revealthe same to any third party except as may be required by law. Landlord shallhave the right to precondition any verification right provided hereunder uponthe execution by Tenant and the person conducting such Audit of aconfidentiality agreement in such form as required by Landlord. Tenant shalldeliver to Landlord a copy of the results of such Audit within fifteen (15)days after completion or receipt by Tenant of such results. In the event thatTenant fails to initiate such Audit within said sixty (60) day period, Tenantshall have no further right to challenge or contest the accuracy of theapplicable Escalation Statement. No assignee of the Tenant named herein shallhave any right to conduct an Audit for any period during which such assigneewas not in possession of the Premises and no subtenant shall have any right toconduct an Audit. Within ten (10) days after demand therefor, Tenant shallreimburse Landlord for the reasonable costs of Landlord’s personnel andrepresentatives who are involved in such Audit.

 

Section 26.11                          In no event shall (x) the Fixed Rent under this Lease (exclusiveof the additional rent under this Article) be reduced by virtue of this Article or(y) Tenant be entitled to a credit against the payment of any additionalrent that may be due under this Lease (including this Article 26) byreason of the fact that (i) Operating Expenses in any Operating

 

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Yearare less than Base Year Operating Expenses and/or (ii) Real Estate Taxesfor any Tax Year are less than the Real Estate Tax Base.

 

**ARTICLE 27**

 

**Subordination**

 

Section 27.01                          This Lease is subject and subordinate in all respects to all groundleases and/or underlying leases now or hereafter covering the real property orany portion thereof of which the Premises form a part and to all mortgages andtrust indentures which may now or hereafter be placed on or affect such leasesand/or the real property of which the Premises form a part, or any part orparts of such real property, and/or Landlord’s interest therein, and to eachadvance made and/or hereafter to be made under any such mortgages, orindentures and to all renewals, modifications, consolidations, increases,recastings, replacements, extensions and substitutions of and for such groundleases and/or underlying leases and/or mortgages or indentures (each lease ormortgage to which this Lease shall be subject and subordinate pursuant to theprovisions hereof being respectively herein called a “superior lease” or a “superiormortgage”). This Section 27.01 shall be self-operative and no furtherinstrument of subordination shall be required. In confirmation of such subordination,Tenant shall execute, at its sole cost and expense, and deliver promptly anycertificate that Landlord and/or any lessor under any superior lease and/or anyholder of any superior mortgage and/or their respective successors in interestmay request.

 

Section 27.02                               In the event of any act or omission of Landlord that would give Tenantthe right, immediately or after lapse of a period of time, to cancel orterminate this Lease, or to claim a partial or total eviction, Tenant shall notbe entitled to exercise such right:

 

(a)                                  unless and until Tenant has given promptwritten notice of such act or omission to the lessor under each superior leaseand the holder of each superior mortgage, whose name and address shallpreviously have been furnished to Tenant in writing; and

 

(b)                                 unless such act or omission shall be onewhich is not capable of being remedied by Landlord or such lessor or suchholder within a reasonable period of time, until a reasonable period forremedying such act or omission shall have elapsed following the giving of suchnotice and following the time when

 

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thelessor under such superior lease or the holder of such superior mortgage shallhave become entitled under such lease or such mortgage, as the case may be, toremedy the same (which reasonable period shall in no event be less than theperiod to which Landlord would be entitled under this Lease or otherwise, aftersimilar notice, to effect such remedy), provided such lessor or such holdershall with due diligence give Tenant written notice of intention to, andcommence and continue to remedy such act or omission.

 

Section 27.03                               Tenant covenants that neither the termination of any superior lease orany superior mortgage, nor the institution of any suit, action or otherproceeding by the lessor under any such superior lease or the holder of anysuch superior mortgage to recover possession of the Premises leased ormortgaged under any such superior lease or any such superior mortgage or torealize on the mortgagor’s interest under any such superior mortgage in anysuch superior lease (provided that Tenant is not otherwise disturbed by thelessor under any such superior lease or the holder of any such superiormortgage) shall, by operation of law or otherwise, result in the cancellationor termination of this Lease or the obligations of Tenant hereunder. If thelessor under any superior lease or the holder of any superior mortgage, or thepurchaser upon any foreclosure sale relating to such superior mortgage, or anydesignee of such lessor or such holder shall succeed to the rights of Landlordunder this Lease, whether through possession, or any action or proceedingrelating to the termination of such superior lease, or foreclosure action or deliveryof a new lease or deed, then, at the request of such party so succeeding toLandlord’s rights (such party being sometimes herein called a “successor landlord”) and upon such successor landlord’s written agreement toaccept Tenant’s attornment, Tenant shall attorn to and recognize such successorlandlord as Tenant’s landlord under this Lease, and shall promptly execute anddeliver, at Tenant’s sole expense, any instrument that such successor landlordmay reasonably request to evidence such attornment and none of theabove-described successions shall, by operation of law or otherwise, result inthe cancellation or termination of this Lease (unless specific action is takenby such successor landlord to terminate this Lease) or the obligations of Tenant.In the event successor landlord requests Tenant to execute an attornment,Tenant shall acquire no rights with respect to said successor landlord untilthe attornment has been executed. Upon such attornment, this Lease shallcontinue in full force and effect as, or as if it were, a direct lease betweenthe successor landlord and Tenant upon all of the terms,conditions and covenants set forth in this Lease, except that the successorlandlord shall not:

 

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(a)                                  be liable for any previous act or omission ofLandlord under this Lease;

 

(b)                                 be subject to any offset, not expresslyprovided for in this Lease, which shall have theretofore accrued to Tenantagainst Landlord; or

 

(c)                                  be bound by any previous modification of thisLease, not expressly provided for in this Lease, or by any previous prepaymentof more than one month’s Fixed Rent or additional rent, unless suchmodification or prepayment shall have been expressly approved in writing by thelessor under the superior lease or the holder of the superior mortgage throughor by reason of which the successor landlord shall have succeeded to the rightsof Landlord under this Lease.

 

Section 27.04                          In the event of termination, cancellation,re-entry or dispossess by Landlord or a successor landlord under this LeaseTenant shall, at Landlord’s or the successor landlord’s request, execute anassignment by Tenant to Landlord or the successor landlord of Tenant’s interestas sublessor under any subleases to this Lease.

 

AtLandlord’s or successor landlord’s option, sublessee shall attorn to Landlordor the successor landlord and upon such attornment, the sublease shall continuein full force and effect as, or as if it were, a direct lease between Landlordor the successor landlord and sublessee upon all the terms, conditions andcovenants set forth in, at Landlord’s or successor landlord’s option, the Leaseor the sublease, except that Landlord or the successor landlord shall not:

 

(a)                        be liable for any previous act or omission ofsublessor under the sublease;

 

(b)                       be subject to any offset, which shall havetheretofore accrued to sublessee against sublessor; or

 

(c)                        be bound by any previous modification of thesublease, not expressly provided for in the sublease, or by any previousprepayment of more than one month’s Fixed Rent or additional rent, unless suchmodification or prepayment shall have been expressly approved in writing by theLandlord under the Lease, the lessor under the superior lease or the holder ofthe superior mortgage through or by reason of which the successor landlordshall have succeeded to the rights of sublessor under the sublease, as the casemay be.

 

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Inthe event that Landlord or a successor landlord, as the case may be, does notrequest Tenant to assign its interest in the sublease or have sublessee attornto Landlord or the successor landlord, as the case may be, then Landlord orsuccessor landlord, as the case may be, shall have the right to terminate thesublease immediately at any time after termination or cancellation of thisLease or re-entry or dispossess by Landlord or a successor landlord under thisLease.

 

Allsubleases made in accordance with this Lease shall be subject to the aboveprovision.

 

Section 27.05         In the event the holderof any mortgage or the lessor of any lease (present or future) relating to thePremises and/or this Lease requests that (a) this Lease and Tenant’srights hereunder be made superior, rather than subordinate, to such mortgage orlease and/or (b) Tenant enter into a subordination non-disturbance andattornment agreement, then Tenant, within ten (10) days after writtenrequest, will execute and deliver without charge such agreement(s) in suchform(s) acceptable to the holder of such mortgage or lessor of such lease.In any instance where the consent of any holder of any superior lease orsuperior mortgage is required to be given in connection with any matterrelating to this Lease, Landlord shall not be required to give its consent tosuch matter unless and until such required consent is given and Landlord shallnot be found to have unreasonably withheld its consent if such required consentis withheld by any superior lease or superior mortgage.

 

Section 27.06          If Tenant fails toexecute and deliver any documents as and when required by this Article 27,then, notwithstanding any other provision of this Lease, without therequirement of notice from Landlord such failure will constitute a defaultunder this Lease beyond any applicable grace period, entitling Landlord to thesame rights and remedies as if such default were with respect to nonpayment ofFixed Rent.

 

**ARTICLE 28**

 

**Miscellaneous**

 

Section 28.01           Notwithstanding anythingcontained in this Lease to the contrary, Tenant covenants and agrees thatTenant will not use the Premises or any part thereof, or permit the Premises orany part thereof to be used,

 

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(i)            for a banking,trust company, or safe deposit business,

 

(ii)           as a savings bank,or as a savings and loan association, or as a loan company,

 

(iii)          for the sale oftravelers checks and/or foreign exchange, or as a tourist or travel agency,

 

(iv)          as a stock brokerageoffice or for stock brokerage purposes or for the underwriting of securities,

 

(v)           as a newsstand,employment agency, office for a labor union, classroom or school,

 

(vi)          as a restaurantand/or bar and/or for the sale of confectionery and/or soda and/or beveragesand/or sandwiches and/or ice cream and/or baked goods or for the preparation,dispensing or consumption of food or beverages in any manner whatsoever,

 

(vii)         as offices for anygovernment or any department, commission, subdivision or agency thereof,

 

(viii)        as offices forpolitical or lobbying activities (i.e., persons or organizations principallyengaged in efforts to influence legislation or governmental action), or

 

(ix)           for any other useor purpose that involves direct patronage of the general public.

 

Section 28.02         Tenanthereby represents, covenants and agrees that Tenant’s business is notphotographic reproductions and/or documentary reproductions and/or offsetprinting. Notwithstanding anything contained in this Lease to the contrary, Tenantcovenants and agrees that Tenant will not use the Premises or any part thereof,or permit the Premises or any part thereof to be used, for the business ofphotographic reproductions and/or documentary reproductions and/or offsetprinting. Nothing contained in this Section 28.02 shall preclude Tenantfrom using any part of the Premises for photographic reproductions and/ordocumentary reproductions and/or offset printing in connection with, eitherdirectly or indirectly, its own business and/or activities.

 

Section 28.03         If,in connection with obtaining financing for the Building, a banking, insuranceor other recognized institutional lender shall request reasonable

 

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modificationsin this Lease as a condition to such financing, Tenant will not unreasonablywithhold, delay or defer its consent thereto, provided that such modificationsdo not increase the obligations of Tenant hereunder or materially adverselyaffect the leasehold interest hereby created.

 

Section 28.04         If, at any time duringthe last month of the term of this Lease, Tenant shall have removed all orsubstantially all of Tenant’s property from the Premises, Landlord may, andTenant hereby irrevocably grants to Landlord a license to, immediately enterand alter, renovate and redecorate the Premises, without limitation, diminutionor abatement of rent, or incurring liability to Tenant for any compensation,and such acts shall have no effect upon this Lease.

 

Section 28.05         Tenant shall not place aload upon any floor of the Premises exceeding the floor load per square footwhich such floor was designed to carry and such load shall be placed by Tenant,at Tenant’s expense, so as to properly distribute the weight. Business machinesand mechanical equipment shall be placed and maintained by Tenant, at Tenant’sexpense, in settings sufficient in Landlord’s judgment to absorb and preventvibration, noise and annoyance. If the Premises be or become infested withvermin as a result of the use or any misuse or neglect of the Premises byTenant, its agents, employees, visitors or licensees, Tenant shall at Tenant’sexpense cause the same to be exterminated from time to time to the satisfactionof Landlord and shall employ such exterminators and such exterminating companyor companies as shall be approved by Landlord.

 

Section 28.06         If Landlord shall consentto the omission or removal of any part of, or the insertion of any door orother opening in, any wall separating the Premises from adjoining space leasedto another tenant, then (i) Tenant shall be responsible for all risk ofdamage to, or loss or theft of, property arising as an incident to suchomission or removal or the use of such door or other opening, or because of theexistence thereof, and shall indemnify and save Landlord harmless from andagainst any claim, demand or action for, or on account of, any such loss, theftor damage, and (ii) in the event of the termination of this Lease or thelease of said other tenant, Landlord may enter the Premises and Landlord, atTenant’s expense, may close up any door or other opening by erecting a wall tomatch the wall separating the Premises from said adjoining space, and Tenantshall not be entitled to any diminution or abatement of rent or othercompensation by reason thereof; provided, however, that nothing hereincontained shall be deemed to vest Tenant with any right or interest in, or with

 

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respectto, said adjoining space, or the use thereof, and Tenant hereby expresslywaives any right to be made a party to, or to be served with process or othernotice under or in connection with, any proceeding or action which mayhereafter be instituted by Landlord for the recovery of the possession of saidadjoining space.

 

Section 28.07          Without incurring anyliability to Tenant, Landlord may permit access to the Premises and open thesame, whether or not Tenant shall be present, upon demand of any receiver,trustee, assignee for the benefit of creditors, sheriff, marshal, court officeror other person entitled to, or reasonably purporting to be entitled to, suchaccess for the purpose of taking possession of, or removing, Tenant’s propertyor for any other lawful purpose (but this provision and any action by Landlord hereundershall not be deemed a recognition by Landlord that the person or officialmaking such demand has any right or interest in or to this Lease, or in or tothe Premises), or upon demand of any representative of the fire, police,building, sanitation or other department of the city, state or federalgovernments.

 

Section 28.08         Tenant shall not beentitled to exercise any right of termination, cancellation, or any otheroption granted to it by this Lease at any time when Tenant is in default in theperformance or observance of any of Tenant’s obligations hereunder.

 

Section 28.09          Tenant shall not placeor permit to be placed any vending machines in the Premises, except with theprior written consent of Landlord in each instance, not to be unreasonably withheldor delayed.

 

Section 28.10         Tenant shall not occupyany space in the Building (by assignment, sublease or otherwise) other than thePremises hereby demised, except with the prior written consent of Landlord ineach instance.

 

Section 28.11          Tenant will not clean,nor require, permit, suffer or allow any window in the Premises to be cleaned,in violation of Section 202 of the Labor Law or the rules of theBoard of Standards and Appeals, or of any other board or body having orasserting jurisdiction.

 

Section 28.12          Tenant represents thatit has not dealt with any person or broker in connection with this Lease otherthan CB RICHARD ELLIS, INC. (the “Broker”) and agrees to defend, indemnify andhold harmless Landlord, its agents and employees, from any loss, liability,costs, damages and expenses (including

 

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withoutlimitation attorney’s fees and disbursements) suffered by Landlord through anybreach of this representation, or in connection with the claim of any otherperson or broker alleging to have dealt with Tenant with respect to this Lease.

 

Section 28.13         The term “Landlord” asused in this Lease means only the owner, or the mortgagee in possession, forthe time being, of the Land and Building (or the owner of a lease of theBuilding or the Land and Building), so that in the event of any sale or salesof the Land and Building or of said lease, or in the event of a lease of theBuilding, or of the Land and Building, the Landlord shall be and hereby is entirelyfreed and relieved of all covenants and obligations of Landlord hereunder, andit shall be deemed and construed without further agreement between the partiesor their successors in interest, or between the parties and the purchaser, atany such sale, or the said lessee of the Building, or of the Land and Building,that the purchaser or the lessee of the Building has assumed and agreed tocarry out any and all covenants and obligations of Landlord hereunder. Nogeneral or limited partner or shareholder of Landlord (including any assigneeor successor of Landlord) or other holder of any equity interest in Landlordshall be personally liable for the performance of Landlord’s obligations underthis Lease. The liability of Landlord (including any assignee or successor ofLandlord) for Landlord’s obligations under this Lease shall be limited toLandlord’s interest in the Land and Building and Tenant shall not look to anyof Landlord’s other assets in seeking either to enforce Landlord’s obligationsunder this Lease or to satisfy a judgment for Landlord’s failure to performsuch obligations. Landlord reserves the right, at any time, to convert theBuilding and or Land to condominium ownership, and upon such conversion, (i) thisLease shall be subject and subordinate to the applicable condominium documentsand (ii) the owner of the unit or units of which the Premises forms a partshall be deemed to be the Landlord hereunder.

 

Section 28.14          The submission byLandlord of the Lease in draft form shall be deemed submitted solely for Tenant’sconsideration and not for acceptance and execution. Such submission shall haveno binding force or effect and shall confer no rights nor impose anyobligations, including brokerage obligations, on either party unless and untilboth Landlord and Tenant shall have executed the Lease and duplicate originalsthereof shall have been delivered to the respective parties.

 

Section 28.15          Intentionally deleted.

 

Section 28.16          Tenant covenants to payany occupancy or rent tax now in effect or hereafter enacted if the sameapplies

 

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toTenant’s leasing of the Premises. Alternatively, Tenant shall pay to Landlordupon demand as additional rent any occupancy tax or rent tax now in effect orhereafter enacted, if payable by Landlord in the first instance or hereafterrequired to be paid by Landlord.

 

Section 28.17         Tenant hereby representsand warrants to Landlord that it is duly formed and in good standing, and hasfull corporate or partnership power and authority, as the case may be, to enterinto this Lease and has taken all corporate or partnership action, as the casemay be, necessary to carry out the transaction contemplated herein, so thatwhen executed, this Lease constitutes a valid and binding obligationenforceable in accordance with its terms. Tenant shall provide Landlord withcorporate resolutions or other proof in a form acceptable to Landlord,authorizing the execution of the Lease at the time of such execution. Tenanthereby represents to Landlord that it is not entitled, directly or indirectly,to diplomatic or sovereign immunity.

 

Section 28.18         Tenant acknowledges thatis has no rights to any development rights, “air rights” or comparable rightsappurtenant to the Land and/or Building, and consents, without furtherconsideration, to any utilization of such rights by Landlord and agrees topromptly execute and deliver any instruments which may be requested byLandlord, including instruments merging zoning lots, evidencing such acknowledgmentand consent, provided same does not prevent occupancy of the Premises by Tenantin the manner provided herein. The provisions of this Section 28.18 shallbe deemed to be and shall be construed as an express waiver by Tenant of anyinterest Tenant may have as a “party in interest” (as such quoted term isdefined in Section 12-10 Zoning Lot of the Zoning Resolution of the Cityof New York) in the Land and/or Building.

 

Section 28.19         Tenant hereby representsand warrants to Landlord that:

 

(a)          it is not acting, directly orindirectly, for or on behalf of any person, group, entity, or nation named byany Executive Order or the United State Treasury Department as a terrorist, “SpeciallyDesignated National and Blocked Person,” or other banned or blocked person,entity, nation, or transaction pursuant to any law, order, rule, or regulationthat is enforced or administered by the Office of Foreign Assets Control;

 

(b)         it is not engaged in this transaction,directly or indirectly on behalf of, or instigating or facilitating this 

 

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transaction,directly or indirectly on behalf of, any such person, group, entity, or nation;and

 

(c)          neither Tenant nor any person, group,entity or nation who owns any direct or indirect beneficial interest in Tenantor any of them is in violation of any anti-money laundering or anti-terrorismstatue, including, without limitation, the Uniting and Strengthening America byProviding Appropriate Tools Required to Intercept and Obstruct Terrorism Act of2001, U.S. Public Law 107-56 (commonly known as the USA PATRIOT Act) and therelated regulations issued thereunder, including, without limitation, temporaryregulations, all as amended from time to time.

 

Tenanthereby agrees to defend, indemnify, and hold harmless Landlord and itsrespective partners, lenders, shareholders, directors, officers, agents andemployees from and against any and all claims, damages, losses, liabilities andexpenses (including attorney’s fees and costs) arising from or related to anybreach of the foregoing representations.

 

**ARTICLE 29**

 

**Layout and Finish**

 

Section 29.01          Tenant shall, at Tenant’ssole expense, and as part of Tenant’s Changes, perform all the work (Tenant’sWork) in the Premises necessary for Tenant’s occupancy thereof, including, butnot limited to all work as may be necessary to comply with all applicable laws(including without limitation, the Americans with Disabilities Act) orregulations and otherwise, subject to the provisions of this Lease.

 

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**ARTICLE 30**

 

**Insurance**

 

Section 30.01         Tenant covenants, at itsexpense, to provide prior to entry upon the Premises and to keep in force andeffect during the term of this Lease or Tenant’s occupancy of the Premises(whichever is longer): (1) commercial general liability insurance withrespect to the Premises and its Appurtenances on an occurrence basis againstclaims for bodily injury and property damage with minimum limits of liabilityin amount of Five Million and 00/100 Dollars ($5,000,000.00) combined singlelimit for bodily injury and property damage (including coverage for alloperations of Tenant, products/completed operations, independent contractors,broad form property damage, personal injury liability and contractual liabilitycoverage); (2) if the nature of Tenant’s business is such as to place allor any of its employees under workers’ compensation or similar statutes,workers’ compensation or similar insurance affording statutory coverage andcontaining statutory limits; and (3) all-risk property damage insurance(replacement cost coverage), including theft or attempted theft of, Tenant’sProperty and any appurtenances within the Premises. Tenant agrees to deliver toLandlord, at least thirty (30) days prior to the time such insurance is firstrequired to be carried by Tenant, and thereafter at least thirty (30) daysprior to the expiration of any such policy, either an original policy or acertificate of insurance procured by Tenant in compliance with its obligationshereunder, together with evidence of payment therefor. Tenant’s Certificate ofInsurance shall confirm that any parties included for coverage as additionalinsureds shall be afforded thirty (30) days advance notice from the insurerprior to cancellation of the policy. Workers’ compensation insurance providedfor in this Section may be procured by Tenant’s contractors. Tenant willalso furnish Landlord with evidence that Tenant’s contractors performing anyTenant’s Changes or other work in the Building are covered by insurance inamounts and of the types which are appropriate, in Landlord’s judgment, to thesize and scope of Tenant’s Changes.

 

Section 30.02          All the aforesaidinsurance shall be issued in the name of Tenant and Tenant’s commercial generalliability policy shall cover Landlord (and any designee(s) of Landlord) asadditional insureds, except for claims arising solely from the activities ofthe additional insureds. All the aforesaid insurance shall be written by one (1) ormore responsible insurance companies reasonably approved by Landlord andlicensed to do business in New York State; all such insurance

 

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may be carried under a blanket policy covering the Premises and any otherof Tenant’s locations and shall contain endorsements that: (1) Tenantshall be solely responsible for payment of premiums and that Landlord (or itsdesignee(s)) shall not be required to pay any premiums for such insurance; and (2) Tenant’scommercial general liability insurance shall be primary with any coverageprovided by Landlord as excess and non-contributory. The minimum limits of thecommercial general liability policy of insurance shall in no way limit ordiminish Tenant’s liability under Section 5.01(k) hereof.

 

Section 30.03         Theminimum limits of the commercial general liability policy of insurance shall besubject to increase at any time, and from time to time, after the commencementof the fifth (5th) year of the term hereof if Landlord in the exercise of itsreasonable judgment shall deem the same necessary for adequate protection.Within thirty (30) days after demand therefor by Landlord, Tenant shall furnishLandlord with evidence that such demand has been complied with. In case Tenantdisputes the reasonableness of Landlord’s demand, the parties agree to submitthe question of the reasonableness of such demand for decision to the Chairmanof the Board of Directors of the Management Division of The Real Estate Boardof New York, Inc., or to such impartial person or persons as he maydesignate whose determination shall be final and conclusive upon the partieshereto. The right to dispute the reasonableness of any such demand by Landlordshall be deemed waived unless the same shall be asserted by Tenant by serviceof a notice in writing upon Landlord within ten (10) days after the givingof Landlord’s demand therefor.

 

**ARTICLE 31**

 

**Security Deposit**

 

Section 31.01          Intentionallydeleted.

 

**ARTICLE 32**

 

**GUARANTY**

 

Section 32.01          Landlordand Tenant acknowledge and agree that HALLMARK CARDS, INCORPORATED (Guarantor)is guarantying the obligations of Tenant under this Lease pursuant to aGuaranty in the form attached hereto as Exhibit E and executed anddelivered by Guarantor to Landlord concurrently herewith.

 

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**ARTICLE 33**

 

**Quiet Enjoyment**

 

Section 33.01         Landlord covenants thatif and so long as, Tenant keeps and performs each and every covenant,agreement, term, provision and condition herein contained on the part and onbehalf of Tenant to be kept and performed, Tenant shall quietly enjoy thePremises without hindrance or molestation by Landlord or by any other personlawfully claiming the same, subject to the covenants, agreements, terms,provisions and conditions of this Lease and to the ground leases and/orunderlying leases and/or mortgages to which this Lease is subject andsubordinate, as hereinbefore set forth.

 

INWITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of theday and year first above written.

 

 
|   | PARAMOUNT  GROUP, INC., as Agent for  1325 AVENUE OF THE AMERICAS, L. P.

(Landlord) |
|--------|--------------------------------------------------------------------------------------|
|   |                                                                                 |
|   | By:                                                                                  | /s/  Roger S. Newman |
|   |                                                                                 | Name:    Roger S. Newman |
|   |                                                                                 | Title:    Senior Vice President |

 

 
|   | CROWN  MEDIA UNITED STATES, LLC |
|--------|---------------------------------|
|   |                            |
|   |                            |
|   | By:                             | /s/  Brian Stewart |
|   |                            | Name:  Brian Stewart |
|   |                            | Title:    EVP/CFO |
|        |                                 |  |  |

 

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TENANT

 
| State of California   | ) |   |
|-----------------------|---|--------|
|                  | ) | ss.:   |
| County of Los Angeles | ) |   |

 

On the 11th day of September in the year 2008 beforeme, the undersigned, a Notary public in and for said State, personally appearedBrian Stewart personally known to me or proved to me on the basis ofsatisfactory evidence to be the individual whose name is subscribed to thewithin instrument and acknowledged to me that he executed the same in hiscapacity, and that by his signature on the instrument, the individual, or theperson upon behalf of which the individual acted, executed the instrument.

 

 
|   | /s/ J. Hanchey |
|--------|----------------|
|   | Notary Public  |
|   |           |
|   |           |
| SEAL   |           |
|   |           |
|        |           |

 

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