exv10w7





Exhibit 10.7




Portions of this exhibit have been omitted pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. The omissions have been indicated by asterisks
(“*****”), and the omitted text has been filed separately with the Securities and Exchange
Commission.




      




RCPI TRUST,




Landlord     




and




RADIO CITY PRODUCTION LLC,




Tenant     




 






LEASE




 






Premises: Radio City Music Hall and

Portions of 1270 Avenue of the Americas and

50 Rockefeller Plaza




 






New York, New York




Dated: December 4, 1997




      




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE 1 BASIC LEASE PROVISIONS
	 	 	1	 
	ARTICLE 2 PREMISES; TERM; RENT
	 	 	7	 
	ARTICLE 3 USE AND OCCUPANCY
	 	 	9	 
	ARTICLE 4 CONDITION OF THE PREMISES
	 	 	13	 
	ARTICLE 5 ALTERATIONS
	 	 	14	 
	ARTICLE 6 FLOOR LOAD
	 	 	23	 
	ARTICLE 7 REPAIRS
	 	 	23	 
	ARTICLE 8 INCREASES IN REAL ESTATE TAXES
	 	 	29	 
	ARTICLE 9 REQUIREMENTS OF LAW
	 	 	34	 
	ARTICLE 10 QUIET ENJOYMENT
	 	 	39	 
	ARTICLE 11 SUBORDINATION
	 	 	39	 
	ARTICLE 12 SERVICES
	 	 	44	 
	ARTICLE 13 INSURANCE; PROPERTY LOSS OR DAMAGE; REIMBURSEMENT
	 	 	51	 
	ARTICLE 14 DESTRUCTION-FIRE OR OTHER CAUSE
	 	 	57	 
	ARTICLE 15 EMINENT DOMAIN
	 	 	62	 
	ARTICLE 16 ASSIGNMENT AND SUBLETTING
	 	 	65	 
	ARTICLE 17 ELECTRICITY
	 	 	74	 
	ARTICLE 18 ACCESS TO PREMISES
	 	 	77	 
	ARTICLE 19 DEFAULT
	 	 	80	 
	ARTICLE 20 REMEDIES AND DAMAGES
	 	 	83	 
	ARTICLE 21 LANDLORD’S RIGHT TO CURE; REIMBURSEMENT
	 	 	87	 
	ARTICLE 22 NO REPRESENTATIONS BY LANDLORD; LANDLORD’S APPROVAL
	 	 	88	 
	ARTICLE 23 END OF TERM
	 	 	90	 
	ARTICLE 24 NO SURRENDER; NO WAIVER
	 	 	91	 
	ARTICLE 25 WAIVER OF TRIAL BY JURY
	 	 	93	 
	ARTICLE 26 INABILITY TO PERFORM
	 	 	93	 
	ARTICLE 27 NOTICES
	 	 	93	 
	ARTICLE 28 RULES AND REGULATIONS
	 	 	95	 
	ARTICLE 29 PARTNERSHIP TENANT
	 	 	95	 
	ARTICLE 30 VAULT SPACE
	 	 	97	 
	ARTICLE 31 LANDLORD’S AGENT
	 	 	98	 
	ARTICLE 32 INDEMNITY
	 	 	99	 
	ARTICLE 33 ADJACENT EXCAVATION; SHORING
	 	 	101	 
	ARTICLE 34 TAX STATUS OF BENEFICIAL OWNERS
	 	 	102	 
	ARTICLE 35 GUARANTY
	 	 	103	 
	ARTICLE 36 RENEWAL OPTION
	 	 	103	 
	ARTICLE 37 RETAIL SPACE RIGHT OF FIRST OFFER
	 	 	105	 
	ARTICLE 38 DISPUTE RESOLUTION PROCEDURE
	 	 	111	 
	ARTICLE 39 MUSIC HALL COVENANTS
	 	 	113	 
	ARTICLE 40 VIP CLUB
	 	 	120	 
	ARTICLE 41 STUDIO APARTMENT
	 	 	121	 
	ARTICLE 42 MISCELLANEOUS
	 	 	122	 






i









 






	 	 	 	 	 
	EXHIBITS:	 	 	 	 
	 
	A-1

	 	-
	 	MUSIC HALL FLOOR PLAN
	 
	A-2

	 	-
	 	1270 SPACE FLOOR PLAN
	 
	A-3

	 	-
	 	50 ROCK SPACE FLOOR PLAN
	 
	A-4

	 	-
	 	RETAIL SPACE #1
	 
	A-5

	 	-
	 	OFFER SPACE #1
	 
	A-6

	 	-
	 	OFFER SPACE #2
	 
	A-7

	 	-
	 	INTENTIONALLY OMITTED
	 
	A-8

	 	-
	 	DISPLAY WINDOW SPACE
	 
	B

	 	-
	 	DEFINITIONS
	 
	C

	 	-
	 	NBC RESTRICTIONS
	 
	D-1

	 	-
	 	CHILLED WATER SPECIFICATION FOR 1270 AVENUE OF THE AMERICAS
	 
	D-2

	 	-
	 	1270 SPACE CHILLED WATER SPECIFICATION
	 
	E

	 	-
	 	INTENTIONALLY OMITTED
	 
	F

	 	-
	 	RETAIL OFFER SPACE COVENANTS
	 
	G

	 	-
	 	STUDIO APARTMENT FLOOR PLAN
	 
	H

	 	-
	 	RULES AND REGULATIONS






	 	 	 	 	 
	 
	SCHEDULES:	 	 	 	 
	 
	1

	 	-
	 	FIXED RENT(EXCEPT FOR RETAIL SPACE) FROM 10/98 -2/01
	 
	2

	 	-
	 	PERCENTAGE RENT
	 
	3

	 	-
	 	RETAIL OPERATING EXPENSE PAYMENT
	 
	4

	 	-
	 	LANDLORD’S MUSIC HALL PROPERTY
	 
	5

	 	-
	 	LANDLORD’S STUDIO APARTMENT PROPERTY
	 
	6

	 	-
	 	GUARANTY






ii 









 






INDEX
OF DEFINED TERMS



* * * * * [Text on pages iii, iv and v omitted.]



 





iii 









 





Portions of this exhibit have been omitted pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. The omissions have been indicated by asterisks
(“*****”), and the omitted text has been filed separately with the Securities and Exchange
Commission.





LEASE




     THIS LEASE is made as of the 4th day of December, 1997, between RCPI TRUST, a Delaware
business trust having an office c/o Tishman Speyer Properties, L.P., 45 Rockefeller Plaza, New
York, New York 10111 (“Landlord”), and RADIO CITY PRODUCTIONS LLC, a Delaware limited
liability company having an office at 1260 Avenue of the Americas, New York, New York 10020
(“Tenant”).



     Landlord and Tenant hereby covenant and agree as follows:



ARTICLE 1




BASIC LEASE PROVISIONS




	 	 	 
	MUSIC HALL

	 	The building, fixtures, equipment and other
improvements and appurtenances now located or
hereafter erected, located or placed upon the land
on which Radio City Music Hall is situated,
substantially as shown on Exhibit A-1, but excluding
the building, fixtures, equipment and other
improvements and appurtenances known as 1270 Avenue
of the Americas.
	 
	 	 
	1270 SPACE

	 	The mezzanine level of 1270 Avenue of the Americas,
substantially as shown on Exhibit A-2.
	 
	 	 
	50 ROCK SPACE

	 	A portion of the concourse level and a portion of
the subconcourse level of 50 Rockefeller Plaza,
substantially as shown on Exhibit A-3.






 









 






	 	 	 
	RETAIL SPACE #1

	 	A portion of the ground floor of 1270 Avenue of the
Americas as well as storage space located on the 5th
floor of 1270 Avenue of the Americas, substantially
as shown on Exhibit A-4.
	 
	 	 
	RETAIL SPACE

	 	Retail Space #1 and any additional retail space
leased by Tenant pursuant to Article 37 if, as and
when such retail space is so leased.
	 
	 	 
	ANCILLARY SPACE

	 	The 1270 Space, the 50 Rock Space and the Retail
Space, collectively.
	 
	 	 
	PREMISES

	 	The Music Hall and the Ancillary Space, collectively.
	 
	 	 
	BUILDINGS

	 	The Music Hall, 1270 Avenue of the Americas and
50 Rockefeller Plaza, individually and collectively.
	 
	 	 
	ANCILLARY BUILDINGS

	 	1270 Avenue of the Americas and 50 Rockefeller
Plaza, collectively.
	 
	 	 
	EXECUTION DATE

	 	December 4, 1997.
	 
	 	 
	COMMENCEMENT DATE

	 	March 1, 1998.
	 
	 	 
	RENT COMMENCEMENT DATE

	 	As to the Music Hall, the 1270 Space and the 50 Rock
Space, October 1, 1998 and as to Retail Space #1,
the Commencement Date.






2









 






	 	 	 
	INITIAL EXPIRATION DATE

	 	February 28, 2023.
	 
	 	 
	EXPIRATION DATE

	 	February 28, 2023, or if the Term shall be extended
in accordance with Article 36, February 28, 2033.
	 
	 	 
	TERM

	 	The period commencing on the Commencement Date and
ending on the Expiration Date or sooner termination
of this Lease as provided herein.
	 
	 	 
	PERMITTED USES

	 	(a) In the case of the Music Hall, activities
consistent with the character and reputation of the
Music Hall and the Center (as hereinafter defined)
as a first-class, mixed use, urban office, retail
and entertainment center consistent with the nature
of activities conducted at the Music Hall during the
5-year period immediately preceding the Execution
Date, including production, management, presentation
and exhibition of motion pictures, live stage plays
(musical and otherwise), concerts, recitals,
readings, parties, broadcasts, live or taped
television shows and other live or taped
presentations, theatrical or otherwise, industrial
shows, conventions, the retail sale of food,
beverages, including alcoholic beverages (to the
extent permitted by applicable Requirements) and






3









 






	 	 	 
	 

	 	merchandise associated with all of the foregoing
uses, tours of the Premises, and ancillary office
uses; (b) in the case of the 1270 Space, a
first-class club with a capacity to serve
first-class, high quality food and beverages,
including alcoholic beverages (to the extent
permitted by applicable Requirements) to its patrons
(which may include a full kitchen) and which shall
be designed to cater primarily to patrons of the
Music Hall and to operate in conjunction with the
activities permitted to take place therein as
provided in subparagraph (a) above and ancillary
office uses; (c) in the case of the 50 Rock Space,
uses ancillary to the Music Hall, including (i) a
back stage facility in connection with Music Hall
activities and (ii) storage space and (d) in the
case of Retail Space #1, (i) the sale of retail
merchandise related to (A) the Music Hall and events
staged at the Music Hall and (B) Madison Square
Garden (the “Garden”) and events staged at the
Garden (which may include merchandise bearing the
name and likeness of professional athletic teams
whose so-called “home games” are played at the
Garden), (ii) the sale of tickets for tours of the
Music Hall, (iii) the sale at retail of candy,
newspaper and magazines, (iv) the sale of






4









 






	 	 	 
	 

	 	merchandise which prominently features New York
City; provided that the merchandise described in
this clause (iv) may not account for more than 10%
of the exhibition area in the retail portion of
Retail Space #1 and (v) with respect to the storage
portion of Retail Space #1, solely storage use.
	 
	 	 
	BASE TAX YEAR

	 	The Tax Year commencing on July 1, 1998 and ending
on June 30, 1999.
	 
	 	 
	TENANT’S AREA

	 	569,063 rentable square feet.
	 
	 	 
	TENANT’S MUSIC HALL AREA

	 	548,250 rentable square feet.
	 
	 	 
	TENANT’S 1270 AREA

	 	10,000 rentable square feet.
	 
	 	 
	TENANT’S 50 ROCK AREA

	 	± 10,000 rentable square feet.
	 
	 	 
	TENANT’S RETAIL SPACE AREA

	 	813 rentable square feet, which may be increased
pursuant to Article 37.
	 
	 	 
	FIXED RENT

	 	(a) For the Music Hall, the 1270 Space and the
50 Rock Space, ***** per annum (***** per month) for
the period commencing on the Rent Commencement Date
and ending on the Initial Expiration Date and
(b) for Retail Space #1, (i) ***** per annum (*****
per month) for the period commencing on the
Commencement Date and






5









 






	 	 	 
	 

	 	ending on the day immediately
preceding the 5th anniversary of the
Commencement Date, both dates inclusive; (ii) *****
per annum (***** per month) for the period
commencing on the 5th anniversary of the
Commencement Date and ending on the day immediately
preceding the 10th anniversary of the
Commencement Date, both dates inclusive; (iii) *****
per annum (***** per month) for the period
commencing on the 10th anniversary of the
Commencement Date and ending on the day immediately
preceding the 15th anniversary of the
Commencement Date, both dates inclusive; (iv) *****
per annum (***** per month) for the period
commencing on the 15th anniversary of the
Commencement Date and ending on the day immediately
preceding the 20th anniversary of the
Commencement Date, both dates inclusive; and
(v) ***** per annum (***** per month) for the period
commencing on the 20th anniversary of the
Commencement Date and ending on the Initial
Expiration Date.
	 
	 	 
	ADDITIONAL RENT

	 	All sums other than Fixed Rent payable by Tenant to
Landlord under this Lease, including Tenant’s Tax
Payment, the Retail Operating Expense






6









 






	 	 	 
	 

	 	Payment,
Percentage Rent, payments for failing to comply
with, and as set forth in, Section 39.10, late
charges, overtime or excess service charges and
other charges, and interest and other costs related
to Tenant’s failure to perform any of its
obligations under this Lease.
	 
	 	 
	RENT

	 	Fixed Rent and Additional Rent, collectively.
	 
	 	 
	LANDLORD’S AGENT

	 	Tishman Speyer Properties, L.P., or any other Person
designated by Landlord from time to time as
Landlord’s Agent.
	 
	 	 
	GUARANTOR

	 	Madison Square Garden, L.P. (“MSG”) or any
transferee pursuant to a Transfer of Control (as
defined in Section 16.5) which shall satisfy the
requirements set forth in Article 35.





All capitalized terms used in the text of this Lease without definition are defined in this
Article 1 or in Exhibit B. In the event of any inconsistency between a capitalized
term defined in the text of this Lease and the definition contained in this Article 1, the text of
this Lease shall control.




ARTICLE 2




PREMISES; TERM; RENT




     Section 2.1 Lease of Premises. Subject to the terms of this Lease, Landlord leases to
Tenant and Tenant leases from Landlord the Premises for the Term.



7









 





     Section 2.2 Payment of Rent. Tenant shall pay to Landlord, without notice or demand,
and without any set-off, counterclaim, abatement or deduction whatsoever, except as may be
expressly set forth in this Lease, in lawful money of the United States by wire transfer of funds
to Landlord’s account, as designated by Landlord, or, at Landlord’s option, by check drawn upon a
bank reasonably approved by Landlord: (i) Fixed Rent in equal monthly installments, in advance, on
the first day of each calendar month during the Term, commencing on the Rent Commencement Date and
(ii) Additional Rent, at the times and in the manner set forth in this Lease. Notwithstanding the
foregoing, provided no Event of Default shall have occurred and be continuing, during the period
beginning on October 1, 1998 and ending on February 28, 2001, Tenant shall pay Fixed Rent with
respect to the Music Hall, the 1270 Space and the 50 Rock Space in accordance with
Schedule 1 annexed hereto.



     Section 2.3 Interest. If Tenant shall fail to pay any installment or other payment of
Rent within three (3) days after the same shall be due, interest shall accrue on such installment
or payment as a late charge, from the date such installment or payment became due until the date
paid, at the Interest Rate.



     Section 2.4 Percentage Rent. In addition to Fixed Rent, Tenant agrees to pay to
Landlord as Additional Rent a percentage of Tenant’s “Gross Revenues” in accordance with the terms
and conditions set forth on Schedule 2 annexed hereto.



     Section 2.5 Retail Space #1 Operating Expenses. Tenant shall pay to Landlord as
Additional Rent an amount (the “Retail Operating Expense Payment”) payable in accordance
with the terms and conditions set forth on Schedule 3 annexed hereto.



8









 





ARTICLE 3




USE AND OCCUPANCY




     Section 3.1 (a) Permitted Uses. Tenant shall use and occupy the Premises for the
Permitted Uses and for no other purpose. Tenant shall not use or occupy or permit the use or
occupancy of any part of the Premises in a manner constituting a Prohibited Use. If Tenant uses the
Premises for a purpose which constitutes a Prohibited Use or violates any Requirement, or which
causes the Buildings to be in violation of any Requirement, Tenant shall promptly discontinue such
use upon notice of such violation. If, upon notice to Tenant, Landlord asserts that Tenant or any
Tenant Party is using the Premises for a Prohibited Use and Tenant in good faith contests such
assertion, then Tenant and/or such Tenant Party shall have the right to continue to use the
Premises for such contested use while the matter shall be resolved by the Dispute Resolution
Procedure provided for in Article 38, provided that if Landlord, in its good faith
judgment, deems that such Prohibited Use shall violate any Requirement or materially and adversely
affect any of the Buildings or the occupancy of any tenants in the Buildings, Tenant shall
discontinue such Prohibited Use immediately upon receipt from Landlord of notice to such effect
unless and until such arbitration shall be determined in Tenant’s favor.



     (b) Licenses and Permits. Tenant, at its expense, shall obtain and at all times
maintain and comply with the terms and conditions of all licenses and permits required for the
lawful conduct of the Permitted Uses in the Premises and for the operation of the Refrigeration
Plant in the Music Hall. Landlord shall reasonably cooperate with Tenant in connection with
Tenant’s obtaining such licenses and permits and Tenant shall pay to Landlord all of Landlord’s
actual, reasonable, third party, out of pocket costs and expenses with respect thereto.



9









 





     Section 3.2 Delivery of Premises.



     (a) Music Hall and Retail Space #1. Tenant hereby acknowledges and agrees that an
Affiliate of Tenant, Radio City Productions, Inc. (“RCPI”), currently occupies (i) the
Music Hall pursuant to a lease dated July 1, 1982 between Radio City Music Hall Productions, Inc.
(“RCMHPI”) and Rockefeller Center Properties (“RCP”) as amended by the Lease
Modification Agreement, dated as of July 17, 1996 by and between RCP, RCMHPI and The Grand Tour,
LLC (“Grand Tour”) (the “Lease Modification”) and (ii) Retail Space #1 pursuant to
a lease dated September 26, 1994 between RCMHPI and RCP, as amended by (A) Supplemental Indenture,
dated as of October 1, 1994 by and between RCP and RCMHPI, (B) Assignment with Consent and Release,
dated as of December 8, 1994 between RCMHPI, Grand Tour and RCP, (C) Supplemental Indenture, dated
January 20, 1995 by and between RCMHPI and RCP, (D) Supplemental Indenture, dated January 22, 1996
by and between RCP and Grand Tour and (E) the Lease Modification. Accordingly, Landlord shall be
deemed to have delivered possession and Tenant shall be deemed to have accepted possession of the
Music Hall and Retail Space #1 for all purposes on the Commencement Date.



     (b) 1270 Space. The 1270 Space, including the mechanical room located in the 1270
Space as shown on Exhibit A-2 (the “Mechanical Space”) shall be delivered to Tenant
on the date which is the later of (i) the Commencement Date and (ii) the date which is 120 days
following the Execution Date (the “1270 Delivery Date”). If, for any reason whatsoever,
there shall be a delay in the delivery of possession of the 1270 Space to Tenant, neither Landlord
nor Landlord’s Agent shall have any liability for such delay and the Rent Commencement Date shall
not be affected thereby, except that (A) for each day that Landlord fails to deliver the 1270 Space
following the 1270 Delivery Date, the Rent Commencement Date (with respect to the 1270 Space only)
shall be postponed by one (1) day; provided that such 1-day



10









 







postponement shall not apply to the extent that any such delay in delivery was due to a Tenant
Delay and (B) for each day that Landlord fails to deliver the 1270 Space following the
60th day after the 1270 Delivery Date, then the Rent Commencement Date (with respect to
the 1270 Space only) shall be postponed, in addition to the postponement under clause (A) above, by
one (1) additional day; provided that such additional 1-day postponement shall not apply to the
extent that any such delay in delivery was due to a Tenant Delay or an Unavoidable Delay. For
purposes hereof, the Fixed Rent attributable to the 1270 Space shall be computed at the rate of
***** per square foot per annum. Any installations and equipment remaining in the Mechanical Space
after the 1270 Delivery Date shall be deemed abandoned by Landlord and Tenant may, at its option,
either retain or dispose of such equipment. If the date on which Landlord anticipates delivering
the 1270 Space to Tenant is later than the 1270 Delivery Date, Landlord shall provide Tenant with
not less than five (5) Business Days’ notice of the date (the “1270 Space Availability
Date”) on which Landlord anticipates delivering possession of the 1270 Space to Tenant. If such
1270 Space Availability Date is postponed, Landlord shall notify Tenant and shall specify in such
notice the new anticipated 1270 Space Availability Date.



     (d) Section 223-a. The provisions of this Article are intended to constitute “an
express provision to the contrary” within the meaning of Section 223-a of the New York Real
Property Law or any successor Requirement.



     Section 3.3 Use of Building Name. (a) Neither Tenant nor any occupant of the
Premises shall use the phrase “Rockefeller Center”, or any logo or the image of any recognizable
portion of Rockefeller Center, for any purpose whatsoever, including as or for any corporate, firm
or trade name, trademark, service mark, internet domain name or other designation of source or
origin of any goods or services, or designation or description for goods or services except as
provided in Section 3.3(c) below. The use of the name “The Associated



11









 







Press Building”, as a designation of the building located at 50 Rockefeller Plaza, has been
reserved exclusively for the use of The Associated Press. Tenant agrees that it will not use the
name “The Associated Press Building”, or any simulation or abbreviation thereof, as an address
either on stationery, by listings in the telephone book, or in other printed form or publication or
in advertising matter of any sort.



     (b) Tenant covenants and agrees that Tenant shall never change the name of the Music Hall from
“Radio City Music Hall” without Landlord’s prior written consent, which may be withheld in its sole
and absolute discretion.



     (c) Tenant warrants and represents that it, directly or indirectly, owns (subject to
completion of registration thereof which Tenant shall diligently pursue) all of the rights held by
“Licensor” under that certain intellectual property agreement (the “IP Agreement”) between
Rockefeller Group, Inc. (“RGI”) and Landlord dated July 17, 1996 relating to the “Radio
City Marks” and “Radio City Music Hall Marks” (as said terms are therein defined) originally held
by RGI and all of RGI’s interest in the “Radio City Marks” and “Radio City Music Hall Marks.”
Tenant agrees to retain, or caused to be retained, all of its rights in the Radio City Music Hall
Marks and all of its rights under the IP Agreement relating to such Radio City Music Hall Marks
(collectively, the “IP Rights”) for the Term; provided, however, that upon the assignment
of this Lease to any party subject to and in accordance with the terms of Article 16
hereof, Tenant shall license, or shall cause to be licensed, the IP Rights to any party to whom it
assigns this Lease for the Term. Landlord as licensee under the IP Agreement, hereby acknowledges
and agrees that (i) Tenant has, directly or indirectly, acquired all of RGl’s rights as licensor
under the IP Agreement, and (ii) all references in the IP Agreement to “Radio City Music Hall
Productions, Inc.” or “RCMHPI” as the tenant of the Music Hall shall be deemed to refer to Tenant.
In any of Tenant’s print advertising with respect to the Music Hall and events scheduled to take
place in



12









 







the Music Hall which shall exceed one half of one page, Tenant shall prominently utilize the
Radio City Music Hall Marks and identify the location “at Rockefeller Center,” and/or “at Radio
City Music Hall” subject to and in accordance with the terms of the IP Agreement.



     Section 3.4 Broadcasting Restrictions. Landlord has entered into a Declaration of
Covenants and Restrictions with National Broadcasting Company, Inc., dated as of July 17, 1996, a
memorandum of which has been recorded in the Office of the Register of the City of New York, New
York County (the “Declaration”), pursuant to which Landlord agreed to include, in all
leases, licenses and occupancy agreements for space in the Center entered into from and after the
date of the Declaration, certain restrictions on the ability of tenants, licensees and other
occupants under such agreements to conduct, allow or permit certain broadcast and related
activities in the Center (the “Restrictions”). A copy of the Restrictions is attached to
this Lease as Exhibit C. Tenant agrees that it shall not take or fail to take, or permit,
cause or allow to be taken, any action, and shall not enter into any arrangement, which would
violate or cause a violation of the Restrictions.



ARTICLE 4




CONDITION OF THE PREMISES




     Section 4.1 Condition. Tenant has inspected the Premises and agrees (i) to accept
possession of the Premises in the “as is” condition existing on the Commencement Date, (except with
respect to the 1270 Space, which shall be in the “as is” condition existing on the date possession
of such space is delivered to Tenant in accordance with the terms of this Lease), (ii) that neither
Landlord nor Landlord’s agents have made any representations or warranties with respect to the
Premises or the Buildings except as expressly set forth herein, and (iii) Landlord has no
obligation to perform any work, supply any materials, incur any expense or make any alterations or
improvements to the Premises to prepare the Premises for



13









 




Tenant’s occupancy, except that Landlord shall, at Tenant’s expense, and subject to the other
terms of this Lease, cooperate with Tenant in connection with Tenant’s bringing any required
utilities to the Ancillary Space that are not currently available to such Ancillary Space. Tenant’s
continued occupancy of the Music Hall and Retail Space #1, and Tenant’s taking possession of any
part of the 1270 Space or the 50 Rock Space shall be conclusive evidence, as against Tenant, that
(A) Tenant has accepted possession of the Premises in their then current condition and (B) the
Premises are in a good and satisfactory condition as required by this Lease. With respect to Retail
Space #1, Tenant acknowledges that it will be required to replace the HVAC system serving such
space from and after the Execution Date because the equipment currently serving such space and
located in the 1270 Space shall be disconnected and no longer in service. Nothing contained herein
shall be deemed to relieve Landlord of its obligations during the Term under Article 7
hereof.




ARTICLE 5




ALTERATIONS




     Section 5.1 (a) Tenant’s Music Hall Alterations. Except as hereinafter provided,
Tenant shall not make any alterations, additions or other physical changes in or about the Music
Hall, including any alteration performed pursuant to Section 9.1(d) (collectively,
“Music Hall Alterations”), without Landlord’s prior consent, provided that Landlord shall
not unreasonably withhold or condition such consent except in the case of Music Hall Alterations
affecting the exterior of the Music Hall. Notwithstanding the foregoing, Landlord’s consent shall
not be required for Music Hall Alterations which (i) are non-structural and do not affect the
Refrigeration Plant (as defined in Section 7.2(b)) or, in any material respect, an
Independent System, (ii) are performed only by contractors approved by Landlord, which approval
shall not be unreasonably withheld or delayed, to perform such Music Hall Alterations, (iii) affect
only the



14









 




Music Hall and are not visible from outside the Music Hall, (iv) do not affect the certificate
of occupancy issued for the Music Hall or the 1270 Space, (v) are consistent with the then design,
construction and equipment of the Music Hall and the Center, (vi) do not affect the Music Hall’s
life safety system, (vii) do not adversely affect any service furnished by Landlord in connection
with the operation of the Music Hall or the Center, (viii) do not affect the exterior or windows of
the Music Hall and (ix) are in compliance with all Requirements.




     (b) Tenant’s Ancillary Space Alterations. Tenant shall not make any alterations in or
about the Ancillary Space (“Ancillary Space Alterations”) (other than Ancillary Space
Alterations which are decorative in nature such as painting, wall coverings and floor coverings,
collectively, “Decorative Alterations”), without Landlord’s prior consent, provided
Landlord will not unreasonably withhold or condition its consent to Ancillary Space Alterations
affecting the Ancillary Space so long as such Ancillary Space Alterations (i) do not adversely
affect any part of the Ancillary Buildings (including the Building Systems) other than the
Ancillary Space, (ii) are performed only by contractors approved by Landlord, which approval shall
not be unreasonably withheld or delayed, to perform such Ancillary Space Alterations in accordance
with this Article, except that, as to the life safety system, Tenant shall use only Landlord’s
designated contractor, (iii) do not affect the certificate of occupancy issued for either of the
Ancillary Buildings or the Ancillary Space except to the extent necessary to permit the Permitted
Uses, (iv) are consistent with the then design, construction and equipment of the Ancillary
Buildings and the Center, (v) do not adversely affect any service furnished by Landlord in
connection with the operation of the Buildings or the Center, (vi) do not affect the exterior or
windows of the Ancillary Buildings or the window treatments on such windows, and (vii) are in
compliance with all Requirements. Tenant’s requests for Landlord’s approval of contractors under
this Section 5.1(b) or engineers under Section 5.1(d) or architects under
Section 5.2 which Tenant seeks to employ shall be deemed granted if such request is not
denied within



15









 




15 days after request therefor is made in writing to Landlord, together with such information
about such contractor or engineer or architect as Landlord may reasonably request; provided that
such request shall make specific reference to this Section 5.1(b) and
Sections 5.1(d) or Section 5.2, if applicable, and state in bold face type as
follows: FAILURE TO GRANT OR DENY THIS REQUEST WITHIN 15 DAYS HEREOF SHALL RESULT IN A DEEMED
APPROVAL.




     (c) Tenant’s requests for Landlord’s approval of Alterations shall be deemed granted if
(i) such requests are not denied within 20 days after request therefor is made in writing to
Landlord and all information and materials required under Section 5.1(d) below have been
provided to Landlord and (ii) a second written request for approval is submitted at the close of
such 20-day period, and such request is not denied within five (5) Business Days after Landlord’s
receipt thereof; provided that such request shall make specific reference to this
Section 5.1(c) and state in bold face type as follows: FAILURE TO GRANT OR DENY THIS
REQUEST FOR APPROVAL WITHIN FIVE BUSINESS DAYS HEREOF SHALL RESULT IN A DEEMED APPROVAL.



     (d) Plans and Specifications. Prior to making any Alterations, Tenant, at its
expense, shall (i) submit to Landlord for its information (and approval to the extent herein
provided), detailed plans and specifications, if customarily prepared for similar Alterations or
required in order to file for any required governmental permits (including layout, architectural,
mechanical, electrical, plumbing, sprinkler and structural drawings), of each proposed Alteration
(other than Decorative Alterations with respect to the Ancillary Space), (ii) with respect to an
Alteration affecting any Independent System, submit proof that such Alteration has been designed by
an engineer approved by Landlord, which approval shall not be unreasonably withheld or delayed, for
the affected Independent System, (iii) with respect to an Alteration



16









 







affecting a Building System, submit the plans and specifications for review by Landlord’s
designated building engineer at Tenant’s cost, (iv) obtain all permits, approvals and certificates
required by any Governmental Authorities, and (v) furnish to Landlord duplicate original policies
or certificates of worker’s compensation (covering all persons to be employed by Tenant, and
Tenant’s contractors and subcontractors in connection with such Alteration) and comprehensive
public liability (including property damage coverage) insurance and Builder’s Risk coverage (issued
on a completed value basis) all in such form, with such companies, for such periods and in such
amounts as Landlord may reasonably require, naming Landlord, the Indemnitees and any other parties
designated by Landlord as additional insureds. Upon Tenant’s request, Landlord shall reasonably
cooperate with Tenant in obtaining any permits, approvals or certificates required to be obtained
by Tenant in connection with any permitted Alteration (if the provisions of the applicable
Requirement require that Landlord join in such application), provided that Tenant shall reimburse
Landlord for any actual, third party, out of pocket cost, expense or liability in connection
therewith. Tenant’s requests for Landlord’s approval of an engineer shall be deemed granted if not
denied within 15 days after written request therefor to the extent provided in
Section 5.1(b).



     (e) Governmental Approvals; Plans. Upon completion of any Alterations, Tenant, at its
expense, shall promptly obtain certificates of final approval of such Alterations required by any
Governmental Authority, and shall furnish Landlord with copies thereof, together with “as-built”
plans and specifications for such Alterations (other than Decorative Alterations) prepared on a
Computer Assisted Drafting and Design System (or such other system or medium as Landlord may
accept, such acceptance not to be unreasonably withheld or delayed) using naming conventions issued
by the American Institute of Architects in June 1990 (or such other naming convention as Landlord
may accept, such acceptance not to be unreasonably



17









 







withheld or delayed) and magnetic computer media of such record drawings and specifications.
translated into DXF format or another format acceptable to Landlord.



     (f) Landmarks Preservation. Tenant is hereby notified that the Premises are subject
to the jurisdiction of the Landmarks Preservation Commission (the “Commission”). In
accordance with Sections 25-305, 25-306, 25-309 and 25-310 of the Administrative Code of the City
of New York and the rules set forth in Title 63 of the Rules of the City of New York, any
demolition, construction, reconstruction, alterations or minor work as described in such sections
and such rules may not be commenced within or at the Premises without prior written approval of the
Commission. Tenant is notified that such demolition, construction, reconstruction, alterations or
minor work includes, but is not limited to, (a) work to the exterior of the Premises involving
windows, signs, awnings, flagpoles, banners and storefront alterations and (b) interior work to the
Premises that (i) requires a permit from the Department of Buildings or (ii) changes, destroys or
affects an interior architectural feature of an interior landmark or an exterior architectural
feature of an improvement that is a landmark or located on a landmark site or in a historic
district.



     Section 5.2 Manner and Quality of Alterations. All Alterations shall be performed
(i) in a good and workerlike manner and Tenant shall use commercially reasonable efforts to have
the same performed free from defects, (ii) in accordance with the plans and specifications as
required under Section 5.1, and by contractors approved by Landlord, such approval not to
be unreasonably withheld or delayed, (iii) other than Decorative Alterations, under the supervision
of a licensed architect approved by Landlord, such approval not to be unreasonably withheld or
delayed, and (iv) in compliance with all Requirements, the terms of this Lease, all reasonable
procedures and regulations then prescribed by Landlord for work



18









 







performed in the Buildings, and the Rules and Regulations. All materials and equipment to be
used in the Premises shall be of first quality and, with respect to the Ancillary Space, at least
equal to the applicable standards for the Ancillary Buildings then established by Landlord and,
with respect to the Music Hall, consistent with the quality and character of the Music Hall, and no
such materials or equipment shall be subject to any lien or other encumbrance except for materials
or equipment typically financed in such manner consistent with good industry practice. In no event
shall Landlord’s Music Hall Property be subjected to any lien or encumbrance by Tenant. Tenant’s
request for Landlord’s approval of an architect shall be deemed granted if not denied within
15 days after written request therefor to the extent Tenant follows the procedures set forth in
Section 5.1(b).



     Section 5.3 (a) Removal of Alterations and Tenant’s Property. All Alterations in the
Premises shall, except as expressly provided below, remain upon and be surrendered with the
Premises, on the Expiration Date or sooner termination of the Term. Landlord shall specify, at the
time Tenant submits plans and specifications to Landlord, those Alterations which are specialty
alterations (“Specialty Alterations”) which shall mean kitchens, stages (other than the
stages existing in the Premises on the Execution Date) and any other Alterations which in
Landlord’s good faith judgment would not be usable by a subsequent tenant of the Music Hall using
the Music Hall as an entertainment facility, which Landlord may, at its election (made at the time
of Landlord’s approval of such Specialty Alterations), require Tenant to remove on or before the
Expiration Date or earlier termination of this Lease. Upon the Expiration Date or earlier
termination of this Lease, Tenant, at Landlord’s request, shall remove any of such Specialty
Alterations (which Landlord shall have elected to have Tenant so remove in accordance with this
Section 5.3(a)) and all of Tenant’s Property and shall repair and restore, in a good and
workerlike manner, any damage to the Premises or the Buildings caused by Tenant’s removal of such
Specialty Alterations or Tenant’s Property, and if Tenant fails to do so,



19









 







Tenant shall reimburse Landlord, on demand, for Landlord’s cost of repairing and restoring
such damage. Any Alterations or Tenant’s Property not so removed at Landlord’s request shall be
deemed abandoned and Landlord may retain same as Landlord’s property, or dispose of same, and
repair and restore any damage caused thereby, at Tenant’s cost and without accountability to
Tenant.



     (b) Landlord’s Music Hall Property. The items set forth on Schedule 4 annexed
hereto (“Landlord’s Music Hall Property”) are owned by Landlord and may be used by Tenant
during the Term. If, at any time after the date hereof, Tenant does not elect to use an item of
Landlord’s Music Hall Property, Tenant shall notify Landlord and Landlord shall, at its option,
either (i) remove the same at Landlord’s expense or (ii) abandon such item and Tenant may then
dispose of such item, at its expense, without liability to Landlord. If Tenant shall elect to
replace any item of Landlord’s Music Hall Property with an item performing a similar function,
Tenant shall notify Landlord in writing describing such replacement item and such replacement item
shall be purchased at Tenant’s expense with title thereto in the name of Landlord and thereafter
such replacement item shall be deemed an item constituting Landlord’s Music Hall Property for all
purposes and the parties agree, at the request of either party, to execute an amendment to
Schedule 4 reflecting such additional item of Landlord’s Music Hall Property. Tenant shall
maintain Landlord’s Music Hall Property (except for such items that Landlord shall abandon)
throughout the Term in good order and repair and, upon the Expiration Date or earlier termination
of this Lease, Landlord’s Music Hall Property to the extent not abandoned by Landlord pursuant
hereto shall be returned to Landlord in the same condition received by Tenant, reasonable wear and
tear and damage by casualty, excepted.



     Section 5.4 Mechanic’s Liens. Tenant, at its expense, shall discharge any lien or
charge filed against the Premises or the Real Property in connection with any work done



20









 







by or on behalf of, or materials furnished to, Tenant, within 30 days after Tenant’s receipt
of notice thereof by payment, filing the bond required by law or otherwise in accordance with law.



     Section 5.5 Labor Relations. (a) Tenant shall not employ, or permit the employment
of, any contractor or laborer, or permit any materials to be delivered to or used in the Buildings,
if, in Landlord’s reasonable judgment, such employment, delivery or use will interfere or cause any
conflict or disharmony with other contractors or laborers engaged in the construction, maintenance
or operation of the Buildings or the Center by Landlord, Tenant or others, or the use and enjoyment
of the Buildings or the Center by other tenants or occupants. In the event of such interference,
conflict or disharmony, upon Landlord’s request, Tenant shall cause all contractors and laborers
causing such interference or conflict to leave the applicable Building (or Buildings) immediately
until such interference, conflict or disharmony ceases.



     (b) Landlord shall not employ, or permit the employment of, any contractor or laborer, or
permit any materials to be delivered to or used in the Premises, if, in Tenant’s reasonable
judgment, such employment, delivery or use will interfere or cause any conflict or disharmony with
other contractors or laborers engaged in the construction, maintenance or operation of the Premises
by Landlord, Tenant or others. In the event of such interference, conflict or disharmony, upon
Tenant’s request, Landlord shall cause all contractors and laborers causing such interference or
conflict to leave the Premises immediately until such interference, conflict or disharmony ceases.



     (c) Landlord and Tenant shall cooperate with one another to minimize any labor conflict or
disharmony.



     Section 5.6 Tenant’s Costs. Tenant shall pay to Landlord or its designee, within
10 days after demand, all reasonable, third-party, out-of-pocket costs actually incurred by



21









 







Landlord in connection with Tenant’s Alterations, including such costs incurred in connection
with (i) Landlord’s review of the Alterations (including review of requests for approval thereof),
and (ii) the provision of Buildings’ personnel during the performance of any Alterations required
by trade union policy to operate elevators or otherwise to facilitate Tenant’s Alterations (which
personnel would not otherwise be employed in such capacity but for the performance of such
Alterations); provided that Landlord shall furnish to Tenant reasonable back-up documentation for
any such costs which Tenant is obligated to reimburse to Landlord.



     Section 5.7 Tenant’s Equipment. With respect to the Ancillary Space, Tenant shall not
move any heavy machinery, heavy equipment, freight, bulky matter or fixtures into or out of the
Buildings without Landlord’s prior consent and payment to Landlord of Landlord’s reasonable charges
in connection therewith. If any machinery, equipment or other items in the Premises require special
handling, Tenant agrees (i) to employ only persons holding a Master Rigger’s License to perform
such work, and (ii) such work shall be done only during hours designated by Landlord.



     Section 5.8 Legal Compliance. The approval of plans or specifications, or the consent
by Landlord to the making of any Alterations, does not constitute Landlord’s agreement or
representation that such plans, specifications or Alterations comply with any Requirements or the
certificate of occupancy issued for the Buildings. Any review by Landlord of any plans and/or
specifications or any preparation or design of any plans or specifications by Landlord’s architect
or engineer (or any architect or engineer designated by Landlord) with respect to any Alteration is
solely for Landlord’s benefit, and without any representation or warranty whatsoever to Tenant or
to any other Person with respect to the compliance thereof with any Requirements, the adequacy,
correctness or efficiency thereof or otherwise. If, as the result of any Alterations made by or on
behalf of Tenant, Landlord is required to make any



22









 







alterations or improvements to any part of the Buildings in order to comply with any
Requirements, whether or not in the Premises, Tenant shall pay all costs and expenses incurred by
Landlord in connection with such alterations or improvements as provided in Article 21.
Landlord, upon reviewing Tenant’s plans, shall endeavor to identify any such alterations or
improvements which Landlord may be obligated to make as a result of Tenant’s Alterations, but such
failure to do so on Landlord’s part shall not relieve Tenant of its obligations under the preceding
sentence.



ARTICLE 6




FLOOR LOAD




     Section 6.1 Floor Load. Tenant shall not place a load upon any floor in the Premises
that exceeds the then existing capacities of the Premises. Landlord reserves the right to
reasonably designate the position of all heavy machinery, equipment and fixtures which Tenant
wishes to place within the Ancillary Space, and to place limitations on the weight thereof, in
accordance with the Rules and Regulations.



ARTICLE 7




REPAIRS




     Section 7.1 Landlord’s Repair and Maintenance.



     (a) Ancillary Space. Landlord shall maintain and, except as provided in
Section 7.2 hereof, make all necessary repairs (both structural and nonstructural) to
(i) the Building Systems serving the Ancillary Space, (ii) the portion of the common areas of the
Buildings which Tenant is granted the right to use pursuant to this Lease and (iii) the structural
elements of the Ancillary Buildings, both exterior and interior, including the roof, foundation and



23









 







curtain wall, in conformance with standards applicable to first-class office buildings of
comparable age and quality in midtown Manhattan.



     (b) Music Hall. Except as provided in Section 7.2, Landlord shall maintain
and keep in good repair the Music Hall’s roof and exterior walls and windows (exclusive of the
exterior window glass portion thereof which shall be maintained and replaced by Tenant as provided
in Section 39.3). It is acknowledged that the Music Hall’s roof contains skylights which
have been covered with roofing materials and Landlord shall maintain such portions of the roof. If,
at any time, Tenant shall seek to restore all or any of such skylights to function as clear
skylights. such restoration shall constitute a Music Hall Alteration and Tenant shall conduct such
Music Hall Alteration (and all subsequent maintenance and repair of such skylights) at its expense.
Landlord shall also, when necessary, maintain, keep in good repair and clean, consistent with the
standards used with respect to the remainder of the Center, the sidewalks surrounding the Music
Hall (including the brass maintenance (but not repair) of any decorative sidewalks) and remove snow
or ice covering such sidewalks; provided, any repair, maintenance or cleaning which is Landlord’s
responsibility under this Section 7.1(b) but is required by reason of any act, omission,
neglect or improper conduct of any Tenant Party (other than any Tenant’s invitee) shall, subject to
provisions of Section 13.3, be performed at Tenant’s expense. Except as provided in the
immediately preceding sentence, Landlord shall have no obligation to maintain or make any repairs
to the Music Hall, including (i) the marquees and the exterior metal surfaces of the Music Hall or
(ii) the fixtures, equipment and appurtenances in the Music Hall and (iii) the signage for the
Music Hall.



     Section 7.2 Tenant’s Repair and Maintenance.



     (a) Ancillary Space. Tenant shall, promptly following the date any of the repairs
hereafter described is required, at its expense and in compliance with Article 5 of this



24









 







Lease, (i) make all nonstructural repairs to the Ancillary Space and the fixtures, equipment
and appurtenances (which are not Building Systems) therein as and when needed to preserve the
Ancillary Space in good working order and condition, except for reasonable wear and tear, damage
for which Tenant is not responsible pursuant to this Lease and damage arising from the negligence
or willful misconduct of Landlord or Landlord’s agents, which, subject to the provisions of
Section 13.3, Landlord shall repair at its expense and (ii) replace or repair scratched or
damaged doors, signs and glass (other than exterior window glass) in and about the Ancillary Space.
Without limiting the foregoing, all damage to the Ancillary Space or to any other part of the
Ancillary Buildings, or to any fixtures, equipment, sprinkler system and/or appurtenances thereof,
whether requiring structural or nonstructural repairs, caused by or resulting from any act,
omission, neglect or improper conduct of, or Ancillary Space Alterations made by, or the moving of
Tenant’s fixtures, furniture or equipment, including machinery and heavy equipment, into, within or
out of the Ancillary Space by any Tenant Party (other than any Tenant’s invitee), shall be repaired
at Tenant’s expense. All repairs required to be made by Tenant pursuant to this
Section 7.2(a) shall be made by (A) Tenant, at Tenant’s expense if the required repairs are
nonstructural in nature and do not affect any Building System or any portion of the Ancillary
Buildings outside of the Ancillary Space, or (B) Landlord, at Tenant’s expense (equal to the
reasonable, third party, out-of-pocket expenses actually incurred by Landlord with respect to which
Landlord shall provide reasonable supporting documentation), if the required repairs are structural
in nature, involve replacement of exterior window glass (if damaged by any Tenant Party other than
any Tenant invitee), or affect any Building System or any portion of the Ancillary Buildings
outside of the Ancillary Space and provided Landlord shall furnish Tenant with reasonable
supporting documentation thereof. Tenant shall give Landlord prompt notice of any defective
condition of which Tenant is aware in any structural element or any Building System located in,
servicing or passing through the Ancillary Space. All Tenant repairs shall be



25









 







of a quality at least equal to the original work or construction using new construction
materials, and shall be made in accordance with this Lease. If Tenant fails to proceed with due
diligence to make any repairs required to be made by Tenant within a reasonable time not to exceed
thirty (30) days after Landlord has so notified Tenant, Landlord may make such repairs, and all
costs and expenses incurred by Landlord in so doing shall be paid by Tenant as provided in
Article 21.



     (b) Music Hall. Except as provided in Section 7.1(b), Tenant shall operate,
maintain and make all necessary repairs, promptly, at its expense and in compliance with
Article 5 of this Lease, to the Music Hall, including (i) the marquees and exterior metal
surfaces, (ii) the fixtures, equipment and appurtenances including the refrigeration plant which
provides chilled water to the Music Hall (the “Refrigeration Plant”) and the Independent
Systems servicing the Music Hall, as and when needed to preserve the Music Hall in good working
order and condition, (iii) the signage for the Music Hall and (iv) repair or replace scratched or
damaged doors, signs and glass (including exterior window glass in accordance with
Section 39.3) in and about the Music Hall. Such repairs shall be made by (x) Tenant, at
Tenant’s expense if the required repairs do not affect the exterior of the Music Hall (other than
the marquees, the exterior metal surfaces and the signage for the Music Hall, which shall be
repaired by Tenant at its expense) or (y) at Landlord’s election, Landlord, if the required repairs
affect the exterior of the Music Hall (other than the marquees, the exterior metal surfaces and the
signage for the Music Hall which shall be performed by Tenant at its expense) and Tenant shall pay
all reasonable, third party, out of pocket costs actually incurred by Landlord in connection with
such repairs. Tenant shall use reasonable efforts to give Landlord prompt notice of any defective
condition of which Tenant is aware in the Refrigeration Plant or any Independent System located in,
servicing or passing through the Music Hall. All Tenant repairs shall be of a quality at least
equal to the original work or construction using new construction



26









 







materials, and shall be made in accordance with this Lease. With respect to the maintenance of
the Refrigeration Plant, Tenant, at its expense, shall enter into annual maintenance contracts with
contractors approved by Landlord, which approval shall not be unreasonably withheld or delayed, and
Tenant shall, upon the execution of any such maintenance contract, provide Landlord with a copy of
such contract. If Tenant fails to enter into any such contract within 10 days after receipt of a
notice from Landlord regarding same, Landlord may do so at Tenant’s expense and Tenant shall pay to
Landlord, within 30 days after Tenant’s receipt of a written demand therefor, any amount due and
owing under such contract. Landlord may, from time to time, after notice to Tenant, inspect the
Refrigeration Plant and the Independent Systems servicing the Music Hall to assure that Tenant
shall be maintaining the Refrigeration Plant and such Independent Systems in a first-class manner
consistent with similar first-class buildings in New York. If Tenant fails to proceed with due
diligence to make any repairs required to be made by Tenant pursuant to this subsection, Landlord
may, subject to any requirement of notice contained in Article 21, make such repairs, and
all reasonable, third-party, out-of-pocket costs and expenses actually incurred by Landlord in so
doing shall be paid by Tenant as provided in Article 21.



     (c) Tenant’s Acts and Omissions. Subject to Section 13.3, Tenant, at its
expense, shall make any and all repairs to the Premises required by reason of Tenant’s negligent
acts or omissions or willful malfeasance. Subject to Section 13.3, Landlord, at Tenant’s
expense (equal to the reasonable, third party, out-of-pocket expenses actually incurred by landlord
with respect to which Landlord shall provide reasonable documentation), shall make any and all
repairs to the other portions of the Center required by reason of Tenant’s negligent acts or
omissions or willful malfeasance.



27









 





     Section 7.3 Interruptions Due to Repairs. Landlord reserves the right to make all
changes, alterations, additions, improvements, repairs or replacements to the Ancillary Buildings
and the Center, including the Building Systems which provide services to Tenant, as Landlord deems
necessary or desirable; provided that, as to the Music Hall, Landlord shall only make such changes,
alterations, additions, improvements, repairs and replacements (a) as are its responsibility or
which Tenant fails to make and Landlord furnishes a notice requesting such repair or replacement as
provided in Section 7.2(a) and (b) or, (b) which Landlord has the right to make
following an Event of Default by Tenant or (c) which Landlord, in its good faith judgment, deems
necessary in the event of an emergency, and, provided further, in no event shall the level of any
Building service decrease in any material respect from the level required of Landlord in this lease
as a result thereof (other than temporary changes in the level of such services during the
performance of any such work by Landlord), nor shall there be a denial of Tenant’s access to the
Premises except in the event of any emergency to the extent that no practicable alternative exists.
Landlord shall use reasonable efforts to minimize interference with Tenant’s use and occupancy of
the Premises during the making of such changes, alterations, additions, improvements, repairs or
replacements, provided that Landlord shall have no obligation to employ contractors or labor at
overtime or other premium pay rates or to incur any other overtime costs or additional expenses
whatsoever; provided further, with respect to the Music Hall only, Landlord shall, except in the
case of an emergency, schedule any work or other such matters so as not to interfere with
performances being staged at the Music Hall and, if circumstances demand overtime or other premium
pay rates in order to accommodate such scheduling, the same shall be so performed to the extent
practicable on an overtime basis and Tenant shall pay all of Landlord’s actual out-of-pocket costs
incurred in connection with performing such work on an overtime basis. Without limiting the
foregoing, Landlord shall schedule its routine maintenance during periods of the year other than
when the Radio City



28









 







Christmas Spectacular is being performed. Notwithstanding the foregoing, in circumstances
where Landlord is not required to employ contractors or labor on an overtime basis, to the extent
practicable, and provided Tenant shall agree to pay all actual, third party, out-of-pocket costs
incurred by Landlord in excess of the costs Landlord would have otherwise incurred on a straight
time basis. Except to the extent, if any, expressly provided for in this Lease, there shall be no
Rent abatement or allowance to Tenant for a diminution of rental value, no actual or constructive
eviction of Tenant, in whole or in part, no relief from any of Tenant’s other obligations under
this Lease, and no liability on the part of Landlord, by reason of inconvenience, annoyance or
injury to business arising from Landlord, Tenant or others making, or failing to make, any repairs,
alterations, additions or improvements in or to any portion of the Center, the Buildings or the
Premises, or in or to fixtures, appurtenances or equipment therein.



ARTICLE 8




INCREASES IN REAL ESTATE TAXES




     Section 8.1 Definitions. As used in this Article:



     (a) “Base Tax Factor” means the quotient, expressed in dollars and cents, of (i) the
Taxes payable for the Base Tax Year, divided by (ii) the Center Tax Area for the Base Tax Year.



     (b) “Center Tax Area” means the number of square feet in the rentable area of the
Center for which Taxes are payable by Landlord or any Affiliate of Landlord, excluding the rentable
area of any space in the Center not owned by Landlord or any Affiliate of Landlord or for which
Taxes are not payable. Notwithstanding the foregoing, Landlord shall from time to time:



29









 






     (i) subtract from the Center Tax Area the rentable area of space in the Center for
which Taxes are not payable by Landlord or an Affiliate of Landlord; and




     (ii) add to the Center Tax Area to include additional rentable area of the Center for
which Taxes are payable by Landlord or an Affiliate of Landlord.



     (c) “Landlord’s Statement” means an instrument or instruments containing a comparison
of the Base Tax Factor and the Tax Factor for any Tax Year.



     (d) “Taxes” means the taxes and assessments paid or payable with respect to the
Center, including assessments made as a result of the Center or any part thereof being within a
business improvement district, other than any interest or penalties imposed in connection
therewith, and all expenses, including fees and disbursements of counsel and experts, reasonably
incurred by Landlord in connection with any application for a reduction in the assessed valuation
for the Center or for a judicial review thereof (but in no event shall such expenses be included in
Taxes payable for the Base Tax Year); provided that, except to the extent provided in the next
sentence, Taxes shall not include franchise, income, profit or estate taxes. If due to a future
change in the method of taxation any franchise, income, profit or other tax shall be levied in
substitution in whole or in part for or in lieu of any tax which would otherwise constitute a Tax,
such franchise, income, profit or other tax shall be deemed to be a Tax for the purposes of this
Lease. With respect to assessments which may be paid in installments, Landlord shall elect to pay
them in the maximum number of installments and each of such installments together with all interest
imposed thereon by the applicable governmental authority shall be deemed to be included in Taxes
for the period to which such installment relates. To the extent that expenses incurred by Landlord
in connection with any application for a reduction in assessed valuation of the Center are
reimbursed to Landlord by including same in the definition of Taxes for a particular Tax Year, the
same shall not also be deducted from the



30









 







amount of any refund that Landlord may obtain for such Tax Year so as to avoid any so-called
“double-counting” of the same expense. If there is an abatement applicable to the Center solely by
reason of the Music Hall constituting a portion thereof, such abatement shall be considered in
computing Taxes, but no other exemptions or abatements shall be so considered.



     (e) “Tax Factor” means the quotient, expressed in dollars and cents, of (i) the Taxes
payable for any Tax Year subsequent to the Base Tax Year, divided by (ii) the Center Tax Area for
such Tax Year.



     (f) “Tax Year” means the 12 month period commencing July 1 of each year, or such other
12 month period as may be duly adopted as the fiscal year for real estate tax purposes by the City
of New York.



     Section 8.2 Tax Payments. (a) If the Tax Factor for any Tax Year exceeds the Base
Tax Factor, Tenant shall pay to Landlord, as Additional Rent during each Tax Year, an amount
(“Tenant’s Tax Payment”) equal to (i) Tenant’s Area, multiplied by (ii) the amount by which
the Tax Factor for such Tax Year exceeds the Base Tax Factor. Landlord shall furnish to Tenant a
Landlord’s Statement setting forth Landlord’s computation of Tenant’s Tax Payment for such Tax
Year. Tenant shall pay to Landlord on June 1 and December 1 of each calendar year (or on such other
dates as shall be thirty (30) days prior to each date that an installment of Taxes becomes due) an
amount equal to 1/2 (or such portion of Taxes which may be due on such date) of Tenant’s Tax
Payment for such Tax Year. Landlord may, at any time, furnish to Tenant a revised Landlord’s
Statement of Landlord’s computation of Tenant’s Tax Payment for a particular Tax Year, and in such
case, (A) if such Landlord’s Statement shall show that the sums theretofore paid by Tenant were
less than the sums which should have been paid on account of Tenant’s Tax Payment for such Tax
Year, Tenant shall pay to Landlord the amount of such deficiency in Tenant’s Tax Payment within ten
(10) Business Days after such Landlord’s



31









 







Statement is furnished to Tenant, or (B) if such Landlord’s Statement shall show that the sums
so paid by Tenant were more than the sums that should have been paid on account of Tenant’s Tax
Payment for such Tax Year, Landlord shall credit such overpayment in Tenant’s Tax Payment against
subsequent installments of Rent payable by Tenant or, if at the end of the Term, promptly refund
such amount to Tenant. If there shall be any increase in the Taxes for any Tax Year, whether during
or after such Tax Year, or if there shall be any decrease in the Taxes for any Tax Year, Landlord
shall notify Tenant thereof and Tenant’s Tax Payment for such Tax Year shall be appropriately
adjusted and any deficiencies paid or overpayments credited, as the case may be, substantially in
the same manner as provided in the preceding sentence.



     (b) Tenant shall be obligated to pay Tenant’s Tax Payment regardless of whether Tenant may be
exempt from the payment of taxes as the result of any reduction, abatement, or exemption from Taxes
granted or agreed to by any Governmental Authority, or by reason of Tenant’s diplomatic status or
other tax exempt status. The benefit of any discount for any early payment of Taxes shall accrue
solely to the benefit of Landlord.



     (c) Tenant shall not (and hereby waives any and all rights it may now or hereafter have to)
institute or maintain any action, proceeding or application in any court or other body having the
power to fix or review assessed valuations, for the purpose of reducing Taxes, and the filing of
any such proceeding by Tenant without Landlord’s consent shall be a default hereunder.



     (d) Upon Tenant’s request and provided that Landlord shall theretofore have received a copy of
the tax bill(s) relating to the Center for a particular Tax Year, Landlord shall promptly furnish a
copy of such tax bill to Tenant.



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     (e) Upon Tenant’s request, in the event Landlord shall have adjusted the Center Tax Area
pursuant to Section 8.1(b) above, Landlord shall advise Tenant as to the basis for such
adjustment and the basis for such adjustment shall be consistent with the basis for adjustments
being made generally with respect to tenants in the Center with respect to whom an adjustment in
the Center Tax Area is then being made.



     Section 8.3 Certain Adjustments. (a) Taxes shall not include any taxes and
assessments imposed upon any portion of the Center excluded from the calculation of the Center Tax
Area pursuant to Section 8.1(b) above.



     (b) If the Rent Commencement Date shall be a day other than July 1 or the Expiration Date
shall be a day other than June 30, or if there is any abatement of Fixed Rent payable under this
Lease (other than any abatement under Article 1 hereof) or any termination of this Lease
(other than a termination pursuant to Article 19), or if there is any increase or decrease
in Tenant’s Area or a change in the basis of computing Tenant’s Tax Payment for any Tax Year, then
in each such event in applying the provisions of this Article with respect to the Tax Year in which
the event occurred, appropriate adjustments shall be made to reflect the result of such event on a
basis consistent with the principles underlying the provisions of this Article, taking into
consideration (i) the portion of such Tax Year, as the case may be, which shall have elapsed prior
to or after such event, (ii) the rentable area of the Premises affected thereby, and (iii) the
duration of such event.



     Section 8.4 Non-Waiver. Landlord’s failure to render a Landlord’s Statement on a
timely basis with respect to any Tax Year shall not prejudice Landlord’s right to thereafter render
a Landlord’s Statement with respect to such Tax Year or any subsequent Tax Year, nor shall the
rendering of a Landlord’s Statement prejudice Landlord’s right to thereafter render a corrected
Landlord’s Statement for any Tax Year. Notwithstanding the foregoing, if Landlord



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fails to deliver a Landlord’s Statement for a particular Tax Year and such failure continues
for two (2) years after the close of such Tax Year, then Landlord shall have waived its right
thereafter to deliver a Landlord’s Statement with respect to such Tax Year (but not as to
subsequent Tax Years).



     Section 8.5 Tenant Disputes. Each Landlord’s Statement sent to Tenant shall be
conclusively binding upon Tenant unless Tenant shall (i) within 30 days after such statement is
sent, pay to Landlord the amount set forth in such statement, without prejudice to Tenant’s right
to dispute such statement, and (ii) within 180 days after such statement is sent, send a notice to
Landlord objecting to such statement and specifying the reasons for Tenant’s claim that such
statement is incorrect. If the parties are unable to resolve any such dispute within 30 days
following the giving of Tenant’s notice of objection, either party may refer the issues raised to
an independent firm of certified public accountants selected by Landlord (but not Landlord’s
regular accountant) and reasonably acceptable to Tenant, and the decision of such accountants shall
be conclusively binding upon Landlord and Tenant. In connection therewith, Tenant and such
accountants shall execute and deliver to Landlord a confidentiality agreement, in form and
substance reasonably satisfactory to Landlord, whereby such parties agree not to disclose to any
third party any of the information that is not otherwise public obtained in connection with such
review, or the substance of any admissions or stipulations by any party in connection therewith, or
of any resulting reconciliation, compromise or settlement.



ARTICLE 9




REQUIREMENTS OF LAW




     Section 9.1 (a) Tenant’s Compliance/Landlord’s Compliance. Tenant, at its expense,
shall comply (or cause to be complied) with all Requirements applicable to those portions of the
Premises for which Tenant shall be responsible, regardless of whether imposed



34









 




by their terms upon Landlord or Tenant. If Tenant obtains knowledge of any failure to comply
with any Requirements applicable to those portions of the Premises for which Tenant shall be
responsible for the repair and maintenance as provided in this Lease, Tenant shall use reasonable
efforts to give Landlord prompt notice thereof. All repairs and alterations, ordinary or
extraordinary, required to be made to cause the Premises to comply with any Requirements shall be
made by Tenant, at Tenant’s expense and in compliance with Article 5 if such repairs or
alterations do not affect any Building System, and do not involve the performance of work outside
of the Premises, or, at Landlord’s election, by Landlord, at Tenant’s expense in an amount equal to
the reasonable, third party, out-of-pocket expenses actually incurred by Landlord (based upon
reasonable supporting documentation), if such repairs or alterations affect any Building System, or
involve the performance of work outside the Premises. Any cost incurred by Landlord to repair or
alter, whether structural or nonstructural, ordinary or extraordinary, (i) the Premises to comply
with Requirements or (ii) any other portion or portions of the Buildings or the Center, which
repair or alteration results from Tenant’s use of the Premises, shall be reimbursed by Tenant as
Additional Rent within 30 days after Landlord’s demand therefor. Landlord, at its expense, shall
comply (or cause to be complied) with all Requirements applicable to the Premises or Buildings
other than those with which Tenant or other tenants of the Buildings shall be required to comply,
if Landlord’s failure to do so would have a material and adverse effect on Tenant’s occupancy.




     (b) Hazardous Materials. Tenant shall not (i) cause or permit any Hazardous Materials
to be brought into or onto the Center, (ii) cause or permit the storage or use of Hazardous
Materials in any manner not permitted by any Requirements, or (iii) cause or permit the escape,
disposal or release of any Hazardous Materials within or in the vicinity of the Center. Nothing
herein shall be deemed to prevent Tenant’s use of any Hazardous Materials customarily used in the
ordinary course of using the Premises for the Permitted Uses, provided



35









 







such use is in accordance with all Requirements. Tenant shall be responsible, at its expense,
for the cost of compliance with all Requirements and for all fines, violations and any other such
charges, which arise or result from, the actual or alleged presence of Hazardous Materials (A) in
the Premises and (B) in the Buildings or the Center, provided, as to this clause (B), Tenant shall
only be responsible to the extent the actual or alleged presence of Hazardous Substance is caused
or permitted by Tenant or any Tenant Party. Tenant shall provide to Landlord copies of all
communications received by Tenant with respect to any Requirements relating to Hazardous Materials,
and any claims made in connection therewith. Landlord or its agents may perform environmental
inspections of the Premises at any time.



     (c) Landlord’s Insurance. Tenant shall not cause or permit or suffer any action or
condition that would (i) invalidate or conflict with Landlord’s insurance policies which
contemplate a live entertainment use for the Music Hall, (ii) violate applicable rules, regulations
and guidelines of the Fire Department, Fire Insurance Rating Organization or any other authority
having jurisdiction over the Center, (iii) cause an increase in the premiums for fire insurance
then covering the Buildings over that payable with respect to comparable first-class office
buildings or theaters, or (iv) result in insurance companies of good standing refusing to insure
the Buildings or any property therein in amounts and against risks as reasonably determined by
Landlord. If the fire insurance premiums increase as a result of Tenant’s failure to comply with
the provisions of this Article, Tenant shall promptly cure such failure and shall reimburse
Landlord for the increased fire insurance premiums paid by Landlord as a result of such failure by
Tenant, provided that Landlord shall furnish reasonable supporting documentation therefor. If it is
not practicable for Tenant to cure such failure and continue to operate the Premises for the
Permitted Uses and the only result of such failure is an increase in Landlord’s insurance premium,
then provided Tenant pays such increased premium, Tenant shall not be required to cease such action
so long as the increased premium is the only effect of such failure and,



36









 







provided further, in the event that (A) Landlord’s insurance carrier refuses to provide
certain insurance as a result of Tenant’s failure to comply with the provisions of this Article and
(B) a separate insurance carrier of comparable rating or which is otherwise satisfactory to
Landlord is willing to provide such insurance, Tenant shall pay any increased cost payable by
Landlord by reason of its purchase of such insurance from such separate insurance carrier. In any
action or proceeding to which Landlord and Tenant are parties, a schedule or “make up” of rates for
the Buildings or the Premises issued by the appropriate Fire Insurance Rating Organization, or
other body fixing such fire insurance rates, shall be conclusive evidence of the fire insurance
rates then applicable to the Buildings.



     (d) ADA Compliance. Tenant hereby acknowledges and agrees that it is aware of the
complaint letter, dated February 9, 1995 from the United States Department of Justice to Proskauer,
Rose Goetz & Mendelsohn (the “DOJ Letter”) relating to certain violations of ADA by RCPI.
Without limiting Tenant’s obligations under Section 9.1, Tenant expressly agrees that it
shall, from and after the Execution Date and during the Term, at its own expense, comply with the
requirements of any settlement of, or any final judgment, order or decree relating to, the DOJ
Letter or any subsequent correspondence or complaint with respect to ADA compliance in the Music
Hall, including any ADA requirements relating to conditions existing prior to the Execution Date.
In consideration of the foregoing, Landlord agrees to waive its right to require Tenant to pay
Compliance Costs (as defined in the Lease Modification) up to an aggregate amount of $300,000.
Landlord shall cooperate with Tenant in connection with, and shall approve, any settlement Tenant
shall enter into pursuant to this Section 9.1(d); provided, that (i) such settlement shall
not impose any liability, obligation or expense upon Landlord and (ii) any improvements or
alterations required to be performed by Tenant pursuant to such settlement shall not affect any
area outside of the Premises. Any alterations or improvements



37









 







required to be performed pursuant to such settlement shall constitute a Music Hall Alteration
and be subject to the applicable terms and conditions of this Lease.



     Section 9.2 Fire Alarm System; Sprinklers. Tenant shall install, and thereafter
maintain in good order and repair, a sprinkler system and fire-alarm and life-safety system in each
of the Music Hall, the 1270 Space and the 50 Rock Space (except, as to the Music Hall sprinkler
system, only to the extent required by Requirements), in accordance with this Lease, the Rules and
Regulations and all Requirements if and to the extent such systems have not been installed in the
Premises prior to the date hereof. If the Fire Insurance Rating Organization or any Governmental
Authority or any of Landlord’s insurers requires or recommends any modifications or Alterations be
made or any additional equipment be supplied in connection with the sprinkler system or fire-alarm
and life-safety system serving the Buildings or the Premises by reason of Tenant’s business, or the
location of the partitions, trade fixtures, or other contents of the Premises, Landlord (to the
extent outside of the Premises), or Tenant (to the extent within the Premises) shall make such
modifications or Alterations, and supply such additional equipment, in either case at Tenant’s
expense; provided, however, that if any such recommendation does not have the force of law and
failure to comply with such recommendation shall have no material adverse effect on Landlord other
than an increase in Landlord’s insurance premiums (which increase Tenant agrees to pay), Tenant
shall not be required to comply with such recommendation.



     Section 9.3 Limitations on Rent. If, at any time during the Term, the Rent is not
fully collectible by reason of any Requirement in the nature of rent control which limits
Landlord’s right to collect the Rent provided herein, Tenant shall take such other steps as
Landlord may request, and as may be legally permissible, to permit Landlord to collect the maximum
rents which may during the continuance of such restriction be legally permissible (but



38









 







not in excess of the Rent reserved under this Lease). Upon the termination of such restriction
during the Term, Tenant shall pay to Landlord, in addition to the Rent for the period following
such termination, if legally permissible, the portion of Rent which would have been paid pursuant
to this Lease but for such legal restriction, less the Rent paid by Tenant to Landlord while such
restriction was in effect, together with interest thereon at the Base Rate.



ARTICLE 10




QUIET ENJOYMENT




     Provided this Lease is in full force and effect, Tenant may peaceably and quietly enjoy the
Premises without hindrance by Landlord or any Person lawfully claiming through or under Landlord,
subject to the terms and conditions of this Lease.



ARTICLE 11




SUBORDINATION




     Section 11.1 Subordination and Attornment. (a) Subject to Section 11.5 hereof, this
Lease and Tenant’s rights hereunder are subject and subordinate to all Mortgages and Superior
Leases. At the request of any Mortgagee or Lessor, Tenant shall attorn to such Mortgagee or Lessor,
its successors in interest or any purchaser in a foreclosure sale at such time as any such party
succeeds to Landlord’s interest hereunder as Landlord. Landlord represents and warrants to Tenant
that, as of the Execution Date, there are no Superior Leases, Mortgages or Condominium Declarations
(as hereinafter defined) affecting the Premises.



     (b) If a Lessor or Mortgagee or any other Person shall succeed to the rights of Landlord under
this Lease, whether through possession or foreclosure action, or the delivery of a new lease or
deed, then at the request of the successor landlord and upon such successor landlord’s written
agreement to accept Tenant’s attornment and to recognize Tenant’s interest



39









 







under this Lease, Tenant shall be deemed to have attorned to and recognized such successor
landlord as Landlord under this Lease. The provisions of this Article 11 are self-operative
and require no further instruments to give effect hereto; provided, however, that Tenant shall
promptly execute and deliver any instrument that such successor landlord may reasonably request
(1) evidencing such attornment, (2) setting forth the terms and conditions of Tenant’s tenancy, and
(3) containing such other terms and conditions as may be required by such Mortgagee or Lessor,
provided such terms and conditions do not increase the Rent, increase (by more than a de minimis
extent) Tenant’s non-Rent obligations or adversely affect Tenant’s rights under this Lease (by more
than a de minimis extent). Upon such attornment, this Lease shall continue in full force and effect
as a direct lease between such successor landlord and Tenant upon all of the terms, conditions and
covenants set forth in this Lease except that such successor landlord shall not be:




     (i) liable for any act or omission of Landlord (except to the extent such act or
omission continues beyond the date when such successor landlord succeeds to Landlord’s
interest and Tenant gives notice of such act or omission);




     (ii) subject to any defense, claim, counterclaim, set-off or offset which Tenant may
have against Landlord; provided that nothing contained herein shall be deemed to impair any
right of Tenant to a continuing abatement pursuant to Article 14 in connection with a prior
casualty;




     (iii) bound by any prepayment of more than one month’s Rent to any prior landlord
except for Additional Rent on account of Taxes or, if applicable, Tenant’s Retail Operating
Expense Payment, which are paid in accordance with this Lease for a period covering more
than one month;



40









 






     (iv) bound by any obligation to make any payment to Tenant which was required to be
made prior to the time such successor landlord succeeded to Landlord’s interest;




     (v) bound by any obligation to perform any work or to make improvements to the Premises
except for (A) repairs and maintenance required to be made by the Landlord under this Lease,
and (B) repairs to the Premises as a result of damage by fire or other casualty, or partial
condemnation, pursuant to the provisions of this Lease, but only to the extent that such
repairs can reasonably be made from the net proceeds of any insurance or condemnation awards
actually made available to such successor landlord; or




     (vi) bound by any modification, amendment or renewal of this Lease made without the
consent of any Lessor or Mortgagee of which Tenant has been provided notice.



     (c) Any Mortgagee may elect that this Lease shall have priority over the Mortgage that it
holds and, upon notification to Tenant by such Mortgagee, this Lease shall be deemed to have
priority over such Mortgage, regardless of the date of this Lease. In connection with any financing
of the Real Property or the Center, or of the interest of the lessee under any Superior Lease,
Tenant shall consent to any reasonable modifications of this Lease requested by any lending
institution, provided such modifications do not increase the Rent, increase Tenant’s non-Rent
obligations other than to a de minimis extent or reduce or affect Tenant’s rights under this Lease
other than to a de minimis extent.



     Section 11.2 Termination by Tenant. As long as any Superior Lease or Mortgage shall
exist, Tenant shall not seek to terminate this Lease by reason of any act or



41









 







omission of Landlord (i) until Tenant shall have given notice of such act or omission to all
Lessors and/or Mortgagees (of which Tenant has received notice) and shall state in such notice in
BOLDFACE TYPE that within 45 days of receipt thereof, such Lessor or Mortgagee must provide Tenant
a notice of its intention to seek to cure such default to preserve such Lessor’s or such
Mortgagee’s rights under this Section 11.2, and (ii) provided such Lessor and/or Mortgagee
shall, within 45 days of receipt of Tenant’s notice, notify Tenant of its intention to seek to cure
such default, until a reasonable period of time shall have elapsed following the giving of notice
of such default and the expiration of any applicable notice or grace periods (unless such act or
omission is not capable of being remedied within a reasonable period of time) during which period
such Lessors and/or Mortgagees shall have the right, but not the obligation, to remedy such act or
omission. If any Lessor or Mortgagee elects to remedy such act or omission of Landlord, Tenant
shall not seek to terminate this Lease so long as such Lessor or Mortgagee is proceeding with
reasonable diligence to effect such remedy.



     Section 11.3 Future Condominium Declaration. This Lease and Tenant’s rights hereunder
will be subject and subordinate to any condominium declaration, by-laws and other instruments
(collectively, the “Condominium Declaration”) which may hereafter be recorded in order to
subject the Buildings to a condominium form of ownership pursuant to Article 9-B of the New York
Real Property Law or any successor statute, provided that the Condominium Declaration does not by
its terms increase the Rent, increase Tenant’s non-Rent obligations other than to a de minimis
extent or reduce Tenant’s rights or Landlord’s obligations under this Lease other than to a de
minimis extent. At Landlord’s request, and subject to the foregoing proviso, Tenant will execute
and deliver to Landlord an amendment of this Lease confirming such subordination and modifying this
Lease to conform to such condominium regime, but no such amendment shall be necessary in order to
make such subordination effective.



42









 





     Section 11.4 Applicability. The provisions of this Article shall (i) inure to the
benefit of Landlord, any future owner of the Real Property, any Lessor or Mortgagee and any
sublessor thereof, and (ii) apply notwithstanding that, as a matter of law, this Lease may
terminate upon the termination of any Superior Lease or the foreclosure of any Mortgage.



     Section 11.5 Non-Disturbance Agreements. As a condition to Tenant’s agreement
hereunder to subordinate Tenant’s interest in this Lease to any Mortgage and any Superior Lease,
Landlord shall obtain from each Mortgagee or Lessor an agreement, in recordable form in the
standard form customarily employed by such Mortgagee or Lessor (modified as reasonably required to
provide Tenant with the protections provided for in this Section 11.5 and provided that nothing
contained therein shall be inconsistent in any material respect with the terms of this Lease),
pursuant to which such Mortgagee or Lessor shall agree that if and so long as no Event of Default
hereunder shall have occurred and be continuing, the leasehold estate granted to Tenant and all of
the rights of Tenant pursuant to this Lease shall not be terminated, modified, affected or
disturbed by any action which such Mortgagee may take to foreclose any Mortgage, or which such
Lessor shall take to terminate such Superior Lease, as applicable, and that any successor landlord
shall recognize this Lease as being in full force and effect as if it were a direct lease between
such successor landlord and Tenant upon all of the terms, covenants, conditions and options granted
to Tenant under this Lease, except as otherwise provided in Section 11.1(b) hereof (any
such agreement, a “Non-Disturbance Agreement”). If (i) Landlord shall tender a
Non-Disturbance Agreement to Tenant for execution accompanied by a notice referring to this
Section 11.5 and stating that Tenant is required to execute and deliver same within ten
(10) Business Days after such tender, and Tenant shall fail or refuse to execute and deliver same
within said ten (10) Business Days, after such tender, (ii) following the expiration of such ten
(10) Business Day period, Landlord delivers to Tenant a notice setting forth such failure or
refusal, and (iii) Tenant’s failure or refusal shall continue for a



43









 







period of five (5) Business Days after Tenant’s receipt of the notice described in clause (ii)
above, then Landlord shall have no further obligation pursuant to this Section 11.5 with
respect to the Mortgagee or Superior Lessor which is the other party thereto, all of Landlord’s
obligations being deemed satisfied and this Lease and all rights of Tenant hereunder shall remain
subject and subordinate to the applicable Superior Lease or Mortgage without the need to deliver to
Tenant a Non-Disturbance Agreement, and no further instrument of subordination shall be required.



ARTICLE 12




SERVICES




     Section 12.1 Ancillary Space Services. Landlord shall provide no services to the
Ancillary Space except as expressly stated in this Section 12.1.



     (a) Elevators. Landlord shall make available to Tenant at least one freight elevator
serving the 1270 Space, the 50 Rock Space and the storage portion of Retail Space #1 upon Tenant’s
prior request, on a non-exclusive “first come, first serve” basis with other tenants of 1270 Avenue
of the Americas and/or 50 Rockefeller Plaza, on all Business Days from 8:00 a.m. to 12:00 noon, and
from 1:00 p.m. to 5:00 p.m. If Tenant shall require freight elevator service at any other times
(“Overtime Periods”), Tenant must deliver notice (which may be delivered via facsimile if
Landlord generally permits tenants in the Center to notify Landlord of the need for overtime
services using this notice method) to Landlord’s property management office serving 1270 Avenue of
the Americas and/or 50 Rockefeller Plaza, requesting such freight elevator service at least
24 hours prior to the time at which such service is to be provided, but Landlord shall use
reasonable efforts (without obligation to incur any additional cost) to arrange for freight
elevator service during Overtime Periods on such shorter notice as Tenant shall provide. Tenant
shall pay to Landlord Landlord’s then established rates for supplying freight



44









 







elevator service during Overtime Periods which shall be the rate charged generally to tenants
at 1270 Avenue of the Americas and/or 50 Rockefeller Plaza. In the event that Tenant desires to
provide an entrance to the Club (as defined in Article 40) through the lobby at 1270 Avenue
of the Americas, Landlord and Tenant shall cooperate with one another to reach agreement on
satisfactory arrangements which address to Landlord’s reasonable satisfaction Landlord’s security
and operational concerns regarding such usage by Tenant; provided that Landlord prohibiting any
such usage during Business Hours shall conclusively be deemed to be reasonable and provided further
that all expenses in connection with such usage of the lobby at 1270 Avenue of the Americas shall
be borne by Tenant. Landlord shall be under no obligation to provide passenger elevator service to
any Ancillary Space except to the extent Landlord may agree to do so with respect to the 1270 Space
in connection with the usage of the lobby at 1270 Avenue of the Americas as an entrance to the Club
as above provided.



     (b) Ancillary Space Chilled Water. Landlord and Tenant shall furnish chilled water
for the operation of 1270 Avenue of the Americas, to a location designated by Landlord and
otherwise in accordance with the specifications set forth in Exhibit D-1 annexed hereto.
Landlord shall furnish chilled water to the 1270 Space, Retail Space #1 and the 50 Rock Space in
accordance with Exhibit D-2 annexed hereto.



     (c) Cleaning. Tenant shall, at its expense, cause the Ancillary Space to be cleaned
and exterminated substantially in accordance with the specifications set forth in
Exhibit E. The cleaning of the Ancillary Space may be done by Tenant’s employees. If Tenant
shall seek to clean all or any portion of the Ancillary Space other than by its own employees and
Tenant shall receive a bona fide, firm bid for performing such cleaning services from a reputable
cleaning contractor and if Landlord’s designated contractor shall be comparable in competence,
Landlord’s designated contractor shall within thirty (30) days thereafter have the right to match



45









 







the bid of Tenant’s proposed contractor. If Landlord’s designated contractor shall match such
bid, then Tenant shall award the contract for such cleaning services to Landlord’s designated
contractor. If Landlord’s designated contractor shall not match such bid, Landlord shall not
unreasonably withhold or delay its consent to Tenant’s use of its proposed contractor to provide
such cleaning services. Any contract entered into by Tenant shall be for a period of no more than
one year at which time Landlord’s designated cleaning contractor shall again be afforded an
opportunity to bid on such work and shall be awarded such work if it is prepared to match the bid
of the cleaning contractor then being utilized by Tenant and can demonstrate its competence to
perform such cleaning services to Tenant’s reasonable satisfaction.



     (d) Water and Steam. Landlord shall provide to the Ancillary Space hot and cold water
for drinking, cleaning and lavatory purposes and, as to the kitchen area of the 1270 Space, only
cold water. Landlord shall install a meter to measure the water and steam furnished to the
1270 Space and the Retail Space. Tenant shall pay the reasonable third party, out of pocket cost of
such installation actually incurred by Landlord, and for all maintenance, repairs and replacements
thereto. Tenant shall also pay 103% of Landlord’s actual costs for providing such water or steam as
measured by such meters and for any required pumping or heating thereof plus reasonable
out-of-pocket, third party costs actually incurred by Landlord, and any sewer rent, taxes
(including utility and sales taxes) and/or charge now or hereafter assessed or imposed upon the
1270 Space, the Retail Space or 1270 Avenue of the Americas (and equitably allocated to the
1270 Space or the Retail Space) pursuant to any Requirement. Such charges shall be payable within
thirty (30) days after being billed therefor. Tenant shall not be charged for water for the
purposes herein specified which is furnished to the 50 Rock Space.



     (e) Gas. Landlord shall make available to Tenant a portion of the pipe gallery shaft
designated by Landlord for Tenant to install the meter furnished by the utility



46









 







supplying gas to the Ancillary Space. Tenant shall be directly metered for all gas required by
the 1270 Space and the 50 Rock Space and Tenant shall pay for all maintenance, repairs and
replacements of such meters. Tenant shall also pay any rent, tax and/or charge now or hereafter
assessed or imposed upon Landlord or Tenant with respect to such gas usage.



     (f) Refuse and Rubbish Removal. Tenant shall provide all refuse and rubbish removal
services with respect to the Ancillary Space pursuant to regulations reasonably established by
Landlord. With respect to the 1270 Space and Retail Space #1, Tenant shall remove the refuse and
rubbish via the freight elevators servicing 1270 Avenue of the Americas to an area of Landlord’s
main loading dock designated for Tenant after 6:00 p.m. and before 6:00 a.m. and Tenant shall pay
Landlord’s customary charges for overtime freight elevator service then being charged generally to
tenants of 1270 Avenue of the Americas. Tenant shall cause all Tenant Parties to observe such
additional rules and regulations regarding rubbish removal and/or recycling as Landlord may, from
time to time, reasonably impose.



     (g) Life Safety. Tenant, at its expense, shall connect the life safety systems
serving the Ancillary Space to the life safety Building System in the applicable Ancillary
Building.



     (h) Additional Ancillary Building Services. The Rent does not reflect or include any
charge to Tenant for the furnishing of any building services to the Ancillary Space other than to
the limited extent described in Section 12.1(b) above. If Landlord furnishes any other
building service to the Ancillary Space, Tenant shall pay to Landlord Landlord’s then established
rates for supplying such building services.



     (i) Connections to Utilities. Landlord shall, at Tenant’s expense, cooperate with
Tenant in facilitating the connections between the utilities providing water, steam and gas and the
risers serving the Ancillary Space.



47









 





     Section 12.2 Music Hall Services. (a) Water. Tenant shall be directly
metered by the City of New York for all water required by the Music Hall. Tenant shall pay for all
maintenance, repairs and replacement of such meters. Tenant shall also pay any sewer rent, tax
and/or charge now or hereafter assessed or imposed upon Landlord or Tenant with respect to such
water usage.



     (b) Refuse and Rubbish Removal. Tenant shall be responsible for removal of all refuse
and rubbish from the Music Hall and the 50 Rock Space. The refuse and rubbish shall be removed by
Tenant daily to a portion of Landlord’s main loading dock serving 50 Rockefeller Plaza via the
freight elevators serving 50 Rockefeller Plaza. Tenant shall pay Landlord’s customary charges for
overtime freight elevator service then being charged generally to tenants of 50 Rockefeller Plaza.
Tenant’s refuse and rubbish shall be promptly picked up by Landlord’s contractor nightly after
2:00 a.m. and prior to 6:00 a.m. and Tenant shall pay to Landlord (i) Landlord’s commercially
reasonable charges for the use of Landlord’s compactors, (ii) Landlord’s actual, third party,
out-of-pocket cost to remove such refuse and rubbish and (iii) any additional costs actually
incurred by Landlord for any cleaning, maintenance or repairs made to the common areas of
50 Rockefeller Plaza resulting from Tenant Parties’ removal of such refuse and rubbish from the
Music Hall to Landlord’s main loading dock serving 50 Rockefeller Plaza. Tenant shall cause all
Tenant Parties to observe such additional rules and regulations regarding rubbish removal and/or
recycling as Landlord may, from time to time, reasonably impose. If Landlord fails to cause its
contractor to remove refuse and rubbish from the loading dock in a reasonably timely manner such
that Tenant has no place to unload additional refuse and rubbish and Landlord fails to cure such
failure promptly upon being notified of same, Tenant may, at its expense, cause its own contractor
to remove such refuse and rubbish, subject to the provisions of this Lease relating to labor
harmony.



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     (c) Cleaning. Tenant shall, at its expense, cause the Music Hall to be cleaned at a
standard befitting a first class entertainment center located within the Center. The Music Hall may
be cleaned by Tenant’s employees. If Tenant shall seek to clean all or any portion of the Music
Hall other than by its own employees, Tenant shall obtain a bona fide, firm bid for performing such
cleaning services from a reputable cleaning contractor and if Landlord’s designated contractor
shall be comparable in competence, Landlord’s designated contractor shall within thirty (30) days
thereafter have the right to match the bid of Tenant’s proposed contractor, provided that within
such thirty (30) day period Landlord’s designated contractor can demonstrate its competence to
perform such cleaning to Tenant’s reasonable satisfaction. If Landlord’s designated contractor
shall match such bid and shall have demonstrated its competence to Tenant’s reasonable
satisfaction, then Tenant shall award the contract for such cleaning services to Landlord’s
designated contractor. If Landlord’s designated contractor shall not match such bid, Landlord shall
not unreasonably withhold or delay its consent to Tenant’s use of its proposed contractor to
provide such cleaning services. Any contract entered into by Tenant shall be for a period of no
more than one year at which time Landlord’s designated cleaning contractor shall again be afforded
an opportunity to bid on such work and shall be awarded such work if it is prepared to match the
bid of the cleaning contractor then being utilized by Tenant and can demonstrate its competence to
perform such cleaning to Tenant’s reasonable satisfaction.



     (d) Chilled Water. Chilled Water shall be provided to the Music Hall at such times
and subject to the terms and conditions set forth in Exhibit D-1 annexed hereto.



     Section 12.4 Service Interruptions. Landlord reserves the right to suspend any
building service when necessary, by reason of Unavoidable Delays, accidents or emergencies, or for
repairs, alterations or improvements which, in Landlord’s reasonable



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judgment, are necessary or appropriate, until such Unavoidable Delay, accident or emergency
shall cease or such repairs, alterations or improvements are completed, and Landlord shall not be
liable to Tenant for any interruption, curtailment or failure to supply services. Landlord shall
use reasonable efforts to restore such service, remedy such situation and minimize interference
with Tenant’s business, provided that Landlord shall have no obligation to employ contractors or
labor at overtime or other premium pay rates, or to incur any other overtime costs or additional
expenses whatsoever. The exercise of any such right or the occurrence of any such failure by
Landlord shall not (i) constitute an actual or constructive eviction, in whole or in part,
(ii) entitle Tenant to any compensation, abatement or diminution of Rent, (iii) relieve Tenant from
any of its obligations under this Lease, or (iv) impose any liability upon Landlord by reason of
inconvenience to Tenant, or interruption of Tenant’s business, or otherwise.



     Section 12.5 Rent Abatement. Notwithstanding anything to the contrary contained in
Section 12.4 above or elsewhere in this Lease, provided no Event of Default shall have
occurred and be continuing, in the event that Tenant is unable to use all of the 1270 Space, all of
the 50 Rock Space or all of the Retail Space (each, an “Affected Space”), for the conduct
of Tenant’s business due solely to the failure of an Essential Service (as defined below) and
(a) after Tenant furnishes a notice to Landlord (the “Abatement Notice”) stating that
Tenant’s inability to use the Premises is solely due to such condition and such condition continues
for a period in excess of (x) 10 consecutive days if the failure to provide such Essential Service
results from a circumstance within Landlord’s control or (y) 20 consecutive days if the failure to
provide such Essential Service results from an Unavoidable Delay, (b) Tenant does not actually use
or occupy the entire Affected Space during such period and (c) such condition has not resulted from
the negligence or willful misconduct of Tenant or any Tenant Party, then Fixed Rent, the Retail
Operating Expense Payment and Tenant’s Tax Payment shall be abated on a per diem basis with respect
to the Affected Space (but not as to



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the balance of the Premises) for the period commencing on the 11th day (or the
21st day, as applicable) after Tenant furnishes the Abatement Notice, and ending on the
earlier of (i) the date Tenant occupies any material portion of the Affected Space which is the
subject of such abatement for the ordinary conduct of its business or (ii) the date on which such
condition is substantially remedied. An “Essential Service” shall mean only, with respect
to each Affected Space, (i) the provision of electricity pursuant to Section 17.1, (ii) the
provision of water and steam (when seasonably required) in accordance with the terms set forth in
Section 12.1(d), and (iii) Landlord’s failure to provide chilled water during the time
periods provided in, and in accordance with the provisions of, Exhibit D-1 and
Exhibit D-2 annexed hereto. Notwithstanding the foregoing, if Landlord shall fail to
provide chilled water to the Affected Space or the Music Hall and such chilled water can be
provided by Tenant by operation of Tenant’s Refrigeration Plant, then in lieu of any abatement
pursuant to this Section 12.5, from and after the 10th day of such failure (or the
20th day of such failure, if such failure was due to an Unavoidable Delay), Landlord
shall pay to Tenant an amount equal to the actual cost incurred by Tenant to operate its
Refrigeration Plant which Tenant would not have otherwise incurred but for Landlord’s failure to
provide said chilled water as an Essential Service. Tenant shall provide Landlord with reasonable
supporting documentation of such costs incurred and Landlord shall pay Tenant the amounts due to
Tenant hereunder within thirty (30) days of receiving such documentation.



ARTICLE 13




INSURANCE; PROPERTY LOSS OR DAMAGE; REIMBURSEMENT




     Section 13.1 Tenant’s Insurance. (a) Tenant, at its expense, shall obtain and keep
in full force and effect during the Term:



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     (i) a policy of commercial general liability insurance on an occurrence basis against
claims for personal injury, death and/or property damage occurring in or about the Premises,
under which Tenant is named as the insured and Landlord, Landlord’s managing agent, any
Lessors, any Mortgagees and any other parties whose names shall have been furnished by
Landlord to Tenant from time to time are named as additional insureds, which insurance shall
provide primary coverage without contribution from any other insurance carried by or for the
benefit of Landlord, Landlord’s managing agent or any Lessors or Mortgagees named as
additional insureds, and Tenant agrees to obtain blanket broad-form contractual liability
coverage to insure its indemnity obligations set forth in Article 32 hereof. The
minimum limits of liability shall be a combined single limit with respect to each occurrence
in an amount of not less than *****; provided, however, that Landlord may require Tenant to
increase such coverage, from time to time, to that amount of insurance which in Landlord’s
reasonable judgment is then being customarily required by landlords in first-class buildings
in the City of New York with respect to the Ancillary Space and for comparable entertainment
centers in the City of New York with respect to the Music Hall. If the aggregate limit
applying to the Premises is reduced by the payment of a claim or establishment of a reserve
equal to or greater than 50% of the annual aggregate, Tenant shall immediately arrange to
have the aggregate limit restored by endorsement to the existing policy or the purchase of
an additional insurance policy unless, in Landlord’s reasonable judgment, Tenant maintains
sufficient excess liability insurance to satisfy the liability requirements of this Lease
without the reinstatement of the aggregate limit;




     (ii) insurance against loss or damage by fire, and such other risks and hazards as are
insurable under then available standard forms of “all risk” property insurance policies with
extended coverage, having a deductible amount, if any, as



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reasonably approved by Landlord, insuring (A) with respect to the Ancillary Space, all
Ancillary Space Alterations and improvements to the Ancillary Space, for the full insurable
value thereof or replacement cost value thereof, (B) all of Tenant’s Property and
(C) Landlord’s Studio Apartment Property; all such insurance shall name Tenant as the
insured and, except with respect to Tenant’s insurance covering Tenant’s Property and
Landlord’s Studio Apartment Property, Landlord and any Lessors and any Mortgagees whose
names shall have been furnished by Landlord to Tenant from time to time shall be named as
additional insureds and loss payees;




     (iii) during the performance of any Alteration, until completion thereof, Builder’s
risk insurance on an “all risk” basis and on a completed value form including a Permission
to Complete and Occupy endorsement, for full replacement value covering the interest of
Landlord and Tenant (and their respective contractors and subcontractors), any Mortgagee and
any Lessor in all work incorporated in the Buildings and all materials and equipment in or
about the Premises;




     (iv) Workers’ Compensation Insurance, as required by law;




     (v) Liquor Liability (dram shop) Insurance with a minimum limit of liability in an
amount of not less than $1,000,000 on an occurrence basis, covering bodily injury and death
to one or more persons and $100,000 in connection with property damage; and




     (vi) such other insurance in such amounts as Landlord, any Mortgagee and/or any Lessor
may reasonably require from time to time for premises comparable to the Premises.



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     (b) All insurance required to be carried by Tenant pursuant to the terms of this Lease
(i) shall contain a provision that (A) no act or omission of Tenant shall affect or limit the
obligation of the insurance company to pay the amount of any loss sustained, (B) the policy shall
be noncancellable and/or no material change in coverage shall be made thereto unless Landlord,
Lessors and Mortgagees shall have received 30 days’ prior notice of the same by certified mail,
return receipt requested, and (C) Tenant shall be solely responsible for the payment of all
premiums under such policies and Landlord, Lessors and Mortgagees shall have no obligation for the
payment thereof, and (ii) shall be effected under valid and enforceable policies issued by
reputable and independent insurers permitted to do business in the State of New York, and rated in
Best’s Insurance Guide, or any successor thereto (or if there be none, an organization having a
national reputation) as having a Best’s Rating of “A-” and a “Financial Size Category” of at least
“IX” or if such ratings are not then in effect, the equivalent thereof or such other financial
rating as Landlord may at any time consider appropriate.



     (c) On or prior to the Commencement Date, Tenant shall deliver to Landlord appropriate
policies of insurance (each, a “Policy”), including evidence of waivers of subrogation,
required to be carried by each party pursuant to this Article (the “Policy”). Evidence of
each renewal or replacement of a Policy shall be delivered by Tenant to Landlord at least 10 days
prior to the expiration of such Policy. The renewal or replacement of such Policy shall (i) convey
to Landlord and any other named insured and/or additional insureds thereunder (the “Insured
Parties”) all the rights and privileges afforded under the Policy as primary insurance, and
(ii) contains an unconditional obligation of the insurance company to advise all Insured Parties in
writing by certified mail, return receipt requested, at least 30 days in advance of any termination
of or change to the Policy that would affect the interest of any of the Insured Parties.



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     (d) All insurance required to be maintained by Tenant hereunder may be effected pursuant to
blanket policies covering other locations. provided that such blanket policies provide that the
amount of insurance allocable to the Premises shall at all times not be less than the amounts set
forth above and that such amounts will not be reduced by any loss at any other location, and shall
comply with the provisions of this Section 13.1.



     Section 13.2 Landlord’s Insurance Obligation. Landlord shall obtain and keep in full
force and effect insurance against loss or damage by fire and other casualty to the Buildings and
the improvements and betterments in the Buildings, including all Music Hall Alterations and
Landlord’s Music Hall Property as may be insurable under then available standard forms of
“all-risk” insurance policies, in an amount equal to one hundred percent (100%) of the replacement
value thereof (with customary deductibles) or in such lesser amount as will avoid co-insurance.
Notwithstanding the foregoing, Landlord shall not be liable to Tenant for any failure to insure,
replace or restore any Music Hall Alterations which Landlord would otherwise be obligated to
restore hereunder unless, if Landlord has notified Tenant that Landlord’s insurer requires Tenant
to do any of the following, Tenant shall have delivered to Landlord plans and specifications of
such Alterations to the extent required pursuant to Article 5 hereof or otherwise notified Landlord
in reasonable detail of such Alterations, and shall maintain adequate records with respect to such
Alterations to facilitate the adjustment of any insurance claims with respect thereto. Tenant shall
reasonably cooperate with Landlord and Landlord’s insurance companies in the adjustment of any
claims for any damage to any of the Buildings or such Alterations. All insurance required to be
maintained by Landlord hereunder may be effected pursuant to blanket policies covering other
locations, provided that such blanket policies (i) provide the amounts set forth above and that
such amounts will not be reduced by any loss at any other location, and (ii) shall comply with the
provisions of this Section 13.2. Notwithstanding anything herein contained to the contrary,
in no event shall Landlord carry



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separate or additional insurance, concurrent in form or contributing in the event of any loss
or damage, with any insurance required to be maintained by Tenant with respect to Tenant’s
Property.



     Section 13.3 Waiver of Subrogation. Landlord and Tenant shall each procure an
appropriate clause in or endorsement to any property insurance covering the Premises, the Buildings
and personal property, fixtures and equipment located therein, wherein the insurance companies
shall waive subrogation or consent to a waiver of right of recovery, and Landlord and Tenant agree
not to make any claim against, or seek to recover from, the other for any loss or damage to its
property or the property of others resulting from fire and other hazards to the extent covered by
such property insurance; provided, however, that the release, discharge, exoneration and covenant
not to sue contained herein shall be limited by and coextensive with the terms and provisions of
the waiver of subrogation or waiver of right of recovery. If the payment of an additional premium
is required for the inclusion of, or consent to, a waiver of subrogation, each party shall advise
the other, in writing, of the amount of any such additional premiums and the other party may pay
such additional premium. If such other party shall not elect to pay such additional premium, then
the first party shall not be required to obtain such waiver of subrogation or consent to waiver. If
a waiver of subrogation is unobtainable, Landlord and Tenant shall each seek to have its respective
insurance carrier name the other party as an additional insured on its property insurance policies,
but not a loss payee. If the carrier in question shall agree to do so but only upon the payment of
any additional premium, each party shall advise the other in writing of the amount of such
additional premium and the other party may pay such additional premium. If the other party shall
not elect to pay such additional premium, then the first party shall not be required to name the
other party as an additional insured on its property policy. Tenant acknowledges that Landlord
shall not carry insurance on,



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and shall not be responsible for, any loss suffered by Tenant due to interruption of Tenant’s
business.



ARTICLE 14




DESTRUCTION–FIRE OR OTHER CAUSE




     Section 14.1 Restoration. (a) If the Ancillary Space is damaged by fire or other
casualty, or if either of the Ancillary Buildings is damaged such that Tenant is deprived of
reasonable access to or the ability to use the Ancillary Space, Tenant shall give prompt notice to
Landlord, and the core and shell of the Ancillary Building(s) or such access shall be repaired by
Landlord, at its expense, to substantially the condition of the core and shell of the Ancillary
Building(s) or such access prior to such damage, subject to the provisions of any Mortgage or
Superior Lease, but Landlord shall have no obligation to repair or restore Tenant’s Property or any
Ancillary Space Alterations or other improvements to the Ancillary Space, all of which shall be
restored by Tenant at its expense. So long as no Event of Default shall have occurred and be
continuing, then until such time as Landlord shall substantially complete the core and shell work
on the Ancillary Building or Buildings which are the subject of such fire or other casualty plus
such additional time as may be reasonably required by Tenant to restore the Ancillary Space
Alterations that were damaged by such fire or other casualty Fixed Rent, Tenant’s Tax Payment and,
if the Retail Space is affected, Tenant’s Retail Operating Expense Payment, shall be abated with
respect to such portion of the Ancillary Space as was damaged by such fire or other casualty;
provided, however, that in all events such abatement shall terminate when Tenant reoccupies the
portion of the Ancillary Space damaged by such fire or casualty for the conduct of its business. To
the extent of any Tenant Delay in restoring Ancillary Space Alterations, Tenant’s rent abatement
with respect to such portion of the Ancillary Space shall be reduced by one day for each such day
of Tenant Delay.



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     (b) If the Music Hall is damaged by fire or other casualty, Tenant shall give prompt notice to
Landlord, and Landlord, at its expense, shall, subject to Section 14.2, rebuild the same to
substantially its condition prior to the damage to the extent commercially practicable given the
unique and landmark nature of the Music Hall, subject to the provisions of any Mortgage or Superior
Lease, but Landlord shall have no obligation to repair or restore Tenant’s Property and, at
Landlord’s request, Tenant shall, at its expense, promptly remove Tenant’s Property from the Music
Hall in order to facilitate the completion of Landlord’s restoration work. To the extent that
restoration of the Music Hall to substantially its condition prior to the damage is impracticable,
Landlord shall consult with Tenant regarding the Music Hall restoration plans for the purpose of
assuring that such restoration is in keeping with the quality and character of the Music Hall as it
exists on the Execution Date, subject to commercial practicability. So long as no Event of Default
shall have occurred and is continuing, then until such time as the restoration of the Music Hall
has been substantially completed, Tenant’s Fixed Rent and Tenant’s Tax Payment shall be abated;
provided, however, that to the extent restoration of the Music Hall is delayed by reason of a
Tenant Delay, Tenant’s rent abatement hereunder shall be reduced by one day for each such day of
Tenant Delay.



     Section 14.2 Mutual Termination Right. Notwithstanding anything to the contrary
contained in Section 14.1, if the Music Hall, the 1270 Space, the 50 Rock Space or the
Retail Space is substantially damaged or is rendered wholly or substantially untenantable and an
independent architect or engineer selected by Landlord shall determine, as evidenced by a written
opinion which Landlord agrees shall be delivered to Tenant within 90 days after such damage (the
“Restoration Opinion”), that the restoration of any of the same to substantially its
condition prior to such damage shall require more than (a) with respect to the Music Hall,
36 months and (b) with respect to the Ancillary Space, 18 months, to complete (including the time
necessary to obtain all necessary approvals from the Commission, Landlord hereby



58









 







agreeing to diligently pursue the receipt of any such approvals and Tenant agreeing to
cooperate in all reasonable respects in connection with such pursuit), Landlord or Tenant may, not
later than 30 days following the date of receipt of the Restoration Opinion, (i) with respect to
the 1270 Space, the 50 Rock Space or the Retail Space, give the other party a notice terminating
the Lease with respect to the 1270 Space, the 50 Rock Space or the Retail Space, whichever of such
space is substantially damaged or (ii) with respect to the Music Hall, give the other party a
notice terminating the Lease. If this Lease (or any portion thereof) is terminated pursuant to this
Section 14.2 or Section 14.3, (i) the Term (insofar as it relates to the portion of
the Premises as to which the Lease is being terminated) shall expire upon the date set forth in the
applicable notice of termination, which shall not be less than 30 days after such notice is given,
and Tenant shall vacate the Premises (or the applicable portion thereof) and surrender the same to
Landlord no later than the date set forth in the notice, (ii) Tenant’s liability for Rent with
respect to the applicable portion of the Premises shall cease as of the date of the damage,
(iii) any prepaid Rent with respect to the applicable portion of the Premises for any period after
the date of the damage shall be refunded by Landlord to Tenant and (iv) an appropriate final
reconciliation shall be made of Percentage Rent for the Computation Year in which such termination
occurred within 30 days following such termination. Notwithstanding the foregoing, Landlord shall
not exercise the termination right set forth in this Section 14.2 if, as part of Landlord’s
restoration of the Music Hall, Landlord shall intend to build a structure which is designed to
house a concert hall.



     Section 14.3 Intentionally Omitted.



     Section 14.4 Final 24 Months. Notwithstanding anything set forth to the contrary in
this Article, in the event that any substantial damage rendering a portion of the Premises located
in any Building wholly untenantable occurs during the final 24 months of the



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Term, either Landlord or Tenant may terminate this Lease as to such portion, or if such damage
occurs to the Music Hall, then as to the whole of the Premises by notice to the other party within
30 days after the occurrence of such damage and this Lease shall expire on the 30th day after the
date of such notice. For purposes of this Section 14.4, the Premises located in any
Building shall be deemed wholly untenantable if due to such damage, Tenant shall be precluded from
using more than 50% of the Premises located in such Building for the conduct of its business and
Tenant’s inability to so use the Premises is reasonably expected to continue until at least the
earlier of (i) the Expiration Date, or (ii) the 90th day after the date when such damage occurs.



     Section 14.5 Waiver of Real Property Law § 227. This Article constitutes an express
agreement governing any case of damage or destruction of the Premises or the Buildings by fire or
other casualty, and Section 227 of the Real Property Law of the State of New York, which provides
for such contingency in the absence of an express agreement, and any other law of like nature and
purpose now or hereafter in force, shall have no application in any such case.



     Section 14.6 Inability to Collect. Subject to Section 13.3, if Landlord or
any Lessor or Mortgagee shall be unable to collect all of the insurance proceeds (including rent
insurance proceeds) applicable to damage or destruction of the Premises or the Buildings by reason
of any action or inaction on the part of Tenant or any Tenant Party (other than Tenant invitees),
then, without prejudice to any other remedies which may be available against Tenant, (i) there
shall be no abatement of Rent, (ii) Landlord shall have no obligation to restore the Premises (or
any portion thereof) to any extent greater than that permitted by expending the portion of
insurance proceeds which Landlord is able to collect and (iii) Tenant shall have none of the
termination rights set forth in this Article.



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     Section 14.7 Landlord’s Liability. Any Buildings’ employee to whom any property shall
be entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant’s agent with respect
to such property and neither Landlord nor any of the Indemnitees shall be liable for any damage to
such property, or for the loss of or damage to any property of Tenant by theft or otherwise. None
of the Indemnitees shall be liable for any injury or damage to persons or property or interruption
of Tenant’s business resulting from fire or other casualty, any damage caused by other tenants or
persons in the Buildings or by construction of any private, public or quasi-public work, or any
latent defect in the Premises or in the Buildings (except that Landlord shall be required to repair
the same to the extent provided in Article 7). No penalty shall accrue for delays which may
arise by reason of adjustment of fire insurance on the part of Landlord or Tenant, or Unavoidable
Delays, in connection with any repair or restoration of any portion of the Premises or of the
Buildings. Landlord shall use reasonable efforts to minimize interference with Tenant’s use and
occupancy of the Premises during the performance of any such repair or restoration; provided,
however, Landlord shall have no obligation to employ contractors or labor at overtime or other
premium pay rates or to incur any other overtime costs or additional expenses whatsoever. Nothing
in this Section 14.7 shall affect any right of Landlord to be indemnified by Tenant under
Article 32 for payments made to compensate for losses of third parties.



     Section 14.8 Windows. If at any time any windows of the Premises are temporarily
closed, darkened or covered over by reason of repairs, maintenance, alterations or improvements to
the Buildings, or any of such windows are permanently closed, darkened or covered over due to any
Requirement, Landlord shall not be liable for any damage Tenant may sustain and Tenant shall not be
entitled to any compensation or abatement of any Rent, nor shall the same release Tenant from its
obligations hereunder or constitute an actual or constructive eviction.



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ARTICLE 15




EMINENT DOMAIN




     Section 15.1 (a) Total Taking. If all or substantially all of the Premises, the
Buildings or the Real Property shall be acquired or condemned for any public or quasi-public
purpose, this Lease shall terminate and the Term shall end as of the date of the vesting of title,
with the same effect as if such date were the Expiration Date.



     (b) Partial Taking. If only a part of the Premises, the Buildings or the Real
Property shall be acquired or condemned, then except as provided in this Article 15, this
Lease and the Term shall continue in full force and effect, provided that from and after the date
of the vesting of title, Fixed Rent and Tenant’s Tax Payment shall be modified to reflect the
reduction of the Premises and/or the Buildings as a result of such acquisition or condemnation.



     (c) Landlord’s Termination Right. Whether or not the Premises are affected, Landlord
may give to Tenant, within 60 days following the date upon which Landlord receives notice that all
or a material portion of the Buildings or the Real Property has been acquired or condemned, a
notice of termination of this Lease insofar as it relates to the Building being affected, or if the
Building being affected is all or substantially all of the Music Hall, then as to all of the
Premises, provided that, with respect to the Ancillary Buildings, Landlord elects to terminate
leases (including this Lease) affecting at least 50% of the rentable area of the Ancillary
Buildings (excluding any rentable area leased by Landlord or its Affiliates) which are the subject
of the Landlord’s termination right. For purposes hereof, “material” shall mean 20% or more
of the rentable area of such Building or all reasonable means of access to such Building.



62









 





     (d) Tenant’s Termination Right. If the part of the Buildings or the Real Property so
acquired or condemned contains a substantial part of the total area of the portion of the Premises
located in such Building immediately prior to such acquisition or condemnation, or if, by reason of
such acquisition or condemnation, Tenant no longer has reasonable means of access to the Premises,
Tenant may terminate this Lease as to such portion of the Premises by notice to Landlord given
within 60 days following the date upon which Tenant received notice of such acquisition or
condemnation; provided, however, that if the portion of the Premises so affected shall be the Music
Hall, then Tenant’s right of termination shall apply to the whole of the Premises. Furthermore, if
by virtue of the nature of the space in the Music Hall which is acquired or condemned, the space
remaining in the Music Hall after giving effect to such acquisition or condemnation cannot
economically be used for its intended purpose, following the date upon which Tenant received notice
of such acquisition or condemnation, Tenant may terminate this Lease by notice to Landlord. If
Tenant so notifies Landlord, this Lease shall terminate and the Term shall end and expire upon the
date set forth in the notice as to the portion of the Premises covered thereby, which date shall
not be more than 30 days following the giving of such notice. If a part of the Premises shall be so
acquired or condemned and this Lease and the Term shall not be terminated in accordance with this
Section, Landlord, at Landlord’s expense but without requiring Landlord to spend more than it
collects as an award, shall, subject to the provisions of any Mortgage or Superior Lease, restore
such portion of the Premises not so acquired or condemned to a self-contained unit substantially
equivalent (with respect to character, quality, appearance and services) to that which existed
immediately prior to such acquisition or condemnation, to the extent commercially practicable to do
so, in which case Tenant shall be obligated to restore Tenant’s Property relating to such portion
of the Premises to the condition which existed immediately prior to such acquisition or
condemnation.



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     (e) Apportionment of Rent. Upon any termination of this Lease pursuant to the
provisions of this Article as to all or a portion of the Premises, Fixed Rent and Tenant’s payments
for Taxes shall be apportioned as of, and shall be paid or refunded up to and including, the date
of such termination.



     Section 15.2 Awards. Upon any acquisition or condemnation of all or any part of the
Buildings or the Real Property, Landlord shall receive the entire award for any such acquisition or
condemnation, and Tenant shall have no claim against Landlord or the condemning authority for the
value of any unexpired portion of the Term, Tenant’s Alterations or improvements; and Tenant hereby
assigns to Landlord all of its right in and to such award. Nothing contained in this Article shall
be deemed to prevent Tenant from making a separate claim in any condemnation proceedings for the
then value of any Tenant’s Property included in such taking and for any moving expenses, provided
any such award is in addition to, and does not result in a reduction of, the award made to
Landlord.



     Section 15.3 Temporary Taking. If all or any part of the Premises is acquired or
condemned for a period of 36 months or less during the Term for any public or quasi-public use or
purpose, Tenant shall give prompt notice to Landlord, and the Term shall not be reduced or affected
in any way, and Tenant shall continue to pay all Rent payable by Tenant without reduction or
abatement and to perform all its other obligations under this Lease, except to the extent prevented
from doing so by the condemning authority. Tenant shall be entitled to receive any award or payment
from the condemning authority for such use, which award shall be received, held and applied by
Tenant as a trust fund for payment of Rent falling due, provided that if the acquisition or
condemnation extends beyond the Term, Landlord shall receive the entire portion of such award
attributable to the period after the Term.



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ARTICLE 16




ASSIGNMENT AND SUBLETTING




     Section 16.1 (a) No Assignment or Subletting. Tenant shall not assign, mortgage,
pledge, encumber, or otherwise transfer this Lease, whether by operation of law or otherwise, and
shall not sublet (or underlet), or permit, or suffer the Premises or any part thereof to be used or
occupied by others (whether for desk space, mailing privileges or otherwise), without Landlord’s
prior consent in each instance (which consent shall be granted or denied in Landlord’s sole and
absolute discretion); provided, however, that the use of the Music Hall for its Permitted Use (i.e.
allowing various performances to take place in the Music Hall under the auspices of Tenant) and the
granting of subleases, licenses and concessions to persons occupying not more than 10% of the Music
Hall consistent with customary practice in the entertainment business shall not be deemed a
violation of this Section 16.1. Any assignment, sublease, mortgage, pledge, encumbrance or
transfer in contravention of the provisions of this Article shall be void.



     (b) Collection of Rent. If, without Landlord’s consent, this Lease is assigned, or any
part of the Premises is sublet or occupied by anyone other than Tenant, or this Lease or the
Premises or any of Tenant’s Property is encumbered (by operation of law or otherwise), Landlord may
collect rent from the assignee, subtenant or occupant and apply the net amount collected to the
Rent herein reserved. No such collection of rent shall be deemed to be (i) a waiver of the
provisions of this Article, (ii) an acceptance of the assignee, subtenant or occupant as tenant, or
(iii) a release of Tenant from the performance of any of the terms, covenants and conditions to be
performed by Tenant under this Lease, including the payment of Rent.



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     (c) No Waiver. Landlord’s consent to any assignment or subletting shall not relieve
Tenant from the obligation to obtain Landlord’s express consent to any further assignment or
subletting. In no event shall any permitted subtenant assign or encumber its sublease or further
sublet any portion of its sublet space, or otherwise suffer or permit any portion of the sublet
space to be used or occupied by others. The listing of any name other than that of Tenant in the
directory, or on the doors of the Premises or elsewhere, shall not vest in any such named party any
right or interest in this Lease or in the Premises, nor be deemed to constitute Landlord’s consent
to any assignment or transfer of this Lease, or to any sublease of the Premises, or to the use or
occupancy thereof by others.



     Section 16.2 Conditions to Assignment or Subletting. (a) Landlord shall either grant
or decline its consent to the proposed assignment or subletting within 30 days after Landlord’s
receipt of (1) a true and complete statement detailing the identity of the proposed assignee or
subtenant, the nature of its business and its proposed use of the Premises, (2) current financial
information with respect to the proposed assignee or subtenant including its most recent financial
statements and (3) any other information Landlord may reasonably request.



     (b) With respect to each and every assignment and/or subletting authorized by Landlord under
the provisions of this Lease, it is further agreed that:




     (i) the form of the proposed assignment or sublease shall be reasonably
satisfactory to Landlord and shall comply with the provisions of this Article;




     (ii) no sublease shall be for a term ending later than one day prior to the
Expiration Date of this Lease;



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     (iii) no sublease shall be delivered to any subtenant, and no subtenant shall
take possession of the Premises, until an executed counterpart of such sublease has
been delivered to Landlord and approved in writing by Landlord as provided in
Section 16.2(a);




     (iv) if a monetary Event of Default shall occur at any time prior to the
effective date of such assignment or subletting or a material, nonmonetary Event of
Default shall have occurred and, in either ease, Landlord shall have commenced a
summary proceeding or other legal proceeding against Tenant by reason thereof prior
to the effective date of such assignment, then Landlord’s consent thereto, if
previously granted, shall be immediately deemed revoked without further notice to
Tenant, and if such assignment or subletting would have been permitted without
Landlord’s consent pursuant to Section 16.5, such permission shall be void
and without force and effect, and in either such case, any such assignment or
subletting shall constitute a further Event of Default hereunder; and




     (v) each sublease shall be subject and subordinate to this lease and to the
matters to which this Lease is or shall be subordinate, it being the intention of
Landlord and Tenant that Tenant shall assume and be liable to Landlord for any and
all acts and omissions of all subtenants and anyone claiming under or through any
subtenants which, if performed or omitted by Tenant, would be a default under this
Lease; and Tenant and each subtenant shall be deemed to have agreed that upon
termination of the Lease, Tenant has hereby assigned to Landlord, and Landlord may,
at its option, accept such assignment of, all right, title and interest of Tenant as
sublandlord under such sublease, together with all



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modifications, extensions and renewals thereof then in effect, and such
subtenant shall, at Landlord’s option, attorn to Landlord pursuant to the then
executory provisions of such sublease, except that Landlord shall not be (A) liable
for any previous act or omission of Tenant under such sublease, (B) subject to any
counterclaim, offset or defense not expressly provided in such sublease, which
theretofore accrued to such subtenant against Tenant, (C) bound by any previous
modification of such sublease not consented to by Landlord, or by any prepayment of
more than one month’s rent and additional rent under such sublease, (D) bound to
return such subtenant’s security deposit, if any, except to the extent that Landlord
shall receive actual possession of such deposit and such subtenant shall be entitled
to the return of all or any portion of such deposit under the terms of its sublease,
or (E) obligated to make any payment to or on behalf of such subtenant, or to
perform any work in the subleased space or the Buildings, or in any way to prepare
the subleased space for occupancy, beyond Landlord’s obligations under this Lease.
The provisions of this Section 16.2(b)(v) shall be self-operative, and no
further instrument shall be required to give effect hereto, provided that the
subtenant shall execute and deliver to Landlord any instruments Landlord may
reasonably request to evidence and confirm such subordination and attornment.



     Section 16.3 No Release of Tenant; Indemnification of Landlord. Notwithstanding any
assignment or subletting or any acceptance of Rent by Landlord from any assignee or subtenant,
Tenant shall remain fully liable for the payment of all Rent due and for the performance of all
other terms, covenants and conditions contained in this Lease on Tenant’s part to be observed and
performed, and any default under any term, covenant or condition of this Lease by any subtenant
shall be deemed a default under this Lease by Tenant.



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Tenant shall indemnify, defend, protect and hold harmless Landlord from and against any and
all Losses (as defined in Section 32.1(b)) resulting from any claims that may be made
against Landlord by the proposed assignee or subtenant or by any brokers or other Persons claiming
a commission or similar compensation in connection with the proposed assignment or sublease,
irrespective of whether Landlord shall give or decline to give its consent to any proposed
assignment or sublease, or if Landlord shall exercise any of its options under this
Article 16; provided, that such indemnity shall not extend to post-assignment claims by any
proposed assignee or subtenant.




     Section 16.4 Tenant’s Failure to Complete. If Landlord consents to a proposed
assignment or sublease and Tenant fails to execute and deliver to Landlord such assignment or
sublease within 270 days after the giving of such consent, then Tenant shall again comply with all
of the provisions and conditions of Section 16.2 hereof before assigning this Lease or
subletting all or part of the Premises.



     Section 16.5 (a) Transfers. If Tenant is a corporation, the transfer by one or more
transfers, directly or indirectly, by operation of law or otherwise, of a majority of the stock of
Tenant shall be deemed a voluntary assignment of this Lease; provided, however, that the provisions
of this Article shall not apply to the transfer of shares of stock of Tenant if and so long as
Tenant is publicly traded on a nationally recognized stock exchange. For purposes of this Section
the term “transfers” shall be deemed to include the issuance of new stock or of treasury stock
which results in a majority of the stock of Tenant being held by a Person or Persons that do not
hold a majority of the stock of Tenant on the date hereof. If Tenant is a partnership, the transfer
by one or more transfers, directly or indirectly, by operation of law or otherwise, of a majority
interest in the partnership or otherwise in violation of Section 29.2 of this Lease, shall
be deemed a voluntary assignment of this Lease. If Tenant is a limited liability company, trust,



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or any other legal entity (including a corporation or partnership), the transfer by one or
more transfers, directly or indirectly, of Control of such entity, however characterized, shall be
deemed a voluntary assignment of this Lease. Notwithstanding the foregoing, the transfer of
interests in MSG (or any entity which is a successor to MSG in accordance with the provisions of
this Lease) by the owners of such interests shall not be deemed an assignment hereunder as long as
the ownership interests held by MSG (or any such successor entity) in Tenant do not constitute more
than 50% of the assets of MSG or any such successor entity. Following the
5th anniversary of the Rent Commencement Date, the provisions of Section 16.1
shall not apply to (A) transactions with an entity into or with which Tenant is merged or
consolidated or to which substantially all of Tenant’s assets are transferred or (B) a transfer of
the majority interest in Tenant (regardless of whether Tenant is a corporation, limited liability
company or partnership or other entity) (a “Transfer of Control”) so long as (i) such
transfer was made for a legitimate independent business purpose and not for the purpose of
transferring this Lease as opposed to the transfer of Tenant’s business, (ii) the successor to
Tenant or the transferee following such Transfer of Control, as applicable (either such successor
or transferee being hereinafter referred to as the “Successor Tenant”) has a net worth
computed in accordance with generally accepted accounting principles consistently applied (“Net
Worth”) of not less than ***** and a cash flow on an annualized basis computed in accordance
with generally accepted accounting principles consistently applied (“Cash Flow”) of not
less than *****. (iii) proof satisfactory to Landlord of such Net Worth and Cash Flow is delivered
to Landlord at least 10 days prior to the effective date of any such transaction and (iv) the
Successor Tenant shall have (1) a high quality reputation in the general business community and
upstanding character and (2) (A) a high quality reputation within the entertainment industry for
sound management and business practices and integrity and (B) at least 10 years of experience in
the operation of a live entertainment venue comparable to the Music Hall. If the Successor Tenant
shall fail to satisfy



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the requirements set forth in clause (iv) (2) above. then either an Affiliate of Successor
Tenant which satisfies such requirements shall be the manager of Tenant or, if no such Affiliate
shall exist, the Successor Tenant shall covenant and agree to retain the then existing management
of Tenant or replace the then existing management with a manager which satisfies the requirements
set forth in clause (iv) (2) above. Tenant may also, upon prior notice to and with the consent of
Landlord, which shall not be unreasonably withheld, permit any Person which Controls. is Controlled
by, or is under common Control with Tenant (a “Related Entity”) to sublet all (but not
part) of the Premises for any Permitted Use, provided the Related Entity is in Landlord’s
reasonable judgment of a character and engaged in a business which is in keeping with the standards
for the Buildings and the Center and the occupancy thereof. Such sublease shall not be deemed to
vest in any such Related Entity any right or interest in this Lease or the Premises nor shall it
relieve, release, impair or discharge any of Tenant’s obligations hereunder. Notwithstanding the
foregoing, Tenant shall have no right to assign this Lease or sublease all or any portion of the
Premises without Landlord’s consent pursuant to this Section 16.5 if Tenant is not the
original Tenant named in this Lease or a Person who acquired Tenant’s interest in this Lease in a
transaction approved by Landlord or permitted under this Section 16.5.



     (b) Applicability. The limitations set forth in this Section 16.5 shall apply
to subtenant(s) and assignee(s) of this Lease, if any, and any transfer by any such entity in
violation of this Section 16.5 shall be a transfer in violation of Section 16.1.



     (c) Modifications; Takeover Agreements. Any modification, amendment or extension of a
sublease and/or any other agreement by which a landlord of a building other than the Buildings
agrees to assume or perform the obligations of Tenant under this Lease shall be deemed a sublease
for the purposes of Section 16.1 hereof.



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     Section 16.6 Assumption of Obligations. Any assignment or transfer, whether made with
Landlord’s consent or without Landlord’s consent, if and to the extent permitted hereunder, shall
not be effective unless and until the assignee executes, acknowledges and delivers to Landlord
(i) an agreement in form and substance reasonably satisfactory to Landlord whereby the assignee
(A) assumes Tenant’s obligations under this Lease from after the date of such assignment, other
than (x) in the case of a sale of the assets of Tenant, in which event such assumption shall be
absolute or (y) in the case of a merger of Tenant, in which event the Successor Tenant shall
execute a confirmatory instrument in form reasonably satisfactory to Landlord confirming its
continuing liability as Tenant under this Lease or (z) in the case of a Transfer of Control of
Tenant, in which event the transferee, having the required Net Worth and Cash Flow, shall execute a
guaranty in substantially the same form as the Guaranty and which from and after the date of such
Transfer of Control shall be deemed the Guaranty for purposes of this Lease with respect to
obligations thereafter accruing and (B) agrees that, notwithstanding such assignment or transfer,
the provisions of Section 16.1 hereof shall be binding upon it in respect of all future
assignments and transfers, and (ii) certificates or policies of insurance as required under
Article 13.



     Section 16.7 Tenant’s Liability. The joint and several liability of Tenant and any
successors-in-interest of Tenant and the due performance of Tenant’s obligations under this Lease
shall not be discharged, released or impaired by any agreement or stipulation made by Landlord, or
any grantee or assignee of Landlord, extending the time, or modifying any of the terms and
provisions of this Lease, or by any waiver or failure of Landlord, or any grantee or assignee of
Landlord, to enforce any of the terms and provisions of this Lease; provided, however, that the
liability of Tenant or any such successors-in-interest to Tenant shall be limited to the
obligations set forth in this Lease as the same existed while such party was Tenant



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without regard to any subsequent modifications which increase the liability of Tenant under
this Lease.



     Section 16.8 Lease Not Affirmed or Rejected. If at any time after an assignment by
Tenant named herein, this Lease is not affirmed on or before confirmation of a plan of
reorganization or rejected in any proceeding of the types described in Section 19.1(h) or
(i) or any similar proceeding, or upon a termination of this Lease due to any such proceeding,
Tenant named herein, upon request of Landlord given within 30 days after such disaffirmance,
rejection or termination (and actual notice thereof to Landlord in the event of a disaffirmance or
rejection or in the event of termination other than by act of Landlord), shall (i) pay to Landlord
all Rent and other charges due and owing by the assignee to Landlord under this Lease to and
including the date of such disaffirmance, rejection or termination, and (ii) as “tenant,” enter
into a new lease of the Premises with Landlord for a term commencing on the effective date of such
disaffirmance, rejection or termination and ending on the Expiration Date, unless sooner terminated
in accordance therewith, at the same Rent and upon the then executory terms, covenants and
conditions contained in this Lease, except that (A) the rights of Tenant named herein under the new
lease shall be subject to the possessory rights of the assignee under this Lease and the possessory
rights of any Persons claiming through or under such assignee or by virtue of any statute or of any
order of any court, (B) such new lease shall require all defaults which are susceptible of being
cured by the Tenant named herein existing under this Lease to be cured by Tenant named herein with
due diligence, and (C) such new lease shall require Tenant named herein to pay Rent on the same
terms and conditions set forth herein which, had this Lease not been so disaffirmed, rejected or
terminated, would have become due under the provisions of this Lease after the date of such
disaffirmance, rejection or termination with respect to any period prior thereto. If Tenant named
herein defaults in its obligations to enter into such new lease for a period of 10 days after
Landlord’s request, then, in addition to all other



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rights and remedies by reason of default, either at law or in equity, Landlord shall have the
same rights and remedies against Tenant named herein as if it had entered into such new lease and
such new lease had thereafter been terminated as of the commencement date thereof by reason of
Tenant’s default thereunder.



ARTICLE 17




ELECTRICITY




     Section 17.1 (a) Electricity for Ancillary Space. Landlord shall redistribute or
furnish electricity to or for the use of Tenant in the Ancillary Space for the operation of
Tenant’s electrical systems and equipment in the Ancillary Space, at a level sufficient to
accommodate a demand load of six (6) watts per usable square foot (the “Permitted
Capacity”). Tenant shall pay to Landlord, on demand from time to time but no more frequently
than monthly, for its consumption of electricity at the Ancillary Space, a sum equal to ***** of
the product obtained by multiplying (i) the Cost Per Kilowatt Hour, by (ii) the actual number of
kilowatt hours of electric current consumed by Tenant in such billing period. “Cost Per
Kilowatt Hour” means the total cost payable by Landlord to the utility providing electricity to
the Center during a particular billing period, including energy charges, demand charges,
surcharges, time-of-day charges, fuel adjustment charges, rate adjustment charges, taxes, including
sales taxes, (regardless of whether included in the utility company’s charges or paid separately by
Landlord), rebates and any other factors used by the utility company in computing its charges to
Landlord, divided by the total kilowatt hours purchased by Landlord to provide electricity to the
Center during such period. If any tax is imposed upon Landlord’s receipts from the sale or resale
of electricity to Tenant, Tenant shall reimburse Landlord for such tax, if and to the extent
permitted by law and to the extent attributable to Tenant’s usage. Landlord shall install a meter,
at Tenant’s expense, to measure Tenant’s consumption of electricity in the Ancillary Space, which
meter shall be



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maintained by Landlord at Tenant’s expense. Bills for such amounts shall be rendered to Tenant
at such times as Landlord may elect, but not more frequently than monthly. For any period during
which such meter or meters are not installed or are not operational in the Ancillary Space, the
monthly Fixed Rent with respect to the Ancillary Space shall be increased by an amount equal to the
product of *****, subject to adjustment for any increases in electric rates or taxes, and (B) the
number of rentable square feet in the applicable portion of the Ancillary Space. Tenant shall have
the right at reasonable times and upon reasonable notice to audit such of Landlord’s records as may
be directly applicable to the computation of Tenant’s electricity charges at Landlord’s offices by
a reputable, independent accounting firm, provided Tenant and such firm agree to keep such firm’s
findings confidential in accordance with a confidentiality agreement reasonably satisfactory to
Landlord.




     (b) Electricity for Music Hall. Tenant shall (i) contract directly with the public
utility company furnishing electric service to the Music Hall for electric service to the Music
Hall, (ii) maintain separate meters in the Music Hall to measure Tenant’s consumption of
electricity in the Music Hall and (iii) install and maintain at its sole cost and expense any
equipment necessary to distribute electricity in the Music Hall.



     Section 17.2 Use of Electricity. Tenant shall at all times comply with the rules and
regulations of the utility company supplying electricity to the Buildings. With respect to the
Ancillary Space, Tenant shall not use any electrical equipment which would exceed the Permitted
Capacity. With respect to the Ancillary Space, Tenant shall not make or perform, or permit the
making or performance of, any Ancillary Space Alterations to wiring installations or other
electrical facilities in or serving the Ancillary Space, or make any additions to the office
equipment or other appliances in the Ancillary Space which utilize electrical energy (other than
equipment customarily used in a small office or, with respect to the 1270 Space after the Initial



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Alterations a club) without the prior consent of Landlord, in each instance, and in compliance
with this Lease. If Tenant shall desire any additional risers or other proper and necessary
equipment required to furnish electricity to the Ancillary Space, the same shall be installed by
Landlord at Tenant’s expense (equal to Landlord’s actual out-of-pocket reasonable, third-party
costs supported by reasonable back-up documentation), provided that such installation shall be in
compliance with this Lease, all Requirements and the other leases in the Ancillary Buildings.



     Section 17.3 Service Disruption. Except as otherwise provided in
Section 12.5, Landlord shall not be liable in any way to Tenant for any failure, defect or
interruption of, or change in the supply, character and/or quantity of, electric service furnished
to the Premises for any reason except if attributable to the negligence or willful misconduct of
Landlord, nor shall there be any allowance to Tenant for a diminution of rental value, nor shall
the same constitute an actual or constructive eviction of Tenant, in whole or in part, or relieve
Tenant from any of its Lease obligations, and no liability shall arise on the part of Landlord by
reason of inconvenience, annoyance or injury to business, whether electricity is provided by public
or private utility or by any electricity generation system owned and operated by Landlord. Landlord
shall use reasonable efforts to minimize interference with Tenant’s use and occupancy of the
Premises as a result of any such failure, defect or interruption of, or change in the supply,
character and/or quantity of, electric service, provided that Landlord shall have no obligation to
employ contractors or labor at overtime or other premium pay rates or to incur any other overtime
costs or additional expenses whatsoever.



     Section 17.4 Discontinuance of Service. Landlord reserves the right to discontinue
furnishing electricity to Tenant in the Ancillary Space on not less than 30 days notice to Tenant,
if Landlord is required to do so under applicable Requirements. If Landlord is compelled to
discontinue furnishing electricity to Tenant, this Lease shall continue in full force



76









 







and effect and shall be unaffected thereby except that from and after the effective date of
such discontinuance, Landlord shall not be obligated to furnish electricity to Tenant hereunder. If
Landlord so discontinues furnishing electricity, Tenant shall arrange to obtain electricity
directly from any utility company or other electricity provider serving the Ancillary Space to the
extent available, suitable and safe for such purposes. All equipment which may be required to
obtain electricity of substantially the same quantity, quality and character shall be installed by
Landlord at the sale cost and expense of Tenant (to the extent of Landlord’s actual, third party,
out of pocket costs and provided Landlord furnishes reasonable supporting documentation with
respect thereto) if (A) Landlord is compelled to discontinue such service by the utility company or
pursuant to applicable Requirements, or (B) such discontinuance arises solely out of the acts or
omissions of Tenant. Landlord will not voluntarily discontinue furnishing electricity to Tenant
until Tenant is able to receive electricity directly from the utility company or other company
servicing 1270 Avenue of the Americas, unless the utility company or other company is not prepared
to furnish electricity to the 1270 Space on the date required as a result of Tenant’s delay or
negligence in arranging for service, Tenant’s refusal to provide the utility company or other
company with a deposit or other security requested by the utility company, or Tenant’s refusal to
take any other action requested by the utility company or other company.



ARTICLE 18




ACCESS TO PREMISES




     Section 18.1 Landlord’s Access. (a) Tenant shall permit Landlord, Landlord’s agents,
utility companies and other service providers servicing the Buildings to erect, use and maintain
concealed ducts, pipes and conduits in and through the Ancillary Space, provided such use does not
cause the usable area of the Ancillary Space to be reduced beyond a de minimis amount. Landlord
shall promptly repair any damage to the Ancillary Space or Tenant’s Property



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caused by any work performed pursuant to this Article; in making such repairs, Landlord shall
use high quality materials and perform such repairs in a first class manner and shall, to the
extent practicable, match the then existing finishes in such portions of the Ancillary Space or
Tenant’s Property, as applicable.




     (b) Landlord, any Lessor or Mortgagee and any other party designated by Landlord and their
respective agents shall have the right to enter the Premises at all reasonable times, upon
reasonable notice (which notice may be oral) except in the case of emergency, (i) to examine the
Premises, (ii) to show the Premises to prospective purchasers, Mortgagees or Lessors of the
Buildings and their respective agents and representatives or others, and, during the last 12 months
of the Term, to prospective lessees of the Premises, and (iii) to make such repairs, alterations or
additions to the Premises or the Buildings (A) as Landlord may reasonably deem necessary or
desirable (except that, as to the Premises, only as are reasonably necessary), (B) which Landlord
may reasonably elect to perform following Tenant’s failure to perform, or (C) to comply with any
Requirements which are Landlord’s responsibility, and Landlord shall be allowed to take all
material into the Premises that may be required for the performance of such work without the same
constituting an actual or constructive eviction of Tenant in whole or in part and without any
abatement of Rent; provided that Landlord shall use reasonable efforts to remove those materials
which are not required to remain in the Premises between such work sessions. Any party who
accompanies Landlord to the Premises shall be accompanied by a representative of Tenant (provided
Tenant makes such representative available) but Landlord shall have no obligation to disclose such
party’s name, home or business affiliation or explain the reason for such party’s visit to the
Premises. Except in the case of an emergency, Landlord shall not enter the Premises during times
that would (aa) interfere with any of Tenant’s productions being staged at the Music Hall or
(bb) threaten the health or safety of occupants or invitees of the Premises. If by reason of
Landlord’s failure to



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perform an obligation which is imposed on Landlord under this Lease, Tenant is either denied
access to the Premises or the health and safety of occupants or invitees of the Premises are
threatened, Landlord shall, to the extent practicable, perform such obligation on an overtime basis
until access is restored or such threat is removed.



     (c) All parts (except surfaces facing the interior of the Premises) of all walls, windows and
doors bounding the Premises, including exterior Building walls, exterior core corridor walls, and
doors and entrances (other than doors and entrances solely connecting areas within the Premises),
all balconies, terraces and roofs adjacent to the Premises, (other than all space within the Music
Hall used for shafts, stacks, risers, fan rooms, electrical and communications closets, stairways,
mail chutes, conduits and other mechanical facilities, Independent Systems and Music Hall
facilities) are not part of the Premises, and Landlord shall have the use thereof and access
thereto through the Premises for the purposes of Building operation, maintenance, alteration and
repair.



     Section 18.2 Alterations to Buildings. Landlord has the right at any time to
(a) change the name, number or designation by which the Ancillary Buildings or the Center are
commonly known or (b) alter the Ancillary Buildings or the Center to change the arrangement or
location of entrances or passageways, doors and doorways, and corridors, elevators, stairs,
toilets, or other public parts of the Ancillary Buildings without any such acts constituting an
actual or constructive eviction and without incurring any liability to Tenant, so long as such
changes do not (i) deprive Tenant of access to the Ancillary Space or (ii) affect in any material
respect the internal connections between the Ancillary Space and the Music Hall. Landlord shall use
reasonable efforts to minimize interference with Tenant’s use and occupancy of the Premises during
the making of such changes or alterations, provided that Landlord shall have



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no obligation to employ contractors or labor at overtime or other premium pay rates or to
incur any other overtime costs or additional expenses whatsoever.



ARTICLE 19




DEFAULT




     Section 19.1 Tenant’s Defaults. Each of the following events shall be an “Event
of Default” hereunder:




     (a) Tenant fails to pay when due any installment of Fixed Rent or Additional Rent and
such default continues for ten days after Landlord’s notice of such default is given to
Tenant; or




     (b) Tenant defaults in observing or performing the provisions of Section 3.1(a)
(subject to Tenant’s right to challenge the default as set forth in Section 3.1(a)),
and such default continues for 3 Business Days after notice; or




     (c) Except where a shorter period may be provided in this Lease, Tenant fails to
observe or perform any other term, covenant or condition of this Lease to be observed or
performed by Tenant and such failure continues for more than 30 days after notice by
Landlord to Tenant of such default, or such default is of such a nature that it cannot be
completely remedied within 30 days and Tenant fails to commence to remedy such failure
within 30 days, and thereafter fails to diligently prosecute to completion all steps
necessary to remedy such default; or




     (d) Intentionally Omitted; or




     (e) Tenant’s interest in this Lease shall devolve upon or pass to any Person, whether
by operation of law or otherwise, except as expressly permitted under Article 16



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hereof and Tenant shall not have cured such default within 30 days after receipt of
notice from Landlord regarding the same; or




     (f) Tenant admits in writing its inability to, pay its debts as they become due; or




     (g) Tenant files a voluntary petition in bankruptcy or insolvency, or is adjudicated a
bankrupt or insolvent, or files any petition or answer seeking any reorganization,
liquidation, dissolution or similar relief under any present or future federal bankruptcy
act or any other present or future applicable federal, state or other statute or law, or
makes an assignment for the benefit of creditors or seeks or consents to or acquiesces in
the appointment of any trustee, receiver, liquidator or other similar official for Tenant or
for all or any part of Tenant’s property; or




     (h) if, within 120 days after the commencement of any proceeding against Tenant,
whether by the filing of a petition or otherwise, seeking bankruptcy, insolvency,
reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar
relief under the present or any future federal bankruptcy act or any other present or future
applicable federal, state or other statute or law, such proceeding shall not have been
dismissed, or if, within 120 days after the appointment of any trustee, receiver, liquidator
or other similar official for Tenant, or for all or any part of Tenant’s property, without
the consent or acquiescence of Tenant, such appointment shall not have been vacated or
otherwise discharged, or if any lien, execution or attachment or other similar filing shall
be made or issued against Tenant or any of Tenant’s property pursuant to which the Premises
shall be taken or occupied or attempted to be taken or occupied by someone other than
Tenant; or



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     (i) Tenant shall fail to comply with the retail covenants set out in Exhibit F
to this Lease and such failure shall continue for five (5) Business Days after notice from
Landlord to Tenant; provided, that Tenant shall not be in default under this
clause (i) if, within such five (5) Business Day period, Tenant commences to remedy such
default and thereafter diligently prosecutes to completion all steps necessary to remedy
such default, but in no event shall such default continue for more than 15 days after
Landlord’s initial notice regarding such default; or




     (j) if the Guaranty shall cease to be in full force and effect for any reason other
than the termination of the Guaranty in accordance with the provisions of Section 2(b) of
the Guaranty; or




     (k) if the Guarantor (as defined Article 35) shall default under the Guaranty
beyond any applicable notice and grace period; or




     (l) if the Guarantor (i) fails to (A) maintain a Net Worth of ***** or (B) a Cash Flow
of ***** and (ii) fails to deliver to Landlord a Letter of Credit (as defined in the
Guaranty) within the time period set forth in the Guaranty.



     Upon the occurrence of any one or more of such Events of Default, Landlord may, at its sole
option, give to Tenant three days’ notice of cancellation of this Lease, in which event this Lease
and the Term shall come to an end and expire (whether or not the Term shall have commenced) upon
the expiration of such three day period with the same force and effect as if the date set forth in
the notice was the Expiration Date stated herein; and Tenant shall then quit and surrender the
Premises to Landlord, but Tenant shall remain liable for damages as provided in Article 20
hereof.



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     Section 19.2 Tenant’s Liability. If, at any time. (i) Tenant shall be comprised of
two or more Persons, (ii) Tenant’s obligations under this Lease shall have been guaranteed by any
Person other than Tenant, or (iii) Tenant’s interest in this Lease shall have been assigned, the
word “Tenant,” as used in Sections 19.1(g), (h) and (i), shall be deemed to
mean any one or more of the Persons primarily or secondarily liable for Tenant’s obligations under
this Lease. Any monies received by Landlord from or on behalf of Tenant during the pendency of any
proceeding of the types referred to in this Article shall be deemed paid as compensation for the
use and occupancy of the Premises and the acceptance of any such compensation by Landlord shall not
be deemed an acceptance of Rent or a waiver on the part of Landlord of any rights under this Lease.



ARTICLE 20




REMEDIES AND DAMAGES




     Section 20.1 (a) Landlord’s Remedies. If any Event of Default occurs, and this Lease
terminates as provided in Article 19:




     (i) Surrender of Possession. Tenant shall quit and surrender the Premises to
Landlord, and Landlord and its agents may, at any time after such termination, re-enter the
Premises or any part thereof, without notice, either by summary proceedings, or by any other
applicable action or proceeding, or otherwise in accordance with applicable legal
proceedings, and may repossess the Premises and dispossess Tenant and any other Persons from
the Premises and remove any and all of their property and effects from the Premises.




     (ii) Landlord’s Reletting. Landlord, at Landlord’s option, may relet all or
any part of the Premises from time to time, either in the name of Landlord or otherwise, to



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such tenant or tenants, for any term ending before, on or after the Expiration Date, at
such rental and upon such other conditions (which may include concessions and free rent
periods) as Landlord, in its sole discretion, may determine. Landlord shall have no
obligation to and shall not be liable for refusal or failure to relet or, in the event of
any such reletting, for refusal or failure to collect any rent due upon any such reletting;
and no such refusal or failure shall relieve Tenant of. or otherwise affect, any liability
under this Lease. Landlord, at Landlord’s option, may make such alterations, decorations and
other physical changes in and to the Premises as Landlord, in its sole discretion, considers
advisable or necessary in connection with such reletting or proposed reletting. without
relieving Tenant of any liability under this Lease or otherwise affecting any such
liability.



     (b) Other Remedies. Upon the breach or threatened breach by Tenant. or any Persons
claiming through or under Tenant, of any term, covenant or condition of this Lease, Landlord shall
have the right to enjoin such breach and to invoke any other remedy allowed by law or in equity as
if re-entry, summary proceedings and other special remedies were not provided in this Lease for
such breach. The rights to invoke the remedies set forth above are cumulative and shall not
preclude Landlord from invoking any other remedy allowed at law or in equity.



     (c) Tenant’s Waiver. Tenant, on its own behalf and on behalf of all Persons claiming
through or under Tenant, including all creditors, hereby waives all rights which Tenant and all
such Persons might otherwise have under any Requirement (i) to the service of any notice of
intention to re-enter or to institute legal proceedings, (ii) to redeem, or to re-enter or
repossess the Premises, or (iii) to restore the operation of this Lease, after (A) Tenant shall
have been dispossessed or ejected by judgment or by warrant of any court or judge, (B) any



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re-entry by Landlord, or (C) any expiration or early termination of the Term, whether such
dispossession, re-entry, expiration or termination shall be by operation of law or pursuant to the
provisions of this Lease. The words “re-enter,” “re-entry” and “re-entered” as used in this Lease
shall not be deemed to be restricted to their technical legal meanings. Tenant also waives any
right it may have to trial by jury in any summary dispossess or other proceeding hereafter
instituted by Landlord against Tenant with respect to the Premises or in any action that may be
brought to recover Rent, damages or other sums payable under this Lease. If Landlord commences any
such summary dispossess proceeding, Tenant will not interpose any counterclaim in the proceeding,
other than a compulsory counterclaim.



     Section 20.2(a) Landlord’s Damages. If this Lease and the Term expires and comes to an
end as provided in Article 19, or by or under any summary proceeding or any other action or
proceeding, or if Landlord shall re-enter the Premises as provided in Section 20.1, then,
in any of such events:




     (i) Tenant shall pay to Landlord all Rent payable under this Lease by Tenant to
Landlord up to the Expiration Date or to the date of re-entry upon the Premises by Landlord,
as the case may be;




     (ii) Landlord shall be entitled to retain all monies, if any, paid by Tenant to
Landlord, whether as prepaid Rent or otherwise, which monies, to the extent not otherwise
applied to amounts due and owing to Landlord, shall be credited by Landlord against any
damages payable by Tenant to Landlord;




     (iii) Tenant shall pay to Landlord, in monthly installments, on the days specified in
this Lease for payment of installments of Fixed Rent, any Deficiency; it being understood
that Landlord shall be entitled to recover the Deficiency from Tenant each



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month as the same shall arise, and no suit to collect the amount of the Deficiency for
any month shall prejudice Landlord’s right to collect the Deficiency for any subsequent
month by a similar proceeding; and




     (iv) whether or not Landlord shall have collected any monthly Deficiency, Tenant shall
pay to Landlord, on demand, in lieu of any further Deficiency and as liquidated and agreed
final damages, a sum equal to the amount by which the Rent for the period which otherwise
would have constituted the unexpired portion of the Term (assuming Additional Rent during
such period to be the same as had been payable for the year immediately preceding such
termination or re-entry, increased in each succeeding year by 4% (on a compounded basis))
exceeds the then fair and reasonable rental value of the Premises, for the same period (with
both amounts being discounted to present value at a rate of interest equal to 2% below the
then Base Rate) less the aggregate amount of Deficiencies theretofore collected by Landlord
pursuant to the provisions of Section 20.2(a)(iii) for the same period. If, before
presentation of proof of such liquidated damages to any court, commission or tribunal,
Landlord shall have relet the Premises or any part thereof for the period which otherwise
would have constituted the unexpired portion of the Term or any part thereof, the amount of
rent reserved upon such reletting shall be deemed, prima facie, to be the fair and
reasonable rental value for the part or the whole of the Premises so relet during the term
of the reletting.



     (b) Reletting. If the Premises, or any part thereof, shall be relet together with
other space in the Buildings, the rents collected or reserved under any such reletting and the
expenses of any such reletting shall be equitably apportioned for the purposes of this Section.
Tenant shall not be entitled to any rents collected or payable under any reletting, whether or not
such rents exceed Fixed Rent reserved in this Lease. Nothing contained in



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Article 19 or 20 shall be deemed to limit or preclude the recovery by Landlord
from Tenant of the maximum amount allowed to be obtained as damages under applicable Requirements,
or of any sums or damages to which Landlord may be entitled in addition to the damages set forth in
this Section.



     Section 20.3 Default Interest; Other Rights of Landlord. Any Rent or damages payable
under this Lease and not paid when due (except to the extent provided in Section 2.3) shall
bear interest at the Interest Rate from the due date until paid, and the interest shall be deemed
Additional Rent. If Tenant fails to pay any Additional Rent when due, Landlord, in addition to any
other right or remedy, shall have the same rights and remedies as in the case of a default by
Tenant in the payment of Fixed Rent. If Tenant is in arrears in the payment of Rent, Tenant waives
Tenant’s right, if any, to designate the items against which any payments made by Tenant are to be
credited, and Landlord may apply any payments made by Tenant to any items Landlord sees fit,
regardless of any request by Tenant.



ARTICLE 21




LANDLORD’S RIGHT TO CURE; REIMBURSEMENT




     Section 21.1 Landlord’s Right to Cure. If an Event of Default has occurred and is
continuing, Landlord, without thereby waiving such Event of Default, may perform such obligation
for the account and at the expense of Tenant: (i) immediately or at any time thereafter, and
without notice. in the case of emergency or in case the matter giving rise to such Event of Default
(A) materially interferes with the use by any other tenant of any space in the Buildings,
(B) materially interferes with the efficient operation of the Buildings, (C) will result in a
violation of any Requirement, (D) will result in a default under any Mortgage or Superior Lease, or
(E) will result in a cancellation of any insurance policy maintained by Landlord, and (ii) in any
other case if such Event of Default continues after 10 days from the date Landlord gives notice



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of Landlord’s intention so to perform the defaulted obligation. All costs and expenses
incurred by Landlord in connection with any such performance by it for the account of Tenant and
all costs and expenses, including reasonable counsel fees and disbursements, incurred by Landlord
in any action or proceeding (including any summary dispossess proceeding) brought by Landlord to
enforce any obligation of Tenant under this Lease and/or right of Landlord in or to the Premises,
shall be paid by Tenant to Landlord on demand, with interest thereon at the Interest Rate from the
date incurred by Landlord. Except as expressly provided to the contrary in this Lease, all costs
and expenses which, pursuant to this Lease (including the Rules and Regulations) are incurred by
Landlord and payable to Landlord by Tenant, and all charges, amounts and sums payable to Landlord
by Tenant for any property, material, labor, utility or other services which, pursuant to this
Lease or at the request and for the account of Tenant, are provided, furnished or rendered by
Landlord, shall become due and payable by Tenant to Landlord in accordance with the terms of the
bills rendered by Landlord to Tenant.




     Section 21.2 Reimbursement For Tenant’s Default. Tenant shall reimburse Landlord,
within 30 days after demand, for all expenditures made by, or costs or fines sustained or incurred
by, Landlord due to any Event of Default by Tenant under this Lease, with interest thereon at the
Interest Rate, from the date such expenditures were rightfully made, or costs or fines incurred,
until the date reimbursed by Tenant.



ARTICLE 22




NO REPRESENTATIONS BY LANDLORD; LANDLORD’S APPROVAL




     Section 22.1 No Representations. Except as expressly set forth herein, Landlord and
Landlord’s agents have made no warranties, representations, statements or promises with respect to
(i) the rentable and usable areas of the Premises, the Buildings or the Center, (ii) the amount of
any current or future Taxes, (iii) the compliance with applicable



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Requirements of the Premises, the Buildings or the Center, or (iv) the suitability of the
Premises for any particular use or purpose. No rights, easements or licenses are acquired by Tenant
under this Lease, by implication or otherwise. This Lease contains the entire agreement between the
parties and all understandings and agreements previously made between Landlord and Tenant are
merged in this Lease, which alone fully and completely expresses their agreement. Tenant is
entering into this Lease after full investigation, and is not relying upon any statement or
representation made by the Landlord not embodied in this Lease.




     Section 22.2 Written Approval. All references in this Lease to the consent or
approval of Landlord mean the written consent or approval of Landlord, duly executed by Landlord.
All consents or approvals of Landlord may be granted or withheld in Landlord’s sole discretion
unless specifically provided to the contrary in this Lease.



     Section 22.3 No Money Damages. Wherever in this Lease Landlord’s consent or approval
is required, if Landlord refuses to grant such consent or approval, whether or not Landlord
expressly agreed that such consent or approval would not be unreasonably withheld, Tenant shall not
make, and Tenant hereby waives, any claim for money damages (including any claim by way of set-off,
counterclaim or defense) based upon Tenant’s claim or assertion that Landlord unreasonably withheld
or delayed its consent or approval, except that Tenant shall be entitled to its actual damages if
Landlord is determined to have acted maliciously and in bad faith pursuant to a final, unappealable
judgment from a court of competent jurisdiction. Tenant’s sole remedy shall be an action or
proceeding to enforce such provision, by specific performance, injunction or declaratory judgment.
In no event shall Landlord be liable for, and Tenant, on behalf of itself and all other Tenant
Parties, hereby waives any claim for, any indirect, consequential or punitive damages, including
loss of profits or business opportunity, arising under or in connection with this Lease.



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ARTICLE 23




END OF TERM




     Section 23.1 Expiration. Upon the expiration or other termination of this Lease,
Tenant shall quit and surrender the Premises to Landlord, vacant, broom clean and in good order and
condition, ordinary wear and tear and damage for which Tenant is not responsible under the terms of
this Lease excepted, and Tenant shall remove all of Tenant’s Property as may be required pursuant
to Article 5 of this Lease.



     Section 23.2 Holdover Rent. Landlord and Tenant recognize that the damage to Landlord
resulting from any failure by Tenant to timely surrender possession of the Premises may be
substantial, may exceed the amount of the Rent theretofore payable hereunder, and will be
impossible to accurately measure. Tenant therefore agrees that if possession of the Premises is not
surrendered to Landlord on or before the Expiration Date or sooner termination of the Term, in
addition to any other rights or remedies Landlord may have hereunder or at law, Tenant shall:




     (a) pay to Landlord (i) for the first 90 days during which Tenant holds over in the
Premises after the Expiration Date or sooner termination of the Term, a sum equal to (x) one
and one-half times the Rent (other than Percentage Rent) payable under this Lease for the
last full calendar month of the Term plus (y) the Percentage Rent payable under this Lease
for such period, and (ii) for each month (or portion thereof) thereafter, a sum equal to
(x) two times the Rent (other than Percentage Rent) payable under this Lease for the last
full calendar month of the Term plus (y) the Percentage Rent payable under this Lease, which
amounts shall be payable in lieu of any “use and occupancy” payment permitted or required by
law; and



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     (b) be liable to Landlord for any payment or rent concession which Landlord may be
required to make to any tenant obtained by Landlord for all or any part of the Premises (a
“New Tenant”) in order to induce such New Tenant not to terminate its lease by
reason of the holding-over by Tenant, provided that such new lease is fully executed prior
to the date upon which Tenant vacates the Premises and Landlord notifies Tenant that
Landlord will incur such payment or rent concession.


No holding-over by Tenant, nor the payment to Landlord of the amounts specified above, shall
operate to extend the Term hereof. Nothing herein contained shall be deemed to permit Tenant to
retain possession of the Premises after the Expiration Date or sooner termination of this Lease,
and no acceptance by Landlord of payments from Tenant after the Expiration Date or sooner
termination of the Term shall be deemed to be other than on account of the amount to be paid by
Tenant in accordance with the provisions of this Article.




     Section 23.3 Waiver of Stay. Tenant expressly waives, for itself and for any Person
claiming through or under Tenant, any rights which Tenant or any such Person may have under the
provisions of Section 2201 of the New York Civil Practice Law and Rules and of any
successor law of like import then in force, in connection with any holdover summary proceedings
which Landlord may institute to enforce the foregoing provisions of this Article.



ARTICLE 24




NO SURRENDER; NO WAIVER




     Section 24.1 No Surrender or Release. No act or thing done by Landlord or Landlord’s
agents or employees during the Term shall be deemed an acceptance of a surrender of the Premises.



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     Section 24.2 No Waiver. No provision of this Lease shall be deemed to have been
waived by any party unless such waiver is in writing and is signed by the party against whom such
waiver is asserted, and any such waiver shall be effective only for the specific purpose and in the
specific instance in which given. The failure of either party to seek redress for violation of, or
to insist upon the strict performance of, any covenant or condition of this Lease, or any of the
Rules and Regulations, shall not be construed as a waiver or relinquishment for the future
performance of such obligations of this Lease or the Rules and Regulations, or of the right to
exercise such election but the same shall continue and remain in full force and effect with respect
to any subsequent breach, act or omission. The receipt by Landlord of any Rent payable pursuant to
this Lease or any other sums with knowledge of the breach of any covenant of this Lease shall not
be deemed a waiver of such breach. No payment by Tenant or receipt by Landlord of a lesser amount
than the monthly Fixed Rent or Additional Rent herein stipulated shall be deemed to be other than a
payment on account of the earliest stipulated Fixed Rent or Additional Rent, or as Landlord may
elect to apply such payment, nor shall any endorsement or acceptance of any check or other payment
in the face of a statement on such check or any letter accompanying such check or payment be deemed
an accord and satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord’s right to recover the balance of such Fixed Rent or Additional Rent or pursue any other
remedy provided in this Lease. The existence of a right of renewal or extension of this Lease, or
the exercise of such right, shall not limit Landlord’s right to terminate this Lease in accordance
with the terms hereof.



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ARTICLE 25




WAIVER OF TRIAL BY JURY




     Landlord and Tenant hereby waive trial by jury in any action, proceeding or counterclaim
brought by either party against the other on any matters in any way arising out of or connected
with this Lease, the relationship of Landlord and Tenant, Tenant’s use or occupancy of the
Premises, or the enforcement of any remedy under any Requirement. If Landlord commences any summary
proceeding against Tenant, Tenant will not interpose any counterclaim of any nature or description
in any such proceeding (unless failure to impose such counterclaim would preclude Tenant from
asserting in a separate action the claim which is the subject of such counterclaim), and will not
seek to consolidate such proceeding with any other action which may have been or will be brought in
any other court by Tenant.



ARTICLE 26




INABILITY TO PERFORM




     This Lease and the obligation of Tenant to pay Rent and to perform all of the other covenants
and agreements of Tenant hereunder shall not be affected, impaired or excused by any Unavoidable
Delays. Landlord shall use reasonable efforts to promptly notify Tenant of any Unavoidable Delay
which prevents Landlord from fulfilling any of its obligations under this Lease, provided, that
Landlord’s insolvency or inability to pay its debts as they become due shall not constitute an
Unavoidable Delay with respect to this Article 26.



ARTICLE 27




NOTICES




     Except as otherwise expressly provided in this Lease, any consents, notices, demands,
requests, approvals or other communications given under this Lease shall be in



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writing and shall be deemed sufficiently given or rendered if delivered by hand (provided a
signed receipt is obtained) or if sent by registered or certified mail (return receipt requested)
or by a nationally recognized overnight delivery service making receipted deliveries, addressed as
follows:





     if to Tenant, (i) c/o Madison Square Garden, L.P., 2 Penn Plaza, New York, New York,
Attention: General Counsel and (ii) Rockefeller Group, Inc., 1221 Avenue of the Americas,
29th Floor, New York, New York 10020, Attention: General Counsel, and with copies of any
notices of default to Proskauer Rose LLP, 1585 Broadway, New York, New York 10036-8299,
Attention Lawrence J. Lipson, Esq., and




     if to Landlord, at Landlord’s address set forth on the first page of this Lease,
Attention: Property Manager – 1270 Avenue of the Americas, and with copies to (A) Office of
the Center, 45 Rockefeller Plaza, New York, New York 10111, Attention: General Counsel,
(B) Office of the Center, 45 Rockefeller Plaza, New York, New York 10111, Attention:
Controller, (C) Tishman Speyer Properties, L.P., 520 Madison Avenue, New York, New York
10022 Attention: General Counsel, and (D) any Mortgagee or Lessor which shall have
requested copies of notices, by notice given to Tenant in accordance with the provisions of
this Article at the address designated by such Mortgagee or Lessor; or


to such other address(es) as either Landlord or Tenant or any Mortgagee or Lessor may designate as
its new address(es) for such purpose by notice given to the other in accordance with the provisions
of this Article. Any such consent, notice, demand, request or other communication shall be deemed
to have been given on the date of receipted delivery or refusal to accept delivery as provided in
this Article 27, or the date delivery is first attempted but cannot be made due to a change
of address of which no notice was given.




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ARTICLE 28




RULES AND REGULATIONS




     Tenant and all Tenant Parties shall observe and comply with the Rules and Regulations (which
do not relate to the Music Hall and solely relate to the Ancillary Space and which are consistent
with the Permitted Uses with respect to the Ancillary Space) as reasonably supplemented or amended
from time to time, provided, that in case of any conflict or inconsistency between the provisions
of this Lease and any of the Rules and Regulations as originally promulgated or as supplemented or
amended from time to time, the provisions of this Lease shall control. Landlord reserves the right,
from time to time, to adopt additional reasonable Rules and Regulations and to amend the Rules and
Regulations then in effect. Nothing contained in this Lease shall impose upon Landlord any
obligation to enforce the Rules and Regulations or terms, covenants or conditions in any other
lease against any other tenants in the Buildings, and Landlord shall not be liable to Tenant for
violation of the Rules and Regulations by any other tenant, its employees, agents, visitors or
licensees, except that Landlord shall not adopt or enforce any Rule or Regulation against Tenant in
a discriminatory fashion. Tenant may challenge the “reasonableness” of any Rule or Regulation and
such challenge shall be determined pursuant to the “Dispute Resolution Procedure” set forth in
Article 38 of this Lease. Pending resolution of such dispute, Tenant shall comply with such
disputed Rule or Regulation if in Landlord’s good faith judgment, Tenant’s failure to do so would
have a material adverse affect on the operation of the Premises or on other occupants of the
Center.



ARTICLE 29




PARTNERSHIP TENANT




     Section 29.1 Partnership Tenant. If Tenant, or a permitted assignee of this Lease
pursuant to Article 16, is a partnership, or is comprised of two or more Persons,



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individually or as partners of a partnership (any such partnership and such Persons are
referred to in this Article 29 as “Partnership Tenant”), the following shall apply:
(i) the liability of each of the general partners (excluding Persons solely holding interests as
limited partners), each of the partners in a limited liability partnership or Persons comprising
Partnership Tenant (the “Partners”) shall be joint and several (subject to the inherent
limitations of liability of such business organization); (ii) each of the Partners hereby consents
in advance to, and agrees to be bound by, any written instrument which may hereafter be executed by
Partnership Tenant or any of the Partners, which shall modify, extend or discharge this Lease, in
whole or in part, or surrender all or any part of the Premises to Landlord; (iii) any bills,
statements, notices, demands, requests or other communications given or rendered to Partnership
Tenant; (iv) if Partnership Tenant shall admit new Partners, all new Partners shall, by their
admission to Partnership Tenant, be deemed to have assumed joint and several liability for the
performance of all of the terms, covenants and conditions of this Lease on Tenant’s part to be
observed and performed (subject to the inherent limitations of liability in such business
organization; (v) Partnership Tenant shall give prompt notice to Landlord of the admission of any
new Partners, and upon demand of Landlord, shall cause each new Partner to execute and deliver to
Landlord an agreement in form and substance satisfactory to Landlord, wherein each new Partner
shall assume joint and several liability (subject to the inherent limitations of liability in such
business organization) for the performance of all the terms, covenants and conditions of this Lease
on Tenant’s part to be observed and performed (but neither Landlord’s failure to request any such
agreement nor the failure of any new Partner to execute or deliver any such agreement to Landlord
shall vitiate the provisions of this Section 29.1); and (vi) no change in the Partners of
Partnership Tenant resulting from the admission of a new Partner, or the death, retirement or
withdrawal of a Partner shall release Partnership Tenant or any Partner or former Partner from
their obligations under this Lease.



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     Section 29.2 Change of Partners. If Tenant is a Partnership Tenant, (i) the admission
of new Partners, the withdrawal (in the ordinary course of business), retirement, death,
incompetency or bankruptcy of any Partner, or the reallocation of partnership interests among the
Partners shall not constitute an assignment of this Lease unless Partners holding in the aggregate
not less than 51 % of the partnership interests in Partnership Tenant immediately prior to such
event remain as Partners holding not less than 51% of the partnership interests in Partnership
Tenant during the 12-month period immediately following such event (i.e., the transfer, by any of
the foregoing means, of more than 49% of the partnership interests in Partnership Tenant, except
among the Partners, in any consecutive 12-month period shall constitute an assignment of this Lease
subject to the provisions of Article 16), and (ii) the reorganization of Partnership Tenant
into a professional corporation or a limited liability partnership, or the reorganization of Tenant
from a professional corporation or a limited liability partnership into a partnership, shall not
constitute an assignment of this Lease, if immediately following such reorganization the Partners
or shareholders, as the case may be, of Tenant shall be less than 51% of those existing immediately
prior to such reorganization, and shall remain fully liable, jointly and severally, under this
Lease as provided in this Article 29 (subject to the inherent limitations of liability in
such business organization).



ARTICLE 30




VAULT SPACE




     Notwithstanding anything contained in this Lease or indicated on any sketch, blueprint or
plan, no vaults, vault space or other space outside the boundaries of the Real Property are
included in the Premises. Landlord makes no representation as to the location of the boundaries of
the Real Property. All vaults and vault space and all other space outside the boundaries of the
Real Property which Tenant may be permitted to use or occupy are to be



97









 




used or occupied under a revocable license. If any such license shall be revoked. or if the
amount of such space shall be diminished as required by any Governmental Authority or by any public
utility company, such revocation, diminution or requisition shall not (i) constitute an actual or
constructive eviction, in whole or in part, (ii) entitle Tenant to any abatement or diminution of
Rent, (iii) relieve Tenant from any of its obligations under this Lease, or (iv) impose any
liability upon Landlord. Any fee, tax or charge imposed by any Governmental Authority for any such
vaults, vault space or other space occupied by Tenant shall be paid by Tenant.




ARTICLE 31




LANDLORD’S AGENT




     Section 31.1 Landlord’s Agent. Unless Landlord shall render notice to Tenant to the
contrary, Tishman Speyer Properties, L.P. is authorized to act as Landlord’s agent in connection
with the performance of this Lease, and Tenant shall direct all correspondence and requests to, and
shall be entitled to rely upon correspondence received from, Tishman Speyer Properties, L.P., as
agent for Landlord in accordance with Article 27. Tenant acknowledges that Tishman Speyer
Properties, L.P. is acting solely as agent for Landlord in connection with the foregoing; and
neither Tishman Speyer Properties, L.P. nor any of its direct or indirect partners, officers,
shareholders, directors, employees, principals, agents or representatives shall have any liability
to Tenant in connection with this Lease, and Tenant waives any and all claims against any and all
of such parties arising out of, or in any way connected with, this Lease, the Buildings or the
Center.



     Section 31.2 Representations. Landlord has retained Landlord’s Agent as leasing agent
in connection with this Lease and Landlord will be solely responsible for any fee that may be
payable to Landlord’s Agent. Landlord agrees to pay a commission to Landlord’s Agent pursuant to a
separate agreement. Each of Landlord and Tenant represents and warrants



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to the other that it has not dealt with any broker in connection with this Lease other than
Landlord’s Agent and that to the best of its knowledge and belief, no other broker, finder or like
entity procured or negotiated this Lease or is entitled to any fee or commission in connection
herewith.



     Section 31.3 Indemnity. Each of Landlord, Landlord’s Agent and Tenant shall
indemnify, defend, protect and hold the other party harmless from and against any and all Losses
which the indemnified party may incur by reason of any claim of or liability to any broker, finder
or like agent (other than Landlord’s Agent) arising out of any dealings claimed to have occurred
between the indemnifying party and the claimant in connection with this Lease, or the above
representation being false.



ARTICLE 32




INDEMNITY




     Section 32.1 (a) Tenant’s Indemnity. Tenant shall indemnify, defend, protect and hold
harmless each of the Indemnitees from and against any and all Losses to which any Indemnitee may
(except to the extent arising from the negligence or willful misconduct of such Indemnitees) be
subject or suffer, whether by reason of, or by reason of any claim for, any injury to, or death of,
any person or persons or damage to property (including any loss of use thereof) or otherwise
arising from or in connection with the use of, or from any work or thing whatsoever done in, any
part of the Premises (other than by such Indemnitee) or by any Tenant Party (exclusive of invitees)
in the Center, during the Term or during the period of time, if any, prior to the commencement or
following the expiration of the Term that Tenant may have been given access to any portion of the
Premises for the purpose of performing work or otherwise, or as a result of any Tenant Party
performing any such work or otherwise that subjects any Indemnitee to any Requirement to which such
Indemnitee would not otherwise be subject, or arising from



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any condition of the Premises due to or resulting from any default by Tenant in the keeping,
observance or performance of any provision contained in this Lease or from any act or negligence of
any Tenant Party.




     (b) Indemnity Inclusions. As used in this Lease, the term “Losses” means any
and all losses, liabilities, damages, claims, judgments, fines, suits, demands, costs, interest and
expenses of any kind or nature (including reasonable attorneys’ fees and disbursements) incurred in
connection with any claim, proceeding or judgment and the defense thereof, and including all costs
of repairing any damage to the Premises, the Buildings or the Center, or the appurtenances of any
of the foregoing, to which a particular indemnity and hold harmless agreement applies.



     Section 32.2 Landlord’s Indemnity. Landlord shall indemnify, defend and hold Tenant
harmless from and against all Losses incurred by Tenant arising from any accident, injury or damage
whatsoever caused to any person or the property of any person (other than Tenant) in or about
Premises or the common or public areas of the Ancillary Buildings, to the extent attributable to
the negligence or willful misconduct of Landlord or its agents or employees.



     Section 32.3 Defense and Settlement. If any claim, action or proceeding is made or
brought against any party entitled to indemnification hereunder, then, upon demand by the
indemnified party, the indemnifying party, at its sole cost and expense, shall resist or defend
such claim, action or proceeding in the indemnified party’s name (if necessary), by attorneys
approved by the indemnified party, which approval, shall not be unreasonably withheld. Attorneys
for the indemnifying party’s insurer shall hereby be deemed approved for purposes of this
Section 32.3. Notwithstanding the foregoing, an indemnified party may retain its own
attorneys to participate or assist in defending any claim, action or proceeding involving potential



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liability of ***** or more, provided that the indemnifying party shall control the defense and
the indemnifying party shall pay the reasonable fees and disbursements of such attorneys.
Notwithstanding anything herein contained to the contrary, the indemnifying party may direct the
indemnified party to settle any claim, suit or other proceeding provided that (i) such settlement
shall involve no obligation on the part of the indemnified party other than the payment of money,
(ii) any payments to be made pursuant to such settlement shall be paid in full exclusively by the
indemnifying party at the time such settlement is reached; provided, that if the indemnified party
is unconditionally released at the time such settlement is reached, the indemnifying party may pay
such amounts over a reasonable period of time, (iii) such settlement shall not require the
indemnified party to admit any liability or wrongdoing, and (iv) the indemnified party shall have
received an unconditional release from the parties to such settlement. To the extent the
indemnifying party shall control the defense or settlement of any claim as herein provided, the
indemnified party agrees to (x) cooperate fully with the indemnifying party and its counsel and
(y) execute any and all releases and other documents determined by the indemnifying party and its
counsel as necessary to compromise or settle any claim that the indemnifying party is permitted
hereunder to compromise or settle, provided that such releases and other documents shall be
consistent with the terms and conditions of this Article 32 and not in derogation of the rights of
the indemnified party hereunder. So long as the indemnifying party shall be performing all of its
obligations hereunder, the indemnified party shall not settle any claim without the indemnifying
party’s written consent which shall not be unreasonably withheld.



ARTICLE 33




ADJACENT EXCAVATION; SHORING




     If an excavation shall be made, or shall be authorized to be made, upon land adjacent to the
Real Property, Tenant shall, upon notice, afford to the Person causing or



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authorized to cause such excavation a license to enter upon the Premises for the purpose of
doing such work as such person shall deem necessary to preserve the Buildings or any other part of
the Center from injury or damage and to support the Buildings or such part of the Center by proper
foundations. In connection with such license, Tenant shall have no right to claim any damages or
indemnity against Landlord, or diminution or abatement of Rent, provided that Tenant shall continue
to have access to the Premises.




ARTICLE 34




TAX STATUS OF BENEFICIAL OWNERS




     Tenant recognizes and acknowledges that Landlord and/or certain beneficial owners of Landlord
may from time to time qualify as real estate investment trusts pursuant to Section 856 et
seq. of the Code or as entities described in Section 511(a)(2) of the Code, and that avoiding
(i) the loss of such status, (ii) the receipt of any income derived under any provision of this
Lease that does not constitute “rents from real property” (in the case of real estate investment
trusts) or that constitutes “unrelated business taxable income” (in the case of entities described
in Section 511(a)(2) of the Code), and (iii) the imposition of penalty or similar taxes (each, an
“Adverse Event”) is of material concern to Landlord and such beneficial owners. In the
event that this Lease or any document contemplated hereby could, in the opinion of counsel to
Landlord, result in or cause an Adverse Event, Tenant agrees to cooperate with Landlord in
negotiating an amendment or modification thereof and shall at the request of Landlord execute and
deliver such documents reasonably required to effect such amendment or modification. Any amendment
or modification pursuant to this Article 34 shall be structured so that the economic
results to Landlord and Tenant shall be similar, other than to a de minimis extent, to those set
forth in this Lease without regard to such amendment or modification. Without limiting any of
Landlord’s other rights under this Article 34, Landlord may waive the



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receipt of any amount payable to Landlord under this Lease, and such waiver shall constitute
an amendment or modification of this Lease with respect to such payment.




ARTICLE 35




GUARANTY




     Simultaneously with the execution and delivery of this Lease, and as a condition to the
effectiveness hereof, MSG has delivered its guaranty of Tenant’s obligations under this Lease in
the form annexed hereto as Schedule 6 (the “Guaranty”). In connection with any
Transfer of Control to an entity satisfying the tests set forth in Section 16.5 (a
“Permitted Transferee”), the Permitted Transferee shall execute a guaranty in substantially
the same form as the Guaranty (a “New Guaranty”) and shall deliver the same to Landlord.
Upon such delivery, the Permitted Transferee shall be deemed the Guarantor hereunder with respect
to the obligations of Tenant thereafter accruing and such New Guaranty shall be deemed the Guaranty
hereunder from and after such delivery; provided, however, that nothing contained herein shall be
deemed to release any Guarantor from any obligation or liability which accrued during the period
prior to the delivery of the New Guaranty. Upon delivery of the New Guaranty by such Permitted
Transferee, Landlord shall execute an instrument of release in form and substance reasonably
satisfactory to Landlord and the Guarantor then being released releasing such party from any
obligations under its guaranty accruing from and after the date of the delivery of the New
Guaranty.



ARTICLE 36




RENEWAL OPTION




     Section 36.1 Exercise of Option. Tenant shall have the right, at its sole option, to
renew the Term for all of the Premises for a single renewal term (the “Renewal Term”)



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of 10 years by written notice (the “Renewal Notice”) delivered to Landlord not less
than 24 months prior to the Initial Expiration Date; provided, however, that no Event of Default
shall have occurred and be continuing under any of the terms, covenants or conditions of this Lease
either on the date the Renewal Notice is given or on the Renewal Term Commencement Date (as
hereinafter defined). Upon the giving of the Renewal Notice, this Lease shall be deemed renewed for
the Renewal Term with the same force and effect as if the Renewal Term had originally been included
in the Term. The Renewal Term shall commence on the day after the Initial Expiration Date (the
“Renewal Term Commencement Date”) and shall terminate on the 10th anniversary of the
Initial Expiration Date. Time is of the essence with respect to the giving of the Renewal Notice by
Tenant.



     Section 36.2 Terms. All of the terms, covenants and conditions of this Lease shall
continue in full force and effect during the Renewal Term, except that (a) the Fixed Rent for the
Renewal Term shall be in an amount equal to the greater of ***** b) Tenant shall have no further
right to renew the Term, (c) the Base Tax Year will be the Tax Year commencing on the July 1st
prior to the Renewal Term Commencement Date and (d) the “Base Operating Year” (as defined in
Schedule 3) for the Retail Space shall be the year in which the Renewal Term Commencement
Date occurs. Any termination, cancellation or surrender of the entire interest of Tenant under this
Lease at any time during the Term shall terminate any right of renewal of Tenant hereunder.



     Section 36.3 *****



     Section 36.4 *****



     Section 36.5 Lease Amendment. Upon request by Landlord or Tenant made on or following
the Renewal Term Commencement Date, the requested party will execute,



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acknowledge and deliver to the requesting party an amendment to this Lease setting forth the
Renewal Term Commencement Date, Fixed Rent for the Renewal Term, and the Renewal Term Expiration
Date. The failure of either party to execute and deliver such an amendment shall not affect the
rights of the parties under this Lease.




ARTICLE 37




RETAIL SPACE RIGHT OF FIRST OFFER




     Section 37.1 Exercise of Right. If at any time prior to the expiration or earlier
termination of the Term, Landlord anticipates that either of the two retail stores which face
Avenue of the Americas and are located at 1270 Avenue of the Americas, substantially as shown on
Exhibits A-5 and A-6 (all or any portion of such space, “Offer Space”),
shall become available for leasing, Landlord shall deliver notice thereof to Tenant (the “Offer
Notice”) setting forth (a) a description (including the location and configuration) of the
Offer Space in question, (b) the square footage of the Offer Space in question and (c) Landlord’s
determination of (i) fair market rental value for the Offer Space (which may include periodic
increases in rent over the term of the Lease and which shall take into account percentage rent
equal to the Percentage Rent payable with respect to the Offer Space) based upon a term expiring on
the Expiration Date (“Landlord’s Determination”), and (ii) a description of the services,
if any, to be provided to the Offer Space and other material business terms upon which Landlord is
willing to lease the Offer Space, and the date upon which Landlord anticipates that Landlord will
be able to deliver possession of the Offer Space to Tenant. Provided that all of the conditions
precedent set forth in this Article 37 are fully satisfied by Tenant, Tenant shall have the
option (the “Offer Option”), exercisable by Tenant delivering written notice to Landlord
(the “Acceptance Notice”) within thirty (30) days (the “Acceptance Period”) of the
giving by Landlord of the Offer Notice, to lease the Offer Space upon the terms and conditions set
forth in this Article 37, and this Lease shall



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thereupon be modified as provided in Section 37.4. Time shall be of the essence as to
Tenant’s giving of any Acceptance Notice. The Offer Option may be exercised only with respect to
all of the Offer Space which is the subject of an Offer Notice. If Tenant fails to timely give an
Acceptance Notice with respect to such Offer Space, Landlord shall be free to lease such Offer
Space to any third party or to otherwise dispose of such Offer Space and Tenant shall be deemed to
have waived the Offer Option with respect to the applicable Offer Space and shall have no further
right with respect thereto; provided that if Landlord fails to lease such space within 12 months
after the expiration of such Acceptance Period and provided Landlord is not in active negotiations
for such space (or if such active negotiations terminate and are not reinstituted) then Landlord
will reoffer such Offer Space to Tenant, if such Offer Space is then available for leasing, subject
to and in accordance with this Section 37.1.




     Section 37.2
Availability. For purposes of this Article 37, space shall not
be deemed “available for leasing” if, at the time in question any Person holds a written option or
right to lease or occupy the Offer Space or to renew its lease or right(s) of occupancy thereof
which exist(s) as of the date hereof or is granted by Landlord after Landlord’s compliance with
Section 37.1 hereof. So long as a tenant or other occupant leases or occupies a portion of
the Offer Space, Landlord shall be free to extend any such tenancy or occupancy, whether or not
pursuant to a lease or other agreement, and such space shall not be deemed to be “available for
leasing”. Subject to clause (b) of the first sentence of this Section 37.2. Landlord agrees
that from and after the date hereof, it will not grant any rights to any Person or entity with
respect to the Offer Space unless such rights are subordinate to the rights granted Tenant
hereunder, except (i) to tenants or other occupants leasing or occupying the Offer Space as of the
date hereof, or (ii) to new tenants or occupants of any portion of the Offer Space in question
after Landlord shall have duly offered such portion of the Offer Space to Tenant pursuant to this
Article 37 and Tenant has not elected to lease such Offer Space in accordance with



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Section 37.1. Nothing set forth in this Article 37 shall be construed to limit
Landlord’s right to keep space in 1270 Avenue of the Americas vacant if Landlord elects, in its
sole discretion, to do so, and such vacant space shall in no event be deemed to be available for
leasing hereunder.




     Section 37.3 Conditions to Exercise. Tenant shall have no right to exercise the Offer
Option unless, on the date of the Acceptance Notice and on the Offer Space Commencement Date (as
hereinafter defined), no Event of Default shall have occurred and be continuing.



     Section 37.4 Incorporation of Offer Space. Effective as of the date on which Landlord
delivers the Offer Space to Tenant (the “Offer Space Commencement Date”):




     (a) the Offer Space shall be added to and be deemed to be a part of the Retail Space
for all purposes of this Lease (except as otherwise provided in this Article 37);




     (b) the Offer Space shall be delivered in its “as is” condition, and Landlord shall not
be obligated to perform any work or provide any services (other than work or services then
generally being provided to new retail tenants in the Center as identified in the Offer
Notice);




     (c) Fixed Rent for the Offer Space shall be determined in accordance with
Section 37.6 as of the Offer Space Commencement Date which shall take into account
all relevant factors, including (i) comparable retail space in the Center, with such space
considered (A) as vacant, (B) in “as is” condition on the Offer Space Commencement Date but
with the services, if any, to be provided to the Offer Space as identified in the



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Offer Notice and (C) with a Base Tax Year as the Tax Year commencing on the
July 1st prior to the Offer Space Commencement Date and a Base Operating Year in
the year in which the Offer Space Commencement Date occurs, (ii) financial obligations then
being imposed on new retail tenants (including Tenant) in the Center as of the Offer Space
Commencement Date, such as, common area maintenance charges, contributions to a retail
promotional fund and other similar charges as set forth in the Office Notice, (iii) the
calculation of Percentage Rent which shall be in the same manner as set forth in this Lease;




     (d) Tenant shall covenant and agree that it will, at its sole cost and expense, comply
with the covenants set forth on Exhibit F annexed hereto with respect to the Office
Space;




     (e) Tenant shall pay Tenant’s Tax Payment and the Retail Operating Expense Payment with
respect to the Offer Space based upon base years which will commence on the July 1st
(with respect to Tenant’s Tax Payment) and on the January 1st (with respect
to the Retail Operating Expense Payment) prior to the Offer Space Commencement Date; and




     (f) Tenant’s Area with respect to the Offer Space shall be equal to the number of
rentable square feet contained in the Offer Space.



     Section 37.5 Possession. (a) If Tenant exercises its right to lease the Offer Space
and Landlord is unable to deliver possession on the date set forth in the Offer Notice as the date
on which Landlord anticipates delivering possession of the Offer Space to Tenant by reason of the
holding over or retention of possession of any tenant or occupant of the Offer Space (i) Landlord
shall not be liable to Tenant for any failure by a then existing tenant or



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occupant to vacate any of the Offer Space, (ii) Landlord shall use commercially reasonable
efforts to obtain and deliver to Tenant vacant possession of the Offer Space within ninety
(90) days after the anticipated availability date as stated by Landlord in the Offer Notice and in
connection therewith, if appropriate in Landlord’s good faith judgment, institute and diligently
prosecute a holdover or other proceedings against such tenant or occupant of such Offer Space and
(iii) Tenant’s obligations under this Lease with respect to the Premises and the Offer Space shall
not be affected thereby except that the term of the lease with respect to the Offer Space shall not
commence until Landlord shall deliver vacant possession of the Offer Space to Tenant. The terms set
forth in the preceding provisions of this Section 37.5 are intended to constitute “an
express provision to the contrary” within the meaning of Section 223-a of the New York Real
Property Law or any successor Requirement.



     (b) Notwithstanding anything to the contrary contained in this Section 37.5, if
Landlord shall have failed to deliver possession of such Offer Space on or before the date which is
one (1) year after the anticipated Offer Space Commencement Date set forth in the Offer Notice by
reason of the holding over or retention of possession of any tenant or other occupant or for any
other reason, then Tenant shall have the right to withdraw its Acceptance Notice by written notice
thereof given on or before the date that shall be thirty (30) days after the end of the aforesaid
one (1) year period unless prior to the giving of such notice or within ten (10) days thereafter
Landlord shall have delivered vacant possession of such Offer Space to Tenant.



     Section 37.6 Arbitration. (a) If Tenant shall dispute Landlord’s Determination with
respect to the Fixed Rent for the Offer Space, Tenant shall give notice to Landlord with Tenant’s
Determination of the Fixed Rent (“Tenant’s Determination”) with Tenant’s delivery of the
Acceptance Notice. Landlord’s Determination shall be the determination set forth in the Offer
Notice. If Landlord and Tenant are unable to reach a mutual determination of the Fixed Rent



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within 30 days of delivery of Tenant’s Determination, Landlord and Tenant shall jointly select
an Appraiser and the fees of the Appraiser shall be shared equally by Landlord and Tenant. In the
event that Landlord and Tenant shall be unable to jointly agree on the designation of the Appraiser
within five (5) days after they are requested to do so by either party, then the parties agree to
allow the American Arbitration Association, or any successor organization to designate the
Appraiser in accordance with the rules, regulations and/or procedures then obtaining of the
American Arbitration Association or any successor organization. The decision of the Appraiser shall
be final and binding upon Landlord and Tenant.



     (b) The Appraiser shall conduct such hearings and investigations as he or she may deem
appropriate and shall, within thirty (30) days after the date of designation of the Appraiser,
choose either Landlord’s or Tenant’s Determination, and such choice by the Appraiser shall be
conclusive and binding upon Landlord and Tenant. Each party shall pay its own counsel fees and
expenses, if any, in connection with any arbitration under this Article 37. The Appraiser
appointed pursuant to this Article 37 shall be an independent real estate appraiser with at
least ten (10) years experience in retail leasing of properties which are similar in character to
1270 Avenue of the Americas. The Appraiser shall not have the power to add to, modify or change any
of the provisions of this Lease.



     (c) It is expressly understood that any determination of the Fixed Rent for the Offer Space
pursuant to this Article 37 shall be based on the criteria stated in Section 37.4
hereof.



     (d) Prior to the determination of the Appraiser, Tenant shall pay Fixed Rent on account of the
Offer Space in the amount equal to Landlord’s Determination, and following the Appraiser’s final
determination, the amount of any overpayment shall be adjusted between the parties.



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     Section 37.7 Lease Amendment. Upon request by either party made on or following the
Offer Space Commencement Date, the parties will execute, acknowledge and deliver to Landlord an
amendment to this Lease setting forth the Offer Space Commencement Date and Fixed Rent for the
Offer Space, and reflecting the incorporation of the Offer Space into the Premises, and the
modifications to this Lease resulting therefrom, as provided in Section 37.4. The failure
of either party to execute and deliver such an amendment shall not affect the rights of the parties
under this Lease.



ARTICLE 38




DISPUTE RESOLUTION PROCEDURE




     Section 38.1 Wherever this Lease provides for a dispute to be resolved by the procedure (the
“Dispute Resolution Procedure”) provided for in this Section 38.1, such dispute
shall, at either party’s option, be settled and finally determined by arbitration in The City of
New York in accordance with the following provisions of this Section 38.1. Within
10 Business Days next following the giving of any notice by Landlord or Tenant stating that it
wishes such dispute to be so determined which notice shall refer to this Section 38.1 and
shall provide in Bold Face Type that if either party shall fail to give notice of such designation
within said 10 Business Days, then the arbitrator chosen by the other side shall make the
determination alone. Landlord and Tenant shall each give notice to the other setting forth the name
and address of an arbitrator designated by the party giving such notice. If either party shall fail
to give notice of such designation of an arbitrator within said 10 Business Days, then the
arbitrator chosen by the other side shall make the determination alone. The two arbitrators shall
designate a third arbitrator within 5 Business Days after the designation of the second arbitrator.
If the two arbitrators shall fail to agree upon the designation of a third arbitrator within such
5 Business Day period, then either party may apply to the president of the American Arbitration
Association



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located in The City of New York for the designation of such third arbitrator. If the president
of the American Arbitration Association is unable or refuses to act within 10 Business Days, then
either party may apply to the Supreme Court of the State of New York, New York County, or to any
other court having jurisdiction for the designation of such third arbitrator. Each arbitrator shall
have at least 10 years experience in a calling related to the matter as to which arbitration is
being sought. The three arbitrators shall conduct such hearings as they deem appropriate, making
their determination in writing and giving notice to Landlord and Tenant of their determination as
soon as practicable, and if possible, within 5 Business Days after the designation of the third
arbitrator in the event no two of the arbitrators shall render a concurrent determination, then the
determination of the third arbitrator designated shall be binding upon Landlord and Tenant.
Judgment upon any decision rendered in arbitration held pursuant to this Section 38.1 shall
be final and binding upon Landlord and Tenant, whether or not a judgment shall be entered in any
court. Each party shall pay its own counsel fees and expenses, if any, in connection with any
arbitration under this Section 38.1 (unless the arbitrators shall have awarded counsel fees
and expenses to the prevailing party upon a finding of bad faith by the other party), including the
expenses and fees of any arbitrator selected by it in accordance with the provisions of this
paragraph, and the parties shall share all other expenses and fees of any such arbitration. The
arbitrators shall be bound by the provisions of this Lease, and shall not add to, subtract from or
otherwise modify such provisions.




     Section 38.2 Any dispute which, pursuant to the terms of this Lease, is to be resolved in an
expedited arbitration shall be resolved in accordance with the procedures otherwise set forth in
Section 38.1, except that the same shall be determined by a single arbitrator jointly
selected by the parties within 5 Business Days after the giving of the notice of arbitration, or if
the parties are unable to agree on an arbitrator within such 5-Business Day period, either party,
upon notice to the other party, may request such appointment by the



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American Arbitration Association, or in the absence, refusal, failure or inability to act of
the American Arbitration Association, may apply to the Supreme Court of the State of New York,
New York County for a court appointment of such arbitrator. The arbitrator jointly selected shall
be directed to reach a decision within 10 Business Days following the arbitrator’s appointment.



ARTICLE 39




MUSIC HALL COVENANTS




     Section 39.1 Conduct of Business. Tenant, recognizing that the Buildings and the
Center are maintained as a first class type of business occupancy and as an additional inducement
to Landlord to enter into this Lease, covenants and agrees that at all times a Person with a high
quality reputation within the entertainment industry with at least 10 years of experience operating
live entertainment venues comparable to the Music Hall shall continuously operate the Music Hall as
a first-class entertainment center, consistent with the first class, high quality character of the
Center. All merchandise sold by Tenant at the Music Hall or otherwise in connection with Music Hall
events shall comply with Exhibit F annexed hereto.



     Section 39.2 Clean Interior. Tenant shall, at Tenant’s sole cost and expense, keep
the Music Hall clean and in a neat, orderly, safe and sanitary condition consistent with that of a
first class entertainment center.



     Section 39.3 Replace Glass. Tenant shall as soon as practicable after any glass
(including mirrors) in the Music Hall and the perimeter and demising walls thereof is broken or
cracked, including a so-called “bull’s-eye” break in the glass, at its sole expense, replace such
glass with glass of the same kind and quality, unless changes thereto are approved by Landlord in
accordance with Article 5, and replace the frames for such glass, if necessary.



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     Section 39.4 Awnings. Tenant shall not install, place or permit any awning on the
perimeter walls of the Music Hall.



     Section 39.5 Sounds. Tenant shall not use, play or operate or permit to be used,
played or operated any sound making or sound reproducing device in the Music Hall, except in such
manner and under such conditions so that no unreasonable amount of sound shall be heard outside of
the Music Hall and the tenants of the Center shall not be disturbed. Any performance staged by
Tenant outside the Music Hall shall require Landlord’s prior written consent, which shall be
(a) granted or denied within 5 Business Days after written request therefor has been received by
Landlord, provided that if such consent is not granted or denied within such 5-Business Day period,
such consent shall be deemed to be denied and (b) subject to Landlord’s reasonable regulation;
provided that without Landlord’s consent but upon 72 hours prior notice from Tenant to Landlord,
Tenant may stage no more than 5 events per year outside of the Music Hall so long as each such
event is no longer than (i) 30 minutes in duration if it is staged on Business Days between the
hours of 9 a.m. and 5 p.m. and (ii) 1 hour in duration if it is staged on non Business Days or on
Business Days other than between the hours of 9:00 a.m. and 5:00 p.m.



     Section 39.6 Displays. Tenant shall maintain tasteful, well-lighted displays in the
display windows, if any, and change such displays from time to time. The content of such displays
shall be limited to events in the Music Hall or the Center and shall be used primarily to promote
or advertise any business or merchandise which relates to the Music Hall and the Garden. Tenant
shall not install any displays or exhibits on or about, and visible from, the exterior of the Music
Hall which are obscene or offensive to the general public.



     Section 39.7 Lock Doors. Tenant shall keep all entrance doors and windows in the
Music Hall locked at such times when the Music Hall is not in use.



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     Section 39.8 Security. Tenant shall provide and maintain in good working order during
the Term, a security system suitable to reasonably protect the Music Hall, including a 24 hour
direct response smoke, fire and burglary alarm system connected to the Center’s central control
system. To the extent attributable to Music Hall events, Tenant shall also provide outdoor security
services for the purpose of control of (a) bus parking and crowds on the street adjacent to the
Music Hall and (b) any interference with the ingress and egress to 1270 Avenue of the Americas and
other adjacent portions of the Center. Tenant agrees to cooperate with Landlord during any tests of
the Center’s central control system.



     Section 39.9 Marquees. Tenant shall clean and maintain the marquees attached to the
Music Hall in good order and repair, in accordance with Landlord’s standards for the Center and
promptly, at Tenant’s sole cost and expense, make all necessary repairs to such marquees in
accordance with the provisions of this Lease. Tenant shall keep such marquees lit 15 hours a day
(from 10 a.m. to 1 a.m.), 7 days a week throughout the Term.



     Section 39.10 Radio City Events/Rockettes. (a) During (i) calendar year 1999 there
shall be no less than (A) ***** actual performances staged on the main stage at the Music Hall
(“Actual Performances”) and (B) ***** Theater Use Days (as hereinafter defined) per annum,
(ii) calendar year 2000 there shall be no less than (X) ***** Actual Performances staged on the
main stage at the Music Hall and (Y) ***** Theater Use Days per annum and (iii) each calendar year
of the Term thereafter, there shall be no less than (1) ***** Actual Performances staged on the
main stage at the Music Hall and (2) ***** Theater Use Days. A “Theater Use Day” shall mean *****
If during any calendar year of the Term commencing with calendar year 1999, there shall be less
than ***** Actual Performances and the number of Theater Use Days required under this
Section 39.10, then Landlord shall calculate the annual average of Actual Performances and
Theater Use Days for the immediately preceding 3-calendar year period (or



115









 







such lesser period as shall commence on January 1, 1999) and, if either such average shall
fail to meet the requirements for the required number of Actual Performances and Theater Use Days
set forth above (a “Performance Failure”), then the first such Performance Failure shall
result in Tenant being obligated to pay to Landlord as Additional Rent the sum of ***** within
10 days after written demand therefor by Landlord, the second such Performance Failure shall result
in Tenant being obligated to pay to Landlord as Additional Rent the sum of ***** within 10 days
after written demand therefor by Landlord and any Performance Failure thereafter shall constitute a
default under this Lease which shall not be subject to cure.



     (b) In the event the “Radio City Christmas Spectacular” (which shall mean the Christmas
holiday musical show traditionally performed at the Music Hall or any other Christmas holiday show
or production similar thereto) or the Rockettes shall be presented or perform, as applicable,
(i) in the Restricted Area (as defined below), then 100% of the revenues derived from any such
event(s) shall be included in the “Gross Revenues” of Tenant for the Computation Year during which
such event(s) occurred or (ii) in the Christmas Show Expanded Restricted Area (as defined below) or
the Rockettes Expanded Restricted Area (as defined below), as applicable, then 50% of the revenues
derived from such event(s) shall be included in the “Gross Revenues” of Tenant for the Computation
Year during which such event(s) occurred.




	 	(i)	 	For purposes of this Section 39.10, the “Restricted
Area” shall mean the 75-mile radius surrounding the Music Hall.
	 
	 	(ii)	 	For purposes of this Section 39.10, the “Christmas Show
Expanded Restricted Area” shall include the District of Columbia and the
following states: New York, New Jersey, Connecticut, Pennsylvania, Delaware,
Maryland, Rhode Island, Massachusetts, Vermont, New Hampshire and Maine.




116









 












	 	(iii)	 	For purposes of this Section 39.10, the “Rockettes
Expanded Restricted Area” shall mean the 200-mile radius surrounding the Music
Hall. The “Rockettes Expanded Restricted Area” shall not be applicable to a
single event-specific guest appearances by the Rockettes, such as an appearance
at the Macy’s Thanksgiving Day Parade.





     Section 39.11 Seat Reservations. (a) Subject to Section 39.11(b) below,
during the Term, Tenant shall, with respect to events staged in the Music Hall (i) for which a
majority of the seats for such events are sold to the general public, reserve in Landlord’s name
***** row of ***** consecutive seats, in the ***** through ***** rows — ***** (the
“Approved Seats”) (or if, such seats shall not be made available to Tenant, then Tenant
shall provide Landlord with those seats made available to Tenant which are situated closest to the
Approved Seats), which may be purchased by Landlord at the box office price for such seats to the
general public and (ii) which are so-called “special” events and, accordingly, a majority of seats
for such events are not sold to the general public (a “Special Event”), allot to Landlord
at least 10% of the tickets offered to Tenant (or any Affiliate of Tenant) for such Special Event
and Tenant shall furnish to Landlord with respect to such Special Event those seats which are
situated closest to the Approved Seats, but in no event shall Landlord be offered less than
***** tickets, or more than ***** tickets, for any Special Event which tickets may be purchased by
Landlord at the face price for such seats or if there is no such face price, they shall be provided
to Landlord at no charge. If Landlord shall fail to purchase seats (with respect to events
described in clause (i)) or notify Tenant of Landlord’s desire to either purchase or claim its
seats (with respect to events described in clause (ii)) on or before the date which is 14 days
prior to the performance for which such seats are reserved, Tenant may release such seats for such
performance; provided,



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however, that with respect to the Radio City Christmas Spectacular, such 14-day period shall
be increased to 21 days.



     (b) Throughout the Term, Tenant hereby agrees that no less than 45 days prior to the first
performance of (i) the Radio City Christmas Spectacular and (ii) any other event at the Music Hall
which shall stage a block of ***** or more consecutive performances (a “Multiple Performance
Event”), Tenant shall provide to Landlord a list (a “Performance Schedule”) of the
dates and times of each performance of the Radio City Christmas Spectacular and any such Multiple
Performance Event, as applicable. Within 15 days after receipt of Tenant’s list setting forth such
performance dates and times, Landlord may, at its option (A) with respect to the Radio City
Christmas Spectacular, designate up to ***** performances for which Landlord elects to reserve
Approved Seats and (B) with respect to a Multiple Performance Event described in clause (ii) above,
Landlord shall designate ***** performances for which Landlord shall be entitled to reserve
Approved Seats. Tenant shall provide seats to Landlord in accordance with the terms set forth in
paragraph (a) above. If Tenant shall fail to timely deliver a Performance Schedule, Landlord shall
retain its rights under this Section 39.11 for all performances unless and until a
Performance Schedule is so provided and in any event with respect to all performances occurring
within 15 days of the delivery of such Performance Schedule. If Landlord shall fail to designate
its selection of performances, Tenant may on 3 Business Days’ notice (during which 3-Business Day
Period Landlord fails to make its own designations) which notice shall in BOLD FACE TYPE state that
Landlord’s failure to respond to such notice within 3-Business Days shall cause Landlord to forfeit
its seats for ***** performances and designate ***** of such performances as to which Landlord
shall have its rights under this Section 39.11 as if Landlord had made such designations.



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     Section 39.12 Club Memberships. If, in connection with Music Hall events or the Club,
Tenant shall establish, or cause to be established, a membership program or association whereby
members receive special privileges, Tenant shall grant to Landlord six (6) such memberships at the
same price, if any, and on the same terms for which such memberships are generally being offered to
Tenant’s most valued patrons. The memberships shall be granted for the Term and the rights and
privileges concomitant to such memberships may be assigned, at Landlord’s option, to Persons
designated by Landlord.



     Section 39.13 End of Term. At the expiration of the Term, if requested by Landlord,
Tenant, at its own cost and expense, shall remove or cause to be removed all signs or other
installations placed on the exterior of the Music Hall by Tenant during the Term, which shall be
considered Music Hall Alterations for all purposes of this Lease, and shall repair any damage to
the Music Hall caused by such removal. In the event Tenant fails to remove or cause to be removed
the same within 10 days following the expiration of the Term, Landlord shall have the right,
without notice to Tenant, to remove any such signs, awnings or other installations, dispose of the
same and charge Tenant for the reasonable out-of-pocket cost of such removal and disposition and
any repairs necessitated thereby, which shall be payable to Landlord as Additional Rent.



     Section 39.14 Equitable Relief. Tenant acknowledges that damages resulting from any
breach of the provisions of this Article 39 are difficult, if not impossible, to ascertain
and concedes that, among other remedies for such breach permitted by law or the provisions of this
Lease, Landlord shall be entitled to seek to enjoin Tenant from any violation of said provisions.



119









 





ARTICLE 40




VIP CLUB




     Section 40.1 Club. Tenant shall construct and operate in the 1270 Space a
first-class, private dining club (the “Club”) to be used by Tenant primarily in connection
with events held in the Music Hall. The Club shall provide restaurant service to the patrons of
such events invited by Tenant and, at other times, to other persons having a membership in the Club
(“Members”) and to private parties. The Club shall not be open to the general public.
Subject to compliance by Tenant with of all of the covenants, agreements, terms and conditions of
this Lease, including all Requirements relating to the sale of alcoholic beverages, Tenant may
serve beer, wine and liquor in the Club provided that such service is provided in a manner
consistent with first-class clubs and restaurants in midtown Manhattan.



     Section 40.2 Construction and Operations. Tenant, at Tenant’s sole cost and expense,
in accordance with all applicable Requirements and Article 5 of this Lease, shall install
and furnish in the Club one or more private dining rooms and first-class restrooms consistent with
the style and ambiance of the Music Hall. Tenant shall cause its architects and engineers to
specify and use first-class materials, including such acoustical material and design standards as
may be available to insulate the walls, floor and ceiling of the Club so that tenants of
1270 Avenue of the Americas are protected from noise generated by the Club and a first-class, state
of the art air recirculating system to insure that smoke and/or cooking odors generated by the Club
are ventilated out of 1270 Avenue of the Americas and do not emanate beyond the Club to the rest of
1270 Avenue of the Americas or the Music Hall or the Buildings in the Center. Tenant shall cause
all ventilating hoods over ranges and cooking equipment and all duct work within the 1270 Space and
to the main vertical risers to be regularly cleaned in a manner reasonably satisfactory to Landlord
and shall keep all plumbing and sanitary systems and



120









 







installations in the 1270 Space in first-class operating condition. Tenant shall not prepare
any food or beverages in the Club for sale or distribution outside of the Club or the Music Hall by
Tenant or anyone else. Tenant’s operation of the Club shall not encumber or obstruct, or permit to
be encumbered or obstructed, the portion of 1270 Avenue of the Americas or of the sidewalk or
street adjacent to or abutting the street entrance to the Club. Except as otherwise expressly
provided in this Lease, all access to the 1270 Space shall be through the Music Hall except for
deliveries to the Club which shall be through the freight elevators serving 1270 Avenue of the
Americas. Tenant shall not use any cart, wagon or similar conveyance for the sale and/or delivery
of coffee or any other items inside or outside of 1270 Avenue of the Americas.



     Section 40.3 Access to Music Hall. Tenant shall have the right to connect the
1270 Space and the Music Hall in order to provide direct access between the Music Hall and the
Club; provided, however, that such connection shall be subject to the requirements set forth in
Article 5 of this Lease. Tenant shall be responsible, at its sole cost and expense, for
compliance with all Requirements occasioned by the reconfiguration of access between the Club and
Music Hall whether such compliance relates to the Music Hall or 1270 Avenue of the Americas.



ARTICLE 41




STUDIO APARTMENT




     Section 41.1 Studio Apartment. The Music Hall shall be deemed to include the so-called
Studio Apartment or Roxy Suite described on Exhibit G annexed hereto (the “Studio
Apartment”). Landlord shall be entitled to occasionally use the Studio Apartment provided that
Landlord shall first make a reservation for each such use with Tenant. Landlord shall pay to
Tenant, within 10 days after being billed therefor, Tenant’s normal rental fee and any other
reasonable costs actually incurred by Tenant in connection with Landlord’s use of the Studio



121









 




Apartment. Upon request by Landlord, Tenant shall prepare a proposed budget for each use
proposed by Landlord.




     Section 41.2 Studio Apartment Property. Notwithstanding anything to the contrary set
forth in Section 5.1(a), no Music Hall Alterations shall be made to the Studio Apartment
without the prior consent of Landlord. Tenant shall, however, maintain and repair Landlord’s Studio
Apartment Property (as defined below) in a first-class manner and in accordance with the terms of
this Lease and all Requirements; provided, however, Tenant shall advise Landlord of any material
projected maintenance and repairs contemplated to be performed by Tenant. Notwithstanding anything
in this Lease to the contrary all items currently situated in the Studio Apartment including the
items of property set forth on Schedule 5 (“Landlord’s Studio Apartment Property”)
shall not be removed from the Studio Apartment and shall continue to be the property of Landlord
from and after the date hereof.



ARTICLE 42




MISCELLANEOUS




     Section 42.1 Delivery. This Lease shall not be binding upon Landlord or Tenant unless
and until Landlord shall have executed and delivered a fully executed copy of this Lease to Tenant.



     Section 42.2 Transfer of Real Property. Landlord’s obligations under this Lease shall
not be binding upon the Landlord named herein after the sale, conveyance, assignment, transfer or
lease of Landlord’s interest (collectively, a “Transfer”) by Landlord (or upon any
subsequent landlord after the Transfer by such subsequent landlord) of its interest in the
Buildings or the Real Property, as the case may be (except for such obligations as accrued prior to
such Transfer unless such subsequent landlord assumes in writing such obligations



122









 







which accrued prior to such transfer), and in the event of any such Transfer, Landlord (and
any such subsequent landlord) shall be entirely freed and relieved of all covenants and obligations
of Landlord hereunder accruing from and after such Transfer (unless such subsequent landlord shall
have expressly agreed to assume Landlord’s obligations which accrued prior to the date of such
Transfer in which event Landlord shall also be released from those existing obligations), and the
transferee of Landlord’s interest (or that of such subsequent landlord) in the Buildings or the
Real Property, as the case may be, shall be deemed to have assumed all obligations under this Lease
accruing from and after such Transfer.



     Section 42.3 Limitation on Liability. The liability of Landlord for Landlord’s
obligations under this Lease shall be limited to Landlord’s interest from time to time in the Real
Property, the insurance proceeds arising therefrom, the title insurance proceeds arising therefrom
and the proceeds from the sale of the Real Property; provided that, with respect to the proceeds
from the sale of the Real Property, any claim by Tenant seeking recovery against such proceeds
shall be null and void unless Tenant asserts such claim in writing prior to 180 days after the date
of the closing of such sale and commences an action with respect thereto within thirty (30) days
thereafter. Tenant shall not look to any other property or assets of Landlord or the property or
assets of any of the Indemnitees in seeking either to enforce Landlord’s obligations under this
Lease or to satisfy a judgment for Landlord’s failure to perform such obligations; and none of the
Indemnitees shall be personally liable for the performance of Landlord’s obligations under this
Lease.



     Section 42.4 Rent. Notwithstanding anything to the contrary contained in this Lease,
all amounts payable by Tenant to or on behalf of Landlord under this Lease, whether or not
expressly denominated Fixed Rent, Tenant’s Tax Payment, the Retail Operating Expense



123









 







Payment, Additional Rent (including Percentage Rent) or Rent, shall constitute rent for the
purposes of Section 502(b)(6) of the United States Bankruptcy Code.



     Section 42.5 Entire Document. This Lease (including any Schedules and Exhibits
referred to herein and all supplementary agreements provided for herein) contains the entire
agreement between the parties and all prior negotiations and agreements are merged into this Lease.
All of the Schedules and Exhibits attached hereto are incorporated in and made a part of this
Lease, provided that, in the event of any inconsistency between the terms and provisions of this
Lease and the terms and provisions of the Schedules and Exhibits hereto, the terms and provisions
of this Lease shall control. All Article and Section references set forth herein shall, unless the
context otherwise requires, be deemed references to the Articles and Sections of this Lease.



     Section 42.6 Governing Law. This Lease shall be governed in all respects by the laws
of the State of New York.



     Section 42.7 Partial Unenforceability. If any provision of this Lease, or its
application to any Person or circumstance, shall ever be held to be invalid or unenforceable, then
in each such event the remainder of this Lease or the application of such provision to any other
Person or any other circumstance (other than those as to which it shall be invalid or
unenforceable) shall not be thereby affected, and each provision hereof shall remain valid and
enforceable to the fullest extent permitted by law.



     Section 42.8 Consent to Jurisdiction. (a) Except as expressly provided to the
contrary in this Lease, Tenant agrees that all disputes arising, directly or indirectly, out of or
relating to this Lease, and all actions to enforce this Lease, shall be dealt with and adjudicated
in the state courts of the State of New York or the federal courts for the Southern District of



124









 







New York; and for that purpose Tenant expressly and irrevocably submits itself to the
jurisdiction of such courts. Tenant agrees that so far as is permitted under applicable law, this
consent to personal jurisdiction shall be self-operative and no further instrument or action, other
than service of process in one of the manners specified in this Lease, or as otherwise permitted by
law, shall be necessary in order to confer jurisdiction upon it in any such court.



     (b) To the extent that Tenant has or hereafter may acquire any immunity from jurisdiction of
any court or from any legal process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its
property, Tenant irrevocably waives such immunity in respect of its obligations under this Lease.



     Section 42.9 Estoppels. (a) Within ten Business Days following request from
Landlord, any Mortgagee or any Lessor, Tenant shall deliver to Landlord a statement executed and
acknowledged by Tenant, in form satisfactory to Landlord, (i) stating the Commencement Date, the
Rent Commencement Date and the Expiration Date, and that this Lease is then in full force and
effect and has not been modified (or if modified, setting forth all modifications), (ii) setting
forth the date to which Fixed Rent and any Additional Rent have been paid, together with the amount
of monthly Fixed Rent, Tenant’s Tax Payment, the Retail Operating Expense Payment and Percentage
Rent then payable, (iii) stating whether or not, to the best of Tenant’s knowledge, Landlord is in
default under this Lease, and, if Tenant asserts that Landlord is in default, setting forth the
specific nature of any such defaults, (iv) stating whether Landlord has failed to complete any work
required to be performed by Landlord under this Lease, (v) stating whether there are any sums
payable to Tenant by Landlord under this Lease, (vi) stating the amount of the security deposit, if
any, under this Lease, (vii) stating whether there are any subleases affecting the Premises,
(viii) stating the address of Tenant to which all notices and



125









 







communications under this Lease shall be sent, and (ix) responding to any other matters
reasonably requested by Landlord, such Mortgagee or such Lessor. Tenant acknowledges that any
statement delivered pursuant to this Section 42.9 may be relied upon by any purchaser or
owner of the Real Property or the Buildings, or all or any portion of Landlord’s interest in the
Real Property or the Buildings or under any Superior Lease, or by any Mortgagee or assignee
thereof, or by any Lessor or assignee thereof.



     (b) Within 10 days following request therefor by Tenant, Landlord shall, at Landlord’s sole
cost and expense, deliver to Tenant a statement executed by Landlord stating, as of the date of
execution of such statement (i) that this Lease is then in full force and effect and has not been
modified (or if modified, setting forth all modifications), (ii) the date to which the Rent has
been paid and (iii) whether or not, to the best knowledge of Landlord, Tenant is in default under
this Lease, and, if Landlord asserts that Tenant is in default, setting forth the specific nature
of all such defaults.



     Section 42.10 Certain Rules of Interpretation. For purposes of this Lease, whenever
the words “include”, “includes”, or “including” are used, they shall be deemed to be followed by
the words “without limitation”, and, whenever the circumstances or the context requires, the
singular shall be construed as the plural, the masculine shall be construed as the feminine and/or
the neuter and vice versa. This Lease shall be interpreted and enforced without the
aid of any canon, custom or rule of law requiring or suggesting construction against the party
drafting or causing the drafting of the provision in question.



     Section 42.11 Captions. The captions in this Lease are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope of this Lease or
the intent of any provision hereof.



126









 





     Section 42.12 Parties Bound. The terms, covenants, conditions and agreements
contained in this Lease shall bind and inure to the benefit of Landlord and Tenant and, except as
otherwise provided in this Lease, to their respective legal representatives, successors, and
assigns.



     Section 42.13 Memorandum of Lease. This Lease shall not be recorded; however, at
Landlord’s request, Landlord and Tenant shall promptly execute, acknowledge and deliver a
memorandum of this Lease in form suitable for recording, together with such customary New York City
and State Real Property Transfer Tax forms and affidavits as are then required for the recording of
such memoranda, and Landlord may thereupon record such memorandum. Upon the expiration or sooner
termination of the Term, Tenant shall execute and deliver to Landlord such customary documents and
instruments, in form suitable for recording, as Landlord shall reasonably request to evidence the
termination of such memorandum of lease.



     Section 42.14 Counterparts. This Lease may be executed in duplicate counterparts,
each of which shall be deemed an original and all of which, when taken together, shall constitute
one and the same instrument.



     Section 42.15 Display Window Space. Tenant’s rights and obligations with respect to
the Display Window Space shall be governed by the Display Window Agreement and the Display Window
Space shall not otherwise be subject to any of the provisions of this Lease.



     Section 42.16 Labor Relations. (a) Tenant shall not employ, or permit the employment
of, any Person, or permit any materials to be delivered to or used in the Buildings, if, Landlord’s
sole judgment, such employment, delivery or use will interfere or cause any conflict or disharmony
with any Persons engaged in the construction, maintenance or operation



127









 







of the Buildings or the Center by Landlord, Tenant or others, or the use and enjoyment of the
Buildings or the Center by other tenants or occupants. In the event of such interference, conflict
or disharmony, upon Landlord’s request, Tenant shall cause all such Persons causing such
interference or conflict to leave the applicable Building (or Buildings) immediately.



     (b) Landlord shall not employ, or permit the employment of, any contractor or laborer, or
permit any materials to be delivered to or used in the Premises, if, in Tenant’s reasonable
judgment, such employment, delivery or use will interfere or cause any conflict or disharmony with
any Person engaged in the construction, maintenance or operation of the Premises by Landlord,
Tenant or others. In the event of such interference, conflict or disharmony, upon Tenant’s request,
Landlord shall cause all Persons causing such interference or conflict to leave the Premises
immediately.



     Section 42.17 Survival. All obligations and liabilities of Landlord or Tenant to the
other which accrued before the expiration or other termination of this Lease and all such
obligations and liabilities which by their nature or under the circumstances can only be, or by the
provisions of this Lease may be, performed after such expiration or other termination, shall
survive the expiration or other termination of this Lease. Without limiting the generality of the
foregoing, the rights and obligations of the parties with respect to any indemnity under this
Lease, and with respect to Fixed Rent and Tenant’s Tax Payment, and any other amounts payable under
this Lease, shall survive the expiration or other termination of this Lease.



128









 





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



	 	 	 	 	 	 	 	 	 
	 	 	LANDLORD:
	 
	 	 	 	 	 	 	 	 
	 	 	RCPI TRUST
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Geoffrey P. Wharton	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Geoffrey P. Wharton	 	 
	 

	 	 	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	TENANT:
	 
	 	 	 	 	 	 	 	 
	 	 	RADIO CITY PRODUCTIONS, LLC
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Kenneth W. Munoz	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name: Kenneth W. Munoz	 	 
	 	 	 	 	Title: Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Tenant’s Federal Identification
Number:	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 






129











 




EXHIBIT
A-1



MUSIC
HALL FLOOR PLAN


A-1








 




EXHIBIT
A-2



1270
SPACE FLOOR PLAN


A-2








 




EXHIBIT
A-3



50
ROCK SPACE FLOOR PLAN


A-3








 




EXHIBIT
A-4



RETAIL
SPACE #1


A-4








 




EXHIBIT
A-5



OFFER
SPACE #1


A-5








 




EXHIBIT
A-6



OFFER
SPACE #2


A-6








 




EXHIBIT
A-7



INTENTIONALLY
OMITTED


A-7








 





EXHIBIT A-8




DISPLAY WINDOW SPACE




     The Display Window Space shall constitute of all of the display windows attached to the facade
of the Music Hall, which shall be comprised of: 5 display windows on the 51st street side of the
Music Hall, 4 display windows on the Avenue of the Americas side of the Music Hall and 16 display
windows on the 50th street side of the Music Hall.



A - 8











 





EXHIBIT B




DEFINITIONS




     Affiliate: With respect to any Person, any other Person that, directly or indirectly,
through one or more intermediaries, Controls, is Controlled by, or is under common Control with,
such first Person.



     Alterations: Ancillary Space Alterations and Music Hall Alterations, collectively.



     Base Rate: The annual rate of interest publicly announced from time to time by
Citibank, N.A., or its successor, in New York, New York as its “base rate” (or such other
term as may be used by Citibank, N.A., from time to time, for the rate presently referred to as its
“base rate”).



     Building:
Any one of the Music Hall, 1270 Avenue of the Americas or 50 Rockefeller
Plaza.



     Building Systems: The Refrigeration Plant and the mechanical, electrical, plumbing,
sanitary, sprinkler, heating, ventilation and air conditioning, security, life-safety, elevator and
other service systems or facilities of the Ancillary Buildings up to (but not including) the point
of localized distribution to the Ancillary Space (excluding any systems or facilities exclusively
serving the Ancillary Space).



     Business Days: All days, excluding Saturdays, Sundays and all days observed by either
the State of New York, the Federal Government or the labor unions servicing the Buildings as legal
holidays.



     Business Hours: The hours of 8:00 a.m. through 6:00 p.m. on Business Days.



     Center: The buildings in the City, County and State of New York, bounded on the north
by 51st Street, on the east by Fifth Avenue, on the south by 48th Street and
on the west by the Avenue of the Americas, commonly known as 600 Fifth Avenue,



B-1









 




610 Fifth Avenue, 620 Fifth Avenue, 630 Fifth Avenue, One Rockefeller Plaza, 10 Rockefeller
Plaza, 30 Rockefeller Plaza, 50 Rockefeller Plaza, 1230 Avenue of the Americas, 1240 Avenue of the
Americas, 1250 Avenue of the Americas, 1258 Avenue of the Americas, 1270 Avenue of the Americas,
Studio Building and the Music Hall, together with a parking garage, public spaces, an ice skating
rink and certain other public areas appurtenant to the foregoing, which are commonly known
collectively as Rockefeller Center, together with the real property on which such buildings are
located and the adjacent curbs and sidewalks, and the plazas, underground concourse areas, and all
other public areas and common facilities appurtenant thereto.




     Code: The Internal Revenue Code of 1986, as amended, and the regulations promulgated
thereunder.



     Control: (i) The ownership, directly or indirectly, of more than fifty per cent (50%)
of the voting stock of a corporation, or (ii) in the case of any Person which is not a corporation,
the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person.



     Deficiency: The difference between (i) Fixed Rent and Additional Rent for the period
which otherwise would have constituted the unexpired portion of the Term, and (ii) the net amount,
if any, of rents collected under any reletting effected pursuant to the provisions of this Lease
for any part of such period (after first deducting from such rents all expenses incurred by
Landlord in connection with the termination of this Lease, Landlord’s re-entry upon the Premises
and such reletting, including repossession costs, brokerage commissions, attorneys’ fees and
disbursements, and alteration costs).



B-2









 





     Display Window Agreement: The Display Window Agreement dated June 17, 1993 by and
between RCP and RCMHPI, as modified by the Lease Modification and as further modified and extended
by an agreement of even date herewith between Landlord and Tenant annexed hereto as Exhibit
A-8.



     Display Window Space: Display Windows as described in the Display Window Agreement.



     50 Rockefeller Plaza: The building, fixtures, equipment and other improvements and
appurtenances now located or hereafter erected, located or placed upon the land known as
50 Rockefeller Plaza, New York, New York.



     Governmental Authority (Authorities): The United States of America, the City, County
or State of New York or any political subdivision, agency, department, commission, board, bureau or
instrumentality of any of the foregoing, or any landmarks preservation agency (or other entity
designated or accepted for such purpose by any Governmental Authority or landmarks preservation
agency), now existing or hereafter created, having jurisdiction over the Real Property or the
Center.



     Hazardous Materials: Any substances, materials or wastes currently or in the future
deemed or defined in any Requirements as “hazardous substances”, “toxic substances”,
“contaminants”, “pollutants” or words of similar import.



     HVAC System: The Building System designed to provide heating, ventilation and air
conditioning.



     Indemnitees: Landlord, Landlord’s Agent, each Mortgagee and Lessor, and each of their
respective direct and indirect partners, officers, shareholders, directors,



B-3









 







members, trustees, beneficiaries, employees, principals, contractors, licensees, invitees,
servants, agents and representatives.



     Independent Systems: The mechanical, electrical (including escalators and elevators),
plumbing, condenser water and cooling tower, sanitary, sprinkler, smoke purge and life safety and
other service systems (or the applicable portions thereof) servicing the Music Hall and not other
portions of the Buildings, it being understood that (i) the domestic cold water system serving the
Music Hall, (ii) the soil lines serving the Music Hall, (iii) the electrical system servicing the
Music Hall, (iv) the steam system serving the Music Hall, (v) the smoke purge system serving the
Music Hall, (vi) the sprinkler system serving the Music Hall, (vii) the Class E system serving the
Music Hall and (viii) the gas line serving the Music Hall shall all be deemed to be Independent
Systems.



     Interest Rate: 2% above the Base Rate, but not less than 12% per annum.



     Lessor: A lessor under a Superior Lease.



     Mortgage(s): Any mortgage, trust indenture or other financing document which may now
or hereafter affect the Center, the Real Property, the Buildings, the Premises or any Superior
Lease and the leasehold interest created thereby, and all renewals, extensions, supplements,
amendments, modifications, consolidations and replacements thereof or thereto, substitutions
therefor, and advances made thereunder.



     Mortgagee: Any mortgagee, trustee or other holder of a Mortgage.



     Person: Any individual, corporation, partnership, limited liability company, joint
venture, estate, trust, unincorporated association, business trust, tenancy-in-common or other
entity, or any Governmental Authority.



B-4









 





     Prohibited Use: Any use or occupancy of the Premises that would be likely to:
(i) cause damage to the Buildings, the Premises, the Center or any equipment, facilities or other
systems owned by Landlord therein; (ii) impair the appearance of the Premises, the Buildings or the
Center; (iii) interfere with the efficient and economical maintenance, operation and repair of the
Premises, the Buildings or the Center or the equipment, facilities or systems owned by Landlord;
(iv) adversely affect any service provided to, and/or the use and occupancy by, any of the
Buildings’ tenants or occupants; (v) violate the certificate of occupancy issued for the Premises
or the Buildings; or (vi) adversely affect the image of the Buildings or the Center as a
first-class office location in midtown Manhattan. Prohibited Use also includes the use of
any part of the Premises for: (A) except as otherwise expressly provided with respect to the Club
and the Music Hall, the preparation, consumption, storage, manufacture or sale of food or beverages
(except in connection with vending machines and/or warming kitchens installed for the use of
Tenant’s employees only), liquor or tobacco, it being expressly understood and agreed that the
preparation, consumption, storage, manufacture or sale of food, beverages, liquor and tobacco
(subject to compliance with all Requirements) shall constitute a Permitted Use in the Music Hall
and the Club; (B) the business of photocopying, multilith or offset printing (except photocopying
in connection with Tenant’s own business); (C) a typing or stenography business; (D) a school or
classroom other than dance classes; (E) lodging or sleeping; (F) a payroll office other than for
Tenant’s employees; (G) a barber, beauty or manicure shop open to the public; (H) an employment
agency, executive search firm or similar enterprise; (I) offices of any Governmental Authority, any
foreign government, the United Nations, or any agency or



B-5









 







department of the foregoing; (J) the rendering of medical, dental or other therapeutic or
diagnostic services open to the public; (K) except (1) with respect to the Music Hall and (2) as
permitted in the Declaration, broadcasting or the business of broadcasting by wire or wireless of
any programs or pictures of any sort, or the sale of apparatus or devices connected with the
business of such broadcasting; (L) the display or exhibiting of any materials which are obscene or
offensive to the general public or (M) any illegal activity, including the use of illegal drugs, or
any activity constituting a nuisance.



     Real Property: The Buildings, individually and collectively together with the plot of
land upon which each Building stands.



     Requirements: All present and future laws, rules, orders, ordinances, regulations,
statutes, requirements, codes and executive orders, extraordinary and ordinary of (i) all
Governmental Authorities, including the Americans With Disabilities Act, 42 U.S.C. § 12101 (et
seq.), New York City Local Law 58 of 1987, and any law of like import, and all rules, regulations
and government orders with respect thereto, and any of the foregoing relating to Hazardous
Materials, environmental matters, public health and safety matters, and landmarks preservation,
(ii) any applicable fire rating bureau or other body exercising similar functions, affecting the
Real Property or the Center or the maintenance, use or occupation thereof, and (iii) all insurance
bodies affecting the Premises.



     Rules and Regulations: The rules and regulations governing the Ancillary Space
annexed to and made a part of this Lease as Exhibit I, as the same may be modified from
time to time by Landlord.



B-6









 





     Superior Lease(s): Any ground or underlying lease of the Center, the Real Property or
any part thereof heretofore or hereafter made by Landlord and all renewals, extensions,
supplements, amendments, modifications, consolidations, and replacements thereof.



     Tenant Delay: Any delay which results from any act or omission of any Tenant Party,
including delays due to changes in or additions to, or interference with, any work to be done by
Landlord, or delays by Tenant in submission of information, approving working drawings or estimates
or giving authorizations or approvals.



     Tenant Party: Any of Tenant, any Affiliate of Tenant, or any of their respective
direct or indirect partners, officers, shareholders, directors, members, trustees, beneficiaries,
employees, principals, contractors, licensees, invitees, servants, agents or representatives.



     Tenant’s Property: Tenant’s movable fixtures and movable partitions, telephone and
other equipment, computer systems, trade fixtures, furniture, furnishings, and other items of
personal property which are removable without material damage to the Premises or the Buildings and
which is not Landlord’s Music Hall Property.



     1270 Avenue of the Americas: The building, fixtures, equipment and other improvements
and appurtenances now located or hereafter erected, located or placed upon the land known as
1270 Avenue of the Americas, New York, New York.



     Unavoidable Delays: Landlord’s inability to fulfill or delay in fulfilling any of its
obligations under this Lease expressly or impliedly to be performed by Landlord, or Landlord’s
inability to make or delay in making any repairs, additions, alterations, improvements or
decorations, or Landlord’s inability to supply or delay in supplying any



B-7









 







equipment or fixtures, if Landlord’s inability or delay is due to or arises by reason of
strikes, labor troubles or by accident, or by any cause whatsoever beyond Landlord’s reasonable
control, including Requirements, governmental preemption in connection with a national emergency,
shortages, or unavailability of labor, fuel, steam, water, electricity or materials, Tenant Delay,
delays caused by other tenants or other occupants of the Center, acts of God, enemy action, civil
commotion, fire or other casualty.



B-8









 





EXHIBIT C




NBC RESTRICTIONS




 









 








Declaration of Covenants and Restrictions




          Declaration of Covenants and Restrictions, dated as of July 17, 1996, by and between
RCPI Trust, a Delaware business trust, having an office c/o Tishman Speyer Properties, L.P., 520
Madison Avenue, New York, New York 10022 (“RCPT‘), and National Broadcasting Company, Inc.,
a Delaware corporation, having an office at 30 Rockefeller Plaza, New York, New York 10112
(“NBC”).



Recitals




          Whereas:



          A. Simultaneously herewith, by Bargain and Sale Deed from RCP Associates to RCPT, RCPT has
acquired fee title to certain improved real property located in the City, County and State of New
York, consisting of (i) the land and buildings commonly known as 630 Fifth Avenue, One Rockefeller
Plaza, 50 Rockefeller Plaza, 1270 Avenue of the Americas, Radio City Music Hall, and the private
street known as Rockefeller Plaza, and (ii) certain condominium units located in the improved real
property located in the City, County and State of New York and commonly known as 30 Rockefeller
Plaza, 1250 Avenue of the Americas and the “Studio Building” between and contiguous to both
30 Rockefeller Plaza and 1250 Avenue of the Americas, which units are more particularly described
in Exhibit A to this Declaration (the “RCPT Units”). The Rockefeller Center Tower
Condominium (the “Condominium”) covers all of the land and buildings commonly known as
30 Rockefeller Plaza, 1250 Avenue of the Americas and the Studio Building, which land and buildings
are referred to collectively in this Declaration as the “Condominium Buildings”.



          B. Simultaneously herewith, by Bargain and Sale Deed from RCP Associates to NBC Trust
No. 1996A, a Delaware business trust (the “Trust”). the Trust has acquired (i) fee title to
certain condominium units located in the Condominium Buildings, which units are more particularly
described in Exhibit A to this Declaration (the “NBC Fee Units”), and (ii) the
reversionary interests of RCP Associates in and to fee title to certain other condominium units
located in the Condominium Buildings, which units are more particularly described in
Exhibit A to this Declaration (the “NBC/IDA Units”). (Fee title to the NBC/IDA
Units is currently held and will continue. to be held by the New York City Industrial Development
Agency (the “IDA”), subject to the reversionary interests acquired by the Trust with
respect to such units.) Also simultaneously herewith, by Assignment and Assumption of Lease
between Rockefeller Center Properties (“RCP”) and the Trust, the Trust has. acquired RCP’s
interest as tenant under that certain Overlease Agreement, dated as of December 1, 1988, between
the IDA, as landlord, and RCP, as tenant (as amended from time to time. the “Overlease”),
covering all of the NBC/IDA Units. The NBC Fee Units, together with the NBC/IDA Units and the
Trust’s interest as tenant under the Overlease, are referred to collectively in this Declaration as
the “NBC Units”. Simultaneously herewith, the Trust has entered into (A) that certain
Lease Agreement, covering a portion of the NBC Units, among the Trust, as Lessor, NBC, as Lessee,
and Wilmington Trust Company, as Leasing Trustee (the “NBC/Trust Lease”), and (B) that
certain Lease Agreement, covering the balance of the NBC Units, among the Trust, as Lessor, General
Electric Company, New York corporation (“GE”), as Lessee, and Wilmington Trust Company, as
Leasing Trustee (the “GE/Trust Lease”).



 









 





          C. Simultaneously herewith, by Bargain and Sale Deed from RCP to RCPT, RCPT has acquired fee
title to certain improved real property located in the City, County and State of New York and
commonly known as 1258 Avenue of the Americas.



          D. Simultaneously herewith, by (i) Assignment and Assumption of Lease between RCP and RCPT,
RCPT has acquired the interest of RCP under that certain Amended and Restated Lease, dated as of
the date hereof, between RCP Associates, as landlord, and RCP, as tenant (the “RCPA Ground
Lease”), covering certain improved real property located in the City, County and State of New
York and commonly known as 610 Fifth Avenue, 620 Fifth Avenue, 10 Rockefeller Plaza and 1230 Avenue
of the Americas, and (ii) Assignment and Assumption of Lease, between RCP and RCPT, RCPT has
acquired the leasehold interest of RCP under that certain Lease, dated as of August 23, 1949,
between the Ministers, Elders and Deacons of the Reformed Protestant Dutch Church of The City of
New York, as lessor, and Massachusetts Mutual Life Insurance Company, as lessee, as assigned by
mesne assignments to RCP (the “Church Ground Lease”), covering certain improved real
property located in the City, County and State of New York and commonly known as 600 Fifth Avenue,
New York, New York.



          E. In order to provide for the future operation and maintenance of the Center (as hereinafter
defined), the Center shall be organized into the following parcels, each of which is more
particularly described in Exhibit B to this Declaration (each, a “Parcel”, and
collectively, the “Parcels”):




     (i) Parcel 1: The Condominium Buildings;




     (ii) Parcel 2: 610 Fifth Avenue;




     (iii) Parcel 3: 620 Fifth Avenue;




     (iv) Parcel 4: 630 Fifth Avenue;




     (v) Parcel 5: One Rockefeller Plaza;




     (vi) Parcel 7: 50 Rockefeller Plaza;




     (vii) Parcel 8: 1230 Avenue of the Americas;




     (viii) Parcel 10: 1270 Avenue of the Americas;




     (ix) Parcel 11: 10 Rockefeller Plaza;




     (x) Parcel 17: 600 Fifth Avenue;




     (xi) Parcel 18: Radio City Music Hall;




     (xii) the “Plaza Street Parcel”: the private, non-dedicated portion of the
street area commonly known as Rockefeller Plaza, between 48th Street and 51st Street,



- 2 -









 







including all subsurface improvements and structures appurtenant thereto (the
“Plaza Street”);




     (xiii) the “1258 Sixth Parcel”: 1258 Avenue of the Americas; and




     (xiv) the “Garage Parcel”: the parking garage site located adjacent to
10 Rockefeller Plaza.



          F. Simultaneously herewith, RCPT, the Trust, NBC, the Condominium, RCP Associates and the IDA
have entered into an Operation, Maintenance and Reciprocal Easement Agreement, dated as of the date
hereof (the “REA”), which sets forth certain agreements among the parties thereto with
respect to the improved real property located in the City, County and State of New York and
commonly known as Rockefeller Center (the “Center”). Except as otherwise defined herein,
all capitalized terms used herein shall have the respective meanings given to such terms in the
REA.



          G. In addition to the agreements set forth in the REA, RCPT and NBC wish to provide for
certain use restrictions with respect to certain portions of the Center, as more particularly set
forth in this Declaration.



          ACCORDINGLY, the parties hereto hereby agree as follows:



ARTICLE 1




DEFINITIONS




          1.01 Definitions.



          (a) “Agent” means, at any time, a Person hired as an agent or contractor of a
Competitor (as hereinafter defined) to produce video programming for such Competitor and acting in
such capacity at such time.



          (b) “Broadcast” means the transmission of video programming, including news footage
clips, by any means, including over-the-air television broadcasting, cable television distribution,
SMATV, MMDS, DBS and the like, and including successor distribution technologies which are
comparable to the foregoing but which are not now known, or if known, are not now in use, but not
including teleconferencing, video telephone communications or other similar means of private video
transmission which are not intended for public distribution.



          (c) “Competitor” means any of the following:




          (i) The networks commonly known as CBS, ABC, FOX, UPN, the WB Network and Silverking,
and any other Broadcast network which reaches sixty-five percent (65%) or more of television
households in the United States and which provides at least six (6) hours of network
programming per week;




          (ii) Any cable network (A) as to which sixty-five percent (65%) or more of cable
households in the United States (i.e., households which are capable of



- 3 -









 







receiving programming by cable, satellite or telephone lines or through similar
subscription-type delivery systems) are customers or subscribers, and (B) which is owned
fifty-one per cent (51%) or more by parties who control Broadcast networks, which Broadcast
networks provide at least eighteen (18) hours of network programming per week to television
stations reaching eighty per cent (80%) of television households in the United States;




          (iii) ESPN network, including ESPN II and any future ESPN networks;




          (iv) Any general news and business/financial news cable network which reaches
sixty-five per cent (65%) or more of cable households in the United States;




          (v) Any over-the-air Broadcast station in New York City which displays signs, symbols
or logos commonly identified with such New York City station;




          (vi) The following cable networks:




          (A) Any cable network which is owned at the relevant time of consideration by
Turner Broadcasting System, Inc. (“TBS”), Turner Network Television, Inc.
(“TNT”) or any other entity which, as of April 1, 1996, is under common
control with TBS and TNT, and any successors to the businesses of TBS and TNT (or
controlled subsidiaries thereof) as of such date;




          (B) USA Network;




          (C) The Family Channel; and




          (D) Lifetime.



          (d) “Control” means (a) the ownership, directly or indirectly, of more than fifty per
cent (50%) of the voting stock of a corporation, or (b) in the case of any Person which is not a
corporation, the possession, directly or indirectly, of the power to direct or cause the direction
of the management and policies of such Person.



          (e) “Future Lease” means any lease, license or other occupancy agreement for office,
retail or any other space in the Center which is entered into by any of the Restricted Owners, as
landlord, from and after the date hereof, or, in the case of any such agreement which was entered
into prior to the date of this Declaration, (i) any renewal or extension of the term thereof, other
than pursuant to the exercise by the tenant or other occupant thereunder of a renewal or extension
option which is expressly provided for in an agreement existing prior to the date of this
Declaration and which does not require the consent of the applicable Restricted Owner (or as to
which such Restricted Owner’s ·right of consent has been limited or restricted in any way), or
(ii) any assignment, sublease or modification relating to the use of the premises demised
thereunder, other than an assignment, sublease or modification which is expressly provided for in
an agreement existing prior to the date of this Declaration and which does not require the consent
of the applicable Restricted Owner (or as to which such Restricted Owner’s right of consent has
been limited or restricted in any way).



- 4 -









 





          (f) “Owner” means (i) the Condominium, as to Parcel 1, (ii) as to the NBC Units, the
Unit Owner of the NBC Units, (iii) as to the RCPT Units, the Unit Owner of the RCPT Units, (iv) the
fee owner of each of Parcels 4, 7, 10, 17, the Plaza Street Parcel and the 1258 Sixth Parcel,
(v) the lessee under the RCPA Ground Lease, as to each of Parcels 2, 3, 8, 11 and the Garage
Parcel, and (vi) the lessee under the Church Ground Lease, as to Parcel 17, and each of their
respective successors and assigns from time to time.



          (g) “Permitted Building Areas” means (i) those portions of the Condominium Buildings
which are subject to third party occupancy and control (i.e., areas which are not
occupied or controlled by NBC and which are not open to the public), to the extent that such areas
are located (A) on the ground floor, as shown (by diagonal lines) on Exhibit C to this
Declaration, (B) on the mezzanine above such ground floor space, or (C) on the underground
concourse below the Condominium Buildings, and (ii) the 64th and 65th floors of 30 Rockefeller
Plaza.



          (h) “Person” means any individual, corporation, partnership, limited liability
company, joint venture, estate, trust, unincorporated association, business trust,
tenancy-in-common or other entity, or any federal, state, county or municipal government or any
bureau, department, authority or agency thereof.



          (i) “Protected Zone” means the area consisting of the Plaza, the Plaza Street, the
Channel Gardens, the Center skating rink and certain additional areas ancillary thereto, all as
shown on Exhibit D to this Declaration.



          (j) “Protected Zone Images” means visual images of the Protected Zone.



          (k) “Restricted Owners” means all of the Owners, exclusive of the Owner of the NBC
Units, but including the Owner of the RCPT Units.



          (l) “Studio 1A” means the premises demised to NBC pursuant to the terms of the Studio
lA Lease (as hereinafter defined).



          (m) “Studio lA Lease” means the Lease, dated as of November 1, 1993, between RCP, as
landlord, and NBC, as tenant, demising certain premises in 10 Rockefeller Plaza, currently known as
Studio lA, and located at the southwest corner of Rockefeller Plaza and West 49th Street, as
amended concurrently herewith.



          (n) ’‘Tenant-Competitor” means a tenant under a Future Lease which is a Competitor as
of the date on which such Future Lease is executed or which becomes a Competitor during the term of
such Future Lease (other than as a result of being acquired by, or otherwise becoming an Affiliate
of, a Competitor).



          (o) “Unit Owner” means (a) the Trust, in its capacity as either (i) the owner of the
NBC Fee Units, or (ii) the lessee of the NBC/IDA Units, or any successor owner(s) or lessee(s) with
respect to all or any portion of either the NBC Fee Units or the NBC/IDA Units; and (b) RCPT, in
its capacity as the owner of the RCPT Units, or any successor owner(s) with respect to all or any
portion of the RCPT Units.



- 5 -









 





ARTICLE 2




RESTRICTIVE COVENANTS




          2.01 Covenants Affecting the Restricted Owners.



          (a) Subject to the provisions of Section 2.01 (h), no Restricted Owner shall enter into any
Future Lease unless such Future Lease contains restrictions on certain Broadcast activities, as
more particularly set forth in Sections 2.01 (b), 2.01(c) and 2.01(d), and on the installation and
display of certain images, as more particularly set forth in Sections 2:01(b), 2.01(c) and 2.01(d).
The Future Lease provisions required under Sections 2.01(b), 2.01(c) and 2.01(d) are referred to
collectively in this Declaration as the “Restrictive Lease Provisions”.



          (b) All Future Leases shall include each of the following provisions (or, at the election of
the applicable Restricted Owner, provisions which are more restrictive than the following
provisions):




          (i) No tenant shall have the right to:




          (A) conduct any Broadcast activities from any area of the Condominium Buildings
other than the Permitted Building Areas; provided, however, that no
tenant may conduct any such Broadcast activities from the Permitted Building Areas
on a regular basis;




          (B) conduct any Broadcast activities or video production activities (or display
any signs, symbols or logos commonly identified with such Broadcast or video
production activities) in any ground floor or second floor space within 25 yards
from the 49th Street/Rockefeller Plaza Corner of Studio lA (except that such
distance shall be fifty (50) yards in the due east direction only), unless such
activities are not visible from the street in front of Studio lA or from cameras
normally used, as of the date of this Declaration, for Studio lA Broadcasts; or




          (C) operate any ground floor studio, open and visible to the public from the
exterior of the Condominium Buildings or from any public portion of the Permitted
Building Areas, for the video production or Broadcast of (I) a general news and
interview program (e.g., TODAY, NIGHTLY NEWS or MSNBC Programs), or
(II) a business or financial news program.




          (ii) For so long as NBC occupies the largest aggregate number of Net Rentable Square
Feet in the Condominium Buildings, the tenant shall not install or display any signs,
symbols or logos on the exterior of any of the Condominium Buildings above the second floor
thereof. without such tenant first obtaining the prior written consent of NBC. Any
permitted signs, symbols or logos for Broadcast or video production activities in the Center
(whether displayed on the exterior of the Condominium Buildings or on the exterior of any
other Building in the Center) shall be consistent in size, color and general appearance with
the then current standards for such signs, symbols or logos throughout the Center.



- 6 -









 





          (c) Without limiting the generality of Section 2.01(b), all Future Leases entered into with
Tenant-Competitors shall also include each of the following provisions (or, at the election of the
applicable Restricted Owner, provisions which are more restrictive than the following provisions):




          (i) No Tenant-Competitor shall:




          (A) conduct any Broadcast activities from any area of the Condominium Buildings
(including. but not limited to, the Permitted Building Areas) if such
Tenant-Competitor is a Competitor of the type described in clause (i) or clause (ii)
of the definition of “Competitor” (as set forth in Section 1.01(c));
provided, however, that any Tenant-Competitor which is a Competitor
of the type described in clause (iii), clause (iv), clause (v), or clause (vi) of
the definition of “Competitor” (as set forth in Section 1.01(c)) may conduct
Broadcast activities from within the Permitted Building Areas, so long as such
Broadcast activities (1) are not conducted on a regular basis, and (2) comply with
the restrictions set forth in Sections 2.01(c)(i)(B), 2.01(c)(ii)(A) and
2.01(c)(ii)(B);




          (B) operate in the Protected Zone any ground floor or concourse level Broadcast
or video production studio which is open and visible to the public from the exterior
of the Condominium Buildings;




          (C) install or display in the Protected Zone any signs, symbols or logos
commonly identified with such Tenant-Competitor; or




          (D) install or display on the eastern facade of 30 Rockefeller Plaza any signs,
symbols or logos commonly identified with such Tenant-Competitor.




          (ii) Tenant-Competitors and/or their Agents shall not have any right to:




          (A) use Protected Zone Images in any Broadcast on a regular basis; or




          (B) use Protected Zone Images for Broadcasts which involve the simultaneous
transmission of signs, symbols or logos commonly identified with such
Tenant-Competitor and/or its Agents (it being understood that the term
“simultaneous” shall mean the transmission of such signs, symbols or logos within
one (1) minute immediately prior to or immediately following transmission of such
Protected Zone Images); provided, however, that promotional spots
and station identification messages required by the Federal Communications
Commission or any successor Governmental Authority having jurisdiction over any such
Broadcast shall be permitted within thirty (30) seconds immediately prior to, or
immediately following, the transmission of such Protected Zone Images (or such
shorter periods, not within the reasonable control of the Person(s) making such
Broadcast, as may be required by Legal Requirements).



- 7 -









 





          (d) Each Future Lease shall also provide that if the tenant under such Future Lease is not a
Tenant-Competitor at the commencement of such Future Lease, but becomes a Tenant-Competitor during
the term of such Future Lease (including the initial term or any renewal or extension term of such
Future Lease), as a result of being acquired by, or otherwise becoming an Affiliate of, a
Competitor, then, in such event, (i) the Restrictive Lease Provisions contained in Section 2.01(c)
shall not apply to such tenant during the then current term of such Future Lease, but shall apply
during such term to all activities of the Competitor in question (including the installation or
display by such tenant of signs, symbols or logos commonly identified with such Competitor), and
(ii) the Restrictive Lease Provisions contained in Section 2.01(c) shall apply to such tenant
during the next renewal or extension term (and all succeeding renewal or extension terms, if any)
with respect to such Future Lease. If the tenant under a Future Lease is not a Tenant-Competitor
at the commencement of such Future Lease but such tenant subsequently changes or expands its
business operations so as to become a Competitor during the term of such Future Lease (including
the initial term or any renewal or extension term of such Future Lease), then, in such event, the
Restrictive Lease Provisions contained in Section 2.01(c) shall apply automatically and immediately
to such tenant. All Future Leases shall provide, to the extent permitted under applicable law,
that any sublease effected pursuant to any Future Lease shall contain (and the subtenant under any
such sublease shall be bound by) the Restrictive Lease Provisions.



          (e) Notwithstanding anything set forth in this Declaration to the contrary:




          (i) Nothing contained in this Declaration is intended to prohibit or restrict the
activities of any tenant or other Person, except to the extent that such activities are
expressly prohibited or restricted under Sections 2.01(b), 2.01(c) or 2.01(d);
provided, however, that no Restricted Owner shall give its consent or
approval to the taking of any action by any tenant or other Person (without regard to
whether such tenant or other Person is otherwise subject to the Restrictive Lease
Provisions) if (A) such Restricted Owner has the right to withhold such consent or approval
(and such Restricted Owner’s right of consent or approval has not been limited or restricted
in any way), and (B) the giving of such consent or approval would permit the taking of
actions which would be prohibited by the Restrictive Lease Provisions;




          (ii) Without limiting the generality of clause (i) above, nothing contained in this
Declaration shall be deemed or construed to prohibit or restrict the right of any tenant or
other Person (including, but not limited to, any Tenant-Competitor) to Broadcast in any
manner (or from any area of the Center) any news event or news-related special event or
promotional event which may occur at the Center; provided, however, that the
Operator shall give to NBC the first choice of camera positions with respect to coverage of
any news event or news-related special event, if and to the extent that the giving of such
rights to NBC is within the reasonable control of the Operator;




          (iii) Subject to the provisions of Section 2.01 (c)(ii), any tenant or other Person
(including, but not limited to, any Tenant-Competitor) may Broadcast (and/or communicate by
any other means), at any time and from time to time, the fact that it is located in the
Center;



- 8 -









 






          (iv) (A) The Walt Disney Company shall be permitted to operate a retail store in the
Protected Zone and/or in any (or all) of the Buildings, so long as the lease for such
premises prohibits: (I) the installation or display of signs, symbols or logos commonly
identified with the Broadcast or cable networks or television production studios owned by
The Walt Disney Company or any of its Affiliates (the “TV Logos”; it being
understood that in no event shall the names “Disney”, “Walt Disney” or any derivation
thereof or any symbol or logo associated therewith, including any animated or “live-action”
characters of The Walt Disney Company or any of its Affiliates, be considered a TV Logo);
and (II) the installation, display, sale or promotion of merchandise reflecting the
Broadcast or cable network operations or television production studios owned by The Walt
Disney Company (other than any of the animated or “live-action” characters of The Walt
Disney Company or its Affiliates not accompanied by the TV Logos); and (B) the so-called
“Disney on Ice” production (as a promotion of Disney’s non-Broadcast, non-cable activities)
may be held at the Center up to twice per year and shall be permissible;




          (v) Each of the Restricted Owners shall use good faith commercially reasonable efforts
to enforce the Restrictive Lease Provisions, but no Restricted Owner shall be responsible
for any breach by any tenant of any Restrictive Lease Provision contained in its lease and
no Restricted Owner shall have any obligation to bring a lawsuit against any such tenant
except when requested by NBC to seek specific performance of such provisions (to the extent
that such an action for specific performance would be required under the “good faith
commercially reasonable effort” standard set forth above); provided,
however, that NBC shall pay promptly all attorneys’ fees and costs which may be
incurred by any Restricted Owner in connection with the prosecution, at NBC’s request, of
any such lawsuit; and, provided further, that NBC shall have the right to
approve litigation counsel and strategy in connection with the prosecution of any such
lawsuit at the request of NBC, such approval rights to be exercised in NBC’s reasonable
discretion; and




          (vi) Nothing contained in this Declaration shall be deemed or construed to prohibit or
restrict the activities of tenants of space in the Center under leases in effect as of the
date of this Declaration or otherwise to restrict the rights of any of the Restricted Owners
or any other Person under contracts or agreements in effect as of the date of this
Declaration; provided, however, that no Restricted Owner shall give its
consent or approval to the taking of any action by any tenant or other Person (without
regard to whether such tenant or other Person is otherwise subject to the Restrictive Lease
Provisions) if (A) such Restricted Owner has the right to withhold such consent or approval
(and such Restricted Owner’s right of consent or approval has not been limited or restricted
in any way), and (B) the giving of such consent or approval would permit the taking of
actions which would be prohibited by the Restrictive Lease Provisions.



          (f) Prior to licensing to any third party the right to Broadcast the annual Rockefeller Center
Christmas Tree lighting (or any other ceremony in lieu of the Christmas Tree lighting which may be
Broadcast from the Center, from time to time, in connection with the Christmas holiday season) or
any video programming relating thereto (the “Christmas Tree Broadcast Rights”), the
Restricted Owners shall in good faith negotiate with NBC the terms on



- 9 -









 







which the Restricted Owners would be willing to license such Christmas Tree Broadcast Rights
to NBC. If the Restricted Owners and NBC fail to reach a definitive, final written agreement on
such terms within thirty (30) days after the Restricted Owners commence such good faith
negotiations with NBC, the Restricted Owners shall have no further obligation to NBC with respect
to the Christmas Tree Broadcast Rights and thereafter shall be entitled to license the Christmas
Tree Broadcast Rights to any third party on such terms and conditions as the Restricted Owners may
deem appropriate; provided, however, that if the terms of such license (including
the price or other terms or conditions of such license) are materially more favorable to the
licensee than the terms on which the Restricted Owners previously offered to license such Christmas
Tree Broadcast Rights to NBC (as determined by the Restricted Owners in good faith), then the
Restricted Owners shall notify NBC, in writing, of such determination, and NBC shall have the
right, exercisable within ten (10) days after its receipt of such notice from the Restricted
Owners, to execute and deliver to the Restricted Owners a binding agreement on the same terms as
were offered to such proposed third-party licensee. Notwithstanding anything set forth in this
Declaration to the contrary, the provisions contained in Sections 2.01 (b), 2.01(c) and 2.01(d)
shall not apply to any licensing of Christmas Tree Broadcast Rights effected pursuant to the
provisions of this Section 2.01(f).



          (g) The covenants made by the Restricted Owners in this Declaration are intended for the sole
benefit of NBC and, subject to the provisions of Section 2.01(e)(v), shall be enforceable solely by
NBC, subject, in all events, to the provisions of Section 2.01(h). The covenants made by the
Restricted Owners in this Declaration shall not be enforceable by any successors or assigns of NBC;
provided, however, that any Person which acquires either (i) Control of NBC, or
(ii) all or substantially all of the Broadcasting operations of NBC, shall be entitled to enforce
the rights granted to NBC in this Declaration.



          (h) Notwithstanding anything set forth in this Declaration to the contrary:




          (i) Upon the earlier to occur or (A) the expiration or sooner termination of the Studio
IA Lease (other than by reason of a breach by the landlord thereunder), and (B) such time as
NBC is no longer Broadcasting from Studio 1A, NBC’s right to enforce the restrictions
contained in Sections 2.01(b)(i)(B)-(C), 2.01(c)(i)(B)-(D) and 2.01(c)(ii) (together with
NBC’s right to enforce any corresponding Restrictive Lease Provisions contained in then
existing Future Leases) shall automatically terminate and be of no further force or effect;




          (ii) At such time as NBC is no longer Broadcasting from the Center, NBC’s right to
enforce the restrictions contained in this Section 2.01, together with NBC’s right to
enforce the corresponding Restrictive Lease Provisions contained in then existing Future
Leases, shall automatically terminate and be of no further force or effect, except for the
restrictions contained in Sections 2.01(b)(ii) and 2.01(c)(i)(D);




          (iii) If NBC shall continue to Broadcast from the Center and its occupancy is less than
700,000 Net Rentable Square Feet of space in the Center (inclusive of the premises demised
to NBC pursuant to the Studio 1A Lease), but more than 300,000 Net Rentable Square Feet of
space in the Center (inclusive of the ·premises demised to NBC pursuant to the Studio lA
Lease), then NBC’s right to enforce the



- 10 -









 







restrictions contained in this Section 2.01 (together with NBC’s right to enforce the
corresponding Restrictive Lease Provisions contained in then existing Future Leases) shall
automatically terminate and be of no further force or effect, except for the restrictions
contained in Sections 2.01(b)(ii), 2.01(c)(i)(D), 2.0 I(e)(i)-(iv)(A) and 2.01(f);




          (iv) Notwithstanding anything set forth in this Section 2.01(h) to the contrary, if
NBC’s occupancy falls below 300,000 Net Rentable Square Feet of space in the Center
(inclusive of the premises demised to NBC pursuant to the Studio lA Lease), then NBC’s right
to enforce the restrictions contained in this Section 2.01 (together with NBC’s right to
enforce the corresponding Restrictive Lease Provisions contained in then existing Future
Leases) shall automatically terminate and be of no further force or effect; and




          (v) At such time as any (or all) of the restrictions contained in this Section 2.01 (or
any of the Restrictive Lease Provisions contained in any then existing Future Leases) shall
be terminated pursuant to, and in accordance with, this Section 2.01(h), then, in such
event, NBC hereby agrees to deliver to RCPT a written instrument in recordable form
acknowledging that NBC’s right to enforce such restrictions (together with NBC’s right to
enforce the corresponding Restrictive Lease Provisions contained in then existing Future
Leases) have terminated and are of no further force or effect.




          
(i) Each of the Restricted Owners shall have the right, at any time and from time to
time, upon not less than ten (10) days’ prior Written notice (addressed to both NBC’s
Controller, and its Senior Vice President or Executive Vice President in charge of Broadcast
Operations), to request that NBC certify as to whether a particular Person is or is not then
a Competitor for purposes of this Declaration, and the Restricted Owner making such request
(as well as the Person which is the subject of the inquiry) shall have the right, for
purposes of this Declaration, to rely upon the certification which is’ given by NBC, it
being understood that any failure on the part of NBC to respond to any such request for
certification within five (5) business days after NBC’s receipt of such request shall be
treated as a certification by NBC that the Person in question should not be treated as a
Competitor.



ARTICLE 3

ARTICLE 3 AGREEMENT TO RUN WITH THE LAND 




          It is the intention of the parties hereto that this Declaration, and all of the covenants and
restrictions imposed upon the Restricted Owners pursuant to this Declaration, shall run with the
land affected thereby, and shall apply to and bind the successors (whether by operation of law or
otherwise) and assigns of the respective Restricted Owners. Without limiting the generality of the
foregoing, it is the intention of all of the Owners that all mortgagees-in-possession, receivers,
purchasers at foreclosure sales or grantees pursuant to deeds or assignments in lieu of
foreclosure, and all of their respective successors and assigns (whether by operation of law or
otherwise, and including the City of New York or any other Governmental Authority), shall be bound
by, and shall in all events take its or their interests in the Center subject to, all of the
covenants and restrictions imposed on the Restricted Owners by this Declaration.



- 11 -









 





ARTICLE 4

RIGHTS OF MORTGAGEES 




          The lien of all Mortgages affecting any Parcel or Parcels owned by any Restricted Owner shall
at all times be subject and subordinate to all of the terms, covenants, conditions and obligations
set forth in this Declaration, and to any amendments or modifications hereof. Any Mortgagee with
respect to any such Parcel or Parcels, provided that NBC shall be given a Notice containing the
name and address of such Mortgagee, shall be entitled to (a) receive simultaneous copies of all
Notices delivered to the Owner of such mortgaged Parcel(s) by NBC pursuant to, or in connection
with, this Declaration, and (b) cure on behalf of such Owner any failure by such Owner to perform
any obligation on the part of such Owner to be performed hereunder, provided that such cure shall
be accomplished by such Mortgagee within the time period allowed to the defaulting Owner hereunder.



ARTICLE 5

LIMITATION ON REMEDIES 




          The sole remedy for any breach of any covenant or restriction set forth in this Declaration
shall be declaratory or injunctive relief, and NBC shall not have any right to seek or obtain
damages at law for any breach of any such covenant or restriction; provided,
however. that NBC shall have the right to seek and obtain damages at law against a
Restricted Owner upon the third or any later separate breach, in a similar manner, of any covenant
or restriction contained in this Declaration if (and only if) (i) NBC shall have given notice to
such Restricted Owner of such similar breach in each instance, and (ii) with respect to at least
one (1) such similar breach occurring prior to a breach for which damages at law shall be sought,
NBC shall have obtained (prior to the occurrence of such breach for which damages at law shall be
sought) a preliminary injunction (as distinguished from a temporary restraining order) or a
declaratory judgment from a court of competent jurisdiction (which injunction or judgment shall not
have been reversed, overturned on appeal or vacated prior to the date upon which NBC files its
suit, action or proceeding seeking damages against a Restricted Owner) that such Restricted Owner
did so breach the covenant or restriction in question (any such injunction or judgment, a
“Determination”) it being understood that the pendency of an appeal or motion to vacate at the time
of such filing by NBC or any later reversal or decision on such appeal or motion to vacate shall
have no effect on NBC’s right to seek or obtain such damages. It is further understood and agreed
that (a) a written agreement or acknowledgment from a Restricted Owner stating that such Restricted
Owner breached any covenant or restriction contained in this Declaration shall be deemed to
constitute a Determination with respect to such breach, and (b) each Restricted Owner hereby agrees
that in connection with any declaratory or injunctive relief sought by NBC hereunder, such
Restricted Owner shall waive its right to raise or assert (and shall not raise or assert), as a
defense or otherwise, in any such action for declaratory or injunctive relief, that the alleged
breach in controversy is not justiciable because the dispute at issue has become moot, or because
the act, omission, or conduct which gave rise to such action is no longer continuing or will not
occur in the future.



- 12 -









 





ARTICLE 6

NOTICES




          All notices, approvals, consents, elections, requests or other communications required or
permitted to be given under this Declaration (“Notices”) must be in writing and may be (a)
delivered personally, (b) delivered by a nationally recognized overnight courier, (c) mailed by
registered or certified mail, postage prepaid, with return receipt requested, or (d) sent by
telecopier (with written confirmation of the receipt of the telecopy). with the original to follow
in the manner specified in clauses (a), (b) or (c) above, and addressed to each of the parties
hereto at the respective addresses set forth in the first paragraph of this Declaration, or at such
other address as from time to time shall be supplied by either party hereto by like Notice. Notices
will be deemed to be received, (i) if personally delivered, upon delivery, (ii) if sent by
overnight courier, on the first (1st) Business Day after being sent, (iii) if sent by mail, on the
date set forth on the return receipt, and (iv) if sent by telecopier, on the date sent, if
confirmation of receipt shows delivery on or before 5:00 P.M., or on the next Business Day, if
confirmation of receipt shows delivery after 5:00 P.M. Each party hereto shall be entitled to rely
on all communications which purport to be on behalf of any other party and which purport to be
signed by such party. Each of the parties hereto may require that a copy of all Notices be sent to
its attorney and up to two other addressees if designated by Notice given either simultaneously
with the execution hereof or as aforesaid, provided that such copies of Notices shall be, deemed
courtesy copies only, and the failure of any such parties to receive any Notice shall not in any
manner render the giving of such Notice ineffective against any party to this Declaration.



ARTICLE 7

MISCELLANEOUS




          7.01 If any term or provision of this Declaration or the application thereof to any Person or
circumstances shall, to any extent, be held to be invalid or unenforceable, the remainder of this
Declaration, or the application of such term or provision to other Persons or circumstances, shall
not be affected thereby, and each other term and provision of this Declaration shall be valid, and
shall be enforced to the fullest extent permitted by applicable law.



          7.02 All understandings and agreements heretofore had between the parties hereto with respect
to the subject matter of this Declaration are merged in this Declaration, which alone fully and
completely expresses their agreement with respect to the subject matter hereof.



          7.03 This Declaration may not be modified, amended or terminated, nor may any of its
provisions be waived, except in a writing signed by NBC and each of the Restricted Owners.



          7.04 This Declaration shall be governed by, and construed and enforced in accordance with the
laws of the State of New York, without the aid of any canon, custom or rule of law requiring
construction against the party drafting or causing the drafting of the provision in question.



          7.05 NBC and each of the Restricted Owners agrees to do such other and further acts and
things, and to execute and deliver such instruments and documents, as NBC or



- 13 -









 





any Restricted Owner may reasonably request, from time to time, to effect the intent and
purposes of this Declaration.



          7.06 The table of contents and headings contained in this Declaration are for reference
purposes only, and shall not affect in any way the meaning or interpretation of this Declaration.
All references to Articles and Sections shall be deemed to refer to the Articles and Sections of
this Declaration. Whenever the words “include”, “includes”, or “including” are used in this
Declaration, they shall be deemed to be followed by the words “without limitation”. All exhibits
referred to in and attached to this Declaration are incorporated herein and by this reference are
made a part hereof.



          IN WITNESS WHEREOF, the parties hereto have executed or caused this Declaration to be executed
as of the date first set forth above.



	 	 	 	 	 
	 	Rcpi Trust 

 	 
	 	By:  	/s/ Geoffrey P. Wharton 	 
	 	 	Name:  	Geoffrey P. Wharton 	 
	 	 	Title:  	Vice President 	 
	 
	 	National Broadcasting Company, Inc.

 	 
	 	By:  	/s/ Warren C. Jenson 	 
	 	 	Name:  	Warren C. Jenson 	 
	 	 	Title:      Senior Vice President 	 
	 




- 14 -









 





Exhibits




	 	 	 
	Exhibit A:

	 	Description of the Condominium and the Parcels
	 
	 	 
	Exhibit B:

	 	Annotated Diagram of Rockefeller Center
	 
	 	 
	Exhibit C:

	 	Diagram of the Permitted Building Areas
	 
	 	 
	Exhibit D:

	 	Diagram of the Protected Zone






- 15 -









 





Exhibit A




Description of the Condominium and Parcel 1



BLOCK 1265 LOTS 1001-1109 (F/K/A BLOCK 1265 LOT 1)



The condominium units (the “Units”) in the Condominium Buildings, in Rockefeller Center in the
Borough of Manhattan, City, County and State of New York, which Units are designated and described
in the Declaration Establishing a Plan for Condominium Ownership of Premises under Article 9-B of
the Real Property Law of the State of New York (the New York Condominium Act), dated as of December
1, 1988 (the “Declaration”) and recorded on December 19, 1988 in the Office of the City Register
for New York County (the “Register’s Office”) in Reel 1509, Page 989. The Units are designated as
Tax Lots 1001 through 1109 in Block 1265 of Section 5, in the Borough of Manhattan on the Tax Map
of the Real Property Assessment Department of the City of New York, and are shown on the floor
plans of the Condominium Buildings, certified by the Register’s Office on the 19th day of December,
1988, as Condominium Plan No. 4845. The Land upon which the Condominium Buildings are located is more
particularly described as follows:



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



BEGINNING at the intersection of the northerly side of 49th Street and the easterly side of Avenue
of the Americas;



RUNNING THENCE easterly along the northerly side of 49th Street 545 feet 0 inches to the westerly
side of Rockefeller Plaza;



THENCE northerly along the westerly side of Rockefeller Plaza 200 feet 10 inches to the southerly
side of 50th Street;



THENCE westerly along the southerly side of 50th Street 478 feet 6-1/2 inches;



THENCE southerly parallel with the easterly side of Avenue of the Americas 25 feet 4-1/2 inches;



THENCE westerly parallel with 50th Street and partly through a party wall 66 feet 5-1/2 inches to
the easterly side of Avenue of the Americas;



THENCE southerly along the easterly side of Avenue of the Americas 175 feet 5-1/2 inches to the
northerly side of 49th Street the point or place of BEGINNING.



TOGETHER WITH a non-exclusive easement for pedestrian access to the Condominium Buildings over the
land described as follows:



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




- 16 -









 







BEGINNING at a point (hereinafter, “Point A”) on the southerly side of West 50th Street
distant 545 feet easterly from the corner formed by the intersection of the easterly side of Avenue
of the Americas with the southerly side of 50th Street;



THENCE southerly at right angles with West 50th Street 200 feet 10 inches to a point at the
northerly side of 49th Street (hereinafter, “Point B”); .



THENCE easterly along the northerly side of 49th Street, 60 feet to a point (hereinafter,
(“Point C”);



THENCE northerly at right angles with West 49th Street 200 feet 10 inches to the southerly side of
50th Street;



THENCE westerly along the southerly side of 50th Street, 60 feet to the point or place of
BEGINNING.



Which lies above a plane located at an elevation at Point A of 65.87 feet, at Point B of 63.47 feet
and at Point C of 63.75 feet.



Elevations refer to the datum in use by the department of Highways, Borough of Manhattan, which is
2.75 feet above the U.S. Coast and Geodetic Survey datum of mean sea level at Sandy Hook.”



TOGETHER with the common elements appurtenant to each unit as set forth in the Declaration of
Condominium.




- 17 -









 





Description of the RCPT Units




	 	 	 	 	 	 	 	 	 	 	 
	 	 	TAX	 	 	 	TAX
	UNIT	 	LOT	 	UNIT	 	LOT
	Additional Unit SB/l

	 	 	1002	 	 	Additional Unit 44/1
	 	 	1048	 
	Additional Unit CON/1

	 	 	1003	 	 	Additional Unit 45/1
	 	 	1049	 
	RGI Unit 1/1

	 	 	1004	 	 	Tower Unit 50/1
	 	 	1054	 
	Additional Unit MEZZ/1

	 	 	1005	 	 	Additional Unit 54/1
	 	 	1058	 
	Additional Unit 19/1

	 	 	1023	 	 	Additional Unit 55/1
	 	 	1059	 
	Additional Unit 20/1

	 	 	1024	 	 	Additional Unit 56/1
	 	 	1060	 
	Additional Unit 24/1

	 	 	1028	 	 	Additional Unit 57/1
	 	 	1061	 
	Additional Unit 27/1

	 	 	1031	 	 	Additional Unit 58/1
	 	 	1062	 
	Additional Unit 28/1

	 	 	1032	 	 	Additional Unit 59/1
	 	 	1063	 
	Additional Unit 29/1

	 	 	1033	 	 	Additional Unit 60/1
	 	 	1064	 
	Additional Unit 30/1

	 	 	1034	 	 	Additional Unit 61/1
	 	 	1065	 
	Additional Unit 31/1

	 	 	1035	 	 	Additional Unit 62/1
	 	 	1066	 
	Additional Unit 32/1

	 	 	1036	 	 	Additional Unit 63/1
	 	 	1067	 
	Additional Unit 33/1

	 	 	1037	 	 	Additional Unit 64/1
	 	 	1068	 
	Additional Unit 34/1

	 	 	1038	 	 	Additional Unit 65/1
	 	 	1069	 
	Additional Unit 35/1

	 	 	1039	 	 	Additional Unit 66/1
	 	 	1070	 
	Additional Unit 3611

	 	 	1040	 	 	Additional Unit 67/1
	 	 	1073	 
	Additional Unit 37/1

	 	 	1041	 	 	Additional Unit 69/1
	 	 	1074	 
	Additional Unit 38/1

	 	 	1042	 	 	Additional Unit CON/S
	 	 	1076	 
	Additional Unit 39/1

	 	 	1043	 	 	Additional Unit CM/S
	 	 	1077	 
	Additional Unit 40/1

	 	 	1044	 	 	Additional Unit 1/S
	 	 	1080	 
	Additional Unit 41/1

	 	 	1045	 	 	Additional Unit 1M/S
	 	 	1081	 
	Additional Unit 42/1

	 	 	1046	 	 	Additional Unit CON/9
	 	 	1092	 
	Additional Unit 43/1

	 	 	1047	 	 	Additional Unit 1/9
	 	 	1093	 






- 18 -









 






Description
of the NBC Fee Units




	 	 	 	 	 
	 	 	TAX
	UNIT	 	LOT
	Additional Unit 22/1

	 	 	1026	 
	Additional Unit 23/1

	 	 	1027	 
	Tower Unit 49/1

	 	 	1053	 






- 19 -









 






Description of the NBC/IDA Units




	 	 	 	 	 	 	 	 	 	 	 
	UNIT	 	TAX LOT	 	UNIT	 	TAX LOT
	Tower Unit SB/1

	 	 	1001	 	 	Studio-RCA West Unit SB/S
	 	 	1075	 
	Tower Unit 2/1

	 	 	1006	 	 	Studio-RCA West Unit CM/S
	 	 	1078	 
	Additional Unit 2/1

	 	 	1007	 	 	Studio-RCA West Unit 1/S
	 	 	1079	 
	Tower Unit 3/1

	 	 	1008	 	 	Studio-RCA West Unit IM/S
	 	 	1082	 
	Tower Unit 4/1

	 	 	1009	 	 	Studio-RCA West Unit 2/S
	 	 	1083	 
	Tower Unit 5/1

	 	 	1010	 	 	Studio-RCA West Unit 3/S
	 	 	1084	 
	Tower Unit 6/1

	 	 	1011	 	 	Studio-RCA West Unit 4/S
	 	 	1085	 
	Tower Unit 7/1

	 	 	1012	 	 	Studio-RCA West Unit 5/S
	 	 	1086	 
	Tower Unit 8/1

	 	 	1013	 	 	Studio-RCA West Unit 6/S
	 	 	1087	 
	Tower Unit 9/1

	 	 	1014	 	 	Studio-RCA West Unit 7/S
	 	 	1088	 
	Tower Unit 10/1

	 	 	1015	 	 	Studio-RCA West Unit 8/S
	 	 	1059	 
	Tower Unit 11/1

	 	 	1016	 	 	Studio-RCA West Unit 9/S
	 	 	1090	 
	Tower Unit 12/1

	 	 	1017	 	 	Studio-RCA West Unit 10/S
	 	 	1091	 
	Tower Unit 141

	 	 	1018	 	 	Studio-RCA West Unit IM/9
	 	 	1094	 
	Tower Unit 151

	 	 	1019	 	 	Studio-RCA West Unit 2M/9
	 	 	1095	 
	Tower Unit 161

	 	 	1020	 	 	Studio-RCA West Unit 2/9
	 	 	1096	 
	Tower Unit 171

	 	 	1021	 	 	Studio-RCA West Unit 3/9
	 	 	1097	 
	Tower Unit 18/1

	 	 	1022	 	 	Studio-RCA West Unit 4/9
	 	 	1098	 
	Additional Unit 21/1

	 	 	1025	 	 	Studio-RCA West Unit 5/9
	 	 	1099	 
	Additional Unit 25/1

	 	 	1029	 	 	Studio-RCA West Unit 6/9
	 	 	1100	 
	Additional Unit 26/1

	 	 	1030	 	 	Studio-RCA West Unit 7/9
	 	 	1101	 
	Tower Unit 46/1

	 	 	1050	 	 	Studio-RCA West Unit 8/9
	 	 	1102	 
	Tower Unit 47/1

	 	 	1051	 	 	Studio-RCA \Vest Unit 9/9
	 	 	1103	 
	Tower Unit 48/1

	 	 	1052	 	 	Studio-RCA West Unit 10/9
	 	 	1104	 
	Tower Unit 51/1

	 	 	1055	 	 	Studio-RCA West Unit 11/9
	 	 	1105	 
	Tower Unit 52/1

	 	 	1056	 	 	Studio-RCA \Vest Unit 12/9
	 	 	1106	 
	Tower Unit 53/1

	 	 	1057	 	 	Studio-RCA West Unit 14/9
	 	 	1107	 
	Tower Unit 66/1

	 	 	1071	 	 	Studio-RCA West Unit 15/9
	 	 	1108	 
	Tower Unit 67/1

	 	 	1072	 	 	Studio-RCA West Unit 16/9
	 	 	1109	 






- 20 -









 






Exhibit B




Annotated Diagram of Rockefeller Center




- 21 -









 





Exhibit C




Diagram of the Permitted Building Areas




- 22 -









 





Exhibit D




Diagram of the Protected Zone




- 23 -









 





EXHIBIT D-1




CHILLED WATER SPECIFICATION




     (a) Landlord shall provide to Tenant, without charge, chilled water to the Music Hall to be
utilized by Tenant up to the existing design capacities of 1270 Avenue of the Americas and the
Music Hall to cool 1270 Avenue of the Americas and the Music Hall, based on the demand requirements
of 1270 Avenue of the Americas and the Music Hall, limited to the design capacity of the HVAC plant
serving the Center (the “Central Plant”) year round.



     (b) Tenant shall, at its own expense, provide supplemental chilled water to 1270 Avenue of the
Americas, without charge, when the Central Plant exceeds its existing design capacity during the
peak cooling season. Tenant shall be given access to monitor the Central Plant’s load through the
current environmental control system.



     (c) Tenant shall utilize, operate and fully maintain the Refrigeration Plant within the Music
Hall; and Tenant, at its own expense, shall enter into an annual maintenance contract reasonably
satisfactory to Landlord with an HVAC contractor from a list of approved HVAC contractors to be
provided by Landlord to Tenant at Tenant’s request, and Tenant shall pay costs in connection with
such contract.



     (d) Tenant shall maintain in good working order all heat exchangers and pumps associated with
the operation and distribution of chilled water to 1270 Avenue of the Americas, year round, without
charge to Landlord.




D - 1 - 1









 








EXHIBIT D-2




1270 SPACE CHILLED WATER SPECIFICATION




          Landlord shall provide to Tenant for the 1270 Space chilled water in sufficient quantity such
that if Tenant installs the appropriately sized and appropriate quality HVAC equipment, such
equipment shall be capable of maintaining 78 degrees Fahrenheit when summer outdoor conditions are
92 degrees Fahrenheit dry bulb and 74 degrees Fahrenheit wet bulb. The HVAC shall be capable of
maintaining 68 degrees Fahrenheit at winter outdoor conditions of 11 degrees Fahrenheit. The HVAC
System shall be capable of handling (i) an electrical usage load of 4 watts per usable square foot;
(ii) an occupancy rate of one (1) person per 150 usable square feet; and (iii) a ventilation
make-up rate of 20 cubic feet per minute per person with the blinds or shades drawn on the exposure
subject to direct solar radiation.



D - 2 - 1









 




EXHIBIT
E



INTENTIONALLY
OMITTED


E-1








 





EXHIBIT F




RETAIL OFFER SPACE COVENANTS




          The business to be conducted at, through and from the Offer Space and the kind and quality of
the merchandise and services offered in the conduct thereof shall be first class and the sales
methods employed and all other elements of merchandising, display and advertising, shall be
dignified and in conformity with the highest standards of practice of stores, shops and concerns
dealing in the same or similar merchandise or conducting a similar business in the Center or the
Fifth Avenue shopping district adjacent thereto.



          Clean the windows and doors (including, in each ease, the frames thereof) in the Offer Space
and in the perimeter walls thereof, in accordance with any applicable Requirements, whenever
necessary to maintain such items in a first-class condition.



          Keep the Offer Space clean and sanitary; not permit garbage or waste materials to accumulate
or become a nuisance; seal all refuse in plastic bags of adequate strength and size; maintain all
garbage dumpsters in a clean and sanitary condition; remove all rubbish and other debris from the
Offer Space to such location as may be specified by Landlord from time to time and under conditions
approved by Landlord.



          Keep all glass in the Offer Space and in the perimeter walls thereof, the frames for such
glass, and any lettering and ornamentation on such glass insured against damage (including
temporary repairs) for the benefit of Landlord for the full replacement value thereof. Such
insurance shall be effected, at the option of Landlord, either by Tenant paying to Landlord a
proportionate share of the premium incurred by Landlord for a blanket comprehensive glass policy
for the Building or the Center, or by



F - 1









 







Tenant furnishing Landlord with a separate policy or policies for such glass insurance, in
such form and placed with such underwriters as may be approved by Landlord. If Landlord elects to
obtain such insurance, then Tenant shall pay to Landlord Tenant’s proportionate share of Landlord’s
blanket premium within 10 days after demand therefor, and promptly following such payment, Landlord
shall furnish Tenant with a certificate of such insurance.



          Completely renovate and remodel the Offer Space and install a new storefront sign and trade
fixtures in accordance with the other provisions of this Lease, occupy and open the entire Offer
Space for the conduct of Tenant’s business as soon as the Offer Space Commencement Date has
occurred, and thereafter keep the entire Offer Space open for business during all Business Hours,
plus any additional hours as retail premises are generally open for business at the Center.



          Adequately staff the Offer Space with sufficient, well-trained employees to handle the
business therein, and carry sufficient stock of seasonal merchandise of such size, character and
quality as to maintain an adequate sales volume in the Offer Space.



          Not install or place any lettering, sign, advertisement or notice on the windows or doors or
on the exterior of the Offer Space or within 3 feet of any display window or entrance of the Offer
Space which is not (i) approved in writing by Landlord prior to installation and (ii) in conformity
with Landlord’s standard sign and store front program for the Center, if any, as such program may
be reasonably modified by Landlord from time to time by notice to Tenant. On or before the
expiration or earlier termination of this Lease, Tenant shall remove all lettering, signs,
advertisements and notices from the Offer Space.



          Not install, place or permit any awning or canopy on the perimeter walls of the Offer Space
unless provided or approved by Landlord in its sole discretion and if



F - 2









 







so provided or approved, keep each such awning or canopy clean and in good order, repair and
appearance to Landlord’s reasonable satisfaction.



          From time to time during the Term, redecorate the Offer Space and refinish, renew or replace
the fixtures, furnishings, decorations and equipment therein as may be necessary, in Landlord’s
reasonable judgment, to preserve the good appearance of the Offer Space in keeping with the general
standard maintained in similar areas in the Center.



          Promptly after the Offer Space Commencement Date and at all times during the Term, install and
maintain displays in all windows in the Offer Space, including windows facing the lobby of 1270
Avenue of the Americas, if any. All such displays and all exhibits, announcements, lettering,
lighting, and other appurtenances used in such connection shall be maintained in a first-class
manner consistent with the Center. Tenant shall promptly after notice from Landlord remove from
the Offer Space any displays which fail to meet the standards set forth in this subsection,
in Landlord’s sole judgment, and if Tenant fails to promptly remove such display within 24 hours
after notice from Landlord, Landlord may perform such work on Tenant’s behalf, and Tenant shall pay
all costs and expenses incurred by Landlord in so doing, as provided in Article 21. On or
before the expiration or earlier termination of this Lease, Tenant shall remove all displays from
the Offer Space.



          At all times during the Term, keep the lights lit which illuminate those shop windows on the
street and mezzanine levels facing the street during non-daylight hours (beginning at least one
hour prior to sunset).



          Maintain a contract to have the door and brass signage above the exterior of the Offer Space
polished semi-annually in a manner satisfactory to Landlord, submit maintenance records with
respect to such metal maintenance to the manager of 1270



F - 3









 







Avenue of the Americas and on a semi-annual basis, and make such maintenance records available
for review by such manager upon request at all times during the Term. If Tenant fails to comply
with the provisions of this subsection within 5 days after notice from Landlord, Landlord
may perform such work on Tenant’s behalf, and Tenant shall pay all costs and expenses incurred by
Landlord in so doing, as provided in Article 21. The polishing of such doors and brass
signage shall be done by Landlord’s designated contractor, provided such contractor’s rates are
reasonably competitive with rates of other reputable contractors providing such services to
comparable first-class buildings in midtown Manhattan. If Tenant shall dispute whether Landlord’s
designated contractor’s rates are competitive, it shall so notify Landlord in writing and include
with its notice a bona fide firm bid from another comparable, reputable contractor to perform such
services at a rate which is more than 10% less than Landlord’s designated contractor. Provided
such bid is bona fide and from a comparable, reputable contractor, Landlord’s designated contractor
shall within thirty (30) days thereafter reduce its charges so that its charges are not more than
10% greater than that of Tenant’s proposed contractor or Landlord shall not unreasonably withhold
or delay its consent to Tenant’s use of its proposed contractor to provide such services. Any
contract entered into by Tenant shall be for a period of no more than one year at which time
Landlord’s designated contractor shall again be afforded an opportunity to bid on such work and
shall be awarded such work unless its bid is more than 10% higher than the contractor previously
selected by Tenant.



          Provide and maintain in good working order during the Term a security system adequate to
provide reasonable protection to the Offer Space, including a 24-hour direct response smoke, fire
and burglary alarm system. If Tenant employs security guards at the Offer Space, under no
circumstances shall such security guards



F - 4









 







carry firearms of any kind. Tenant understands that Landlord shall not provide Tenant with
any security guards or alarm or security systems of any kind or nature, and shall have no liability
or obligation to Tenant arising from any claims for loss, injury or damage to persons or property
in connection therewith.



          As soon as practicable and in any event within 24 hours after any exterior or interior glass
(including mirrors) is broken or cracked, including any so-called “bull’s-eye” break in the glass,
replace such glass with glass of the same kind and quality, and repair or replace the frames for
such glass if necessary or desirable in Landlord’s reasonable judgment, and if Tenant fails to do
so within 24 hours after notice from Landlord, Landlord may perform such work on Tenant’s behalf,
and Tenant shall pay all costs and expenses incurred by Landlord in so doing, as provided in
Article 21.



          Not conduct any clearance, “going-out-of-business”, auction, distress, fire or bankruptcy or
similar sale in the Offer Space, other than seasonal, promotional or other special sales as are
incident to the normal operation of Tenant’s business.



          Place no fixtures, furnishings, decorations or equipment in the Offer Space at any time during
the Term which can be seen from the outside of the Offer Space, without the prior written approval
of Landlord in each instance, such approval not to be unreasonably withheld. Tenant shall remove
from the Offer Space any such items installed without Landlord’s approval, and if Tenant fails to
do so within 24 hours after notice from Landlord, Landlord may perform such work on Tenant’s
behalf, and Tenant shall pay all costs and expenses incurred by Landlord in so doing, as provided
in Article 21. On or before the expiration or earlier termination of this Lease, Tenant
shall remove all fixtures, furnishings, decorations and equipment from the Offer Space.



          Not remove any trade fixtures or other contents of the Offer Space (other than inventory)
prior to the Expiration Date without the prior consent of Landlord (which



F - 5









 







consent shall not be unreasonably withheld), except that Tenant may remove trade fixtures so
long as Tenant promptly installs replacement trade fixtures at least equal in quality, value and
function to those being removed.



          Not (1) place or maintain any merchandise or other articles in any area outside of the Offer
Space, or on the sidewalks, corridors or other common areas of the Center, nor (2) receive or ship
articles of any kind outside the designated loading areas for the Offer Space, nor (3) permit the
parking of vehicles so as to interfere with the use of any driveway, corridor, footwalk, parking
area or other common area of the Center.



          Direct all patrons to enter and leave the Offer Space through the separate exterior door
exclusively serving the Offer Space.



          Cause all of its staff and employees to enter and exit the Offer Space at all times through
the separate exterior door exclusively serving the Offer Space.



          Not use, play or operate or permit to be used, played or operated any sound making or sound
reproducing device in the Offer Space, if such sound can be heard outside of the Offer Space, and
observe, comply with and adopt such means and precautions as Landlord may from time to time request
in such connection.



          Not install or use any lighting equipment in or about the Offer Space which is visible from or
casts light toward the exterior of the Offer Space without the prior written consent of Landlord.



          If any catalog, mail or telephone order sales are made in or from the Offer Space, not store
on or ship from the Offer Space any merchandise sold in such manner.



          The Offer Space may not be used for the sale of items which would violate any “exclusive”
granted by Landlord to another retail tenant in the Center.



          Tenant understands and agrees that a breach by Tenant of any of the provisions of Article
37 and the covenants set forth in this Exhibit F shall be deemed a



F - 6









 







material breach of this Lease and considered an Event of Default hereunder. Tenant
acknowledges that damages resulting from any breach of the provisions of Article 37 and the
covenants set forth in this Exhibit F are difficult, if not impossible, to ascertain and
concedes that, among other remedies for such breach permitted by law or the provisions of this
Lease, Landlord shall be entitled to seek to enjoin Tenant from any violation hereof.



F - 7









 




EXHIBIT
G



STUDIO
APARTMENT FLOOR PLAN


G-1








 





EXHIBIT H




RULES AND REGULATIONS




          1. The rights of Tenant in the sidewalks, entrances, corridors, stairways, elevators and
escalators of the Ancillary Buildings are limited to ingress to and egress from the Ancillary Space
for Tenant and any other Tenant Party, and Tenant shall not invite to the Ancillary Space, nor
permit the visit thereto by, persons in such numbers or under such conditions as to interfere with
the use and enjoyment by others of the sidewalks, entrances, corridors, stairways, elevators,
escalators or any other facilities of the Ancillary Buildings. Fire exits and stairways are for
emergency use only, and they shall not be used for any other purpose by any Tenant Party. Landlord
shall have the right to regulate the use of and operate the public portions of the Ancillary
Buildings, as well as portions furnished for the common use of the tenants, in such manner as it
deems best for the benefit of the tenants generally.



          2. Landlord may refuse admission to the Ancillary Buildings outside of Business Hours to any
person not having a pass issued by Landlord, the necessary items to gain admission to the Club or
otherwise not properly identified, and may require all persons admitted to or leaving the Ancillary
Buildings outside of Business Hours, with the exception of patrons of the Club, to register. Any
person whose presence in the Ancillary Buildings at any time shall, in the judgment of Landlord, be
prejudicial to the safety, character, reputation and interests of the Ancillary Buildings or of its
tenants may be denied access to the Ancillary Buildings or may be ejected therefrom. In case of
invasion, riot, public excitement or other commotion, Landlord may prohibit all access to the
Ancillary Buildings during the continuance of the same, by closing doors or otherwise, for the
safety of the tenants or protection of property in the Ancillary Buildings. Landlord shall, in no
way, be liable to Tenant for damages or loss arising from the



H - 1









 







admission, exclusion or ejection of any person to or from the Ancillary Space or the Ancillary
Buildings under the provisions of this rule. Landlord may require any person leaving the Ancillary
Buildings with any package or other object to exhibit a pass from Tenant from whose Ancillary Space
the package or object is being removed, but the establishment or enforcement of such requirement
shall not impose any responsibility on Landlord for the protection of Tenant against the removal of
property from the Ancillary Space of Tenant.



          3. Where any damage to the public portions of the Ancillary Buildings or to any portions used
in common with other tenants is caused by any Tenant Party, the cost of repairing the same shall be
paid by Tenant upon demand.



          4. No lettering, sign, advertisement, trademark, emblem, notice or object shall be displayed
in or on the windows or doors, or on the outside of the Ancillary Space, or at any point inside the
Ancillary Space where the same might be visible outside the Ancillary Space, except that the name
of Tenant may be displayed on the entrance door of the 1270 Space, subject to the approval of
Landlord as to the location, size, color and style of such display.



          5. No awnings or other projections of any kind over or around the windows or entrances of the
Ancillary Space shall be installed by Tenant, and only such window blinds and shades as are
approved by Landlord shall be used in the Ancillary Space. Linoleum, tile or other floor covering
shall be laid in the Ancillary Space only in a manner approved by Landlord.



          6. Landlord shall have the right to prescribe the weight and position of safes and other
objects of excessive weight, and no safe or other object whose weight exceeds the lawful load for
the area upon which it would stand shall be brought into or kept upon the Ancillary Space. If, in
the judgment of Landlord, it is necessary to



H - 2









 







distribute the concentrated weight of any safe or heavy object, the work involved in such
distribution shall be done in such manner as Landlord shall determine and the expense thereof shall
be paid by Tenant. The moving of safes and other heavy objects shall take place only upon previous
notice to, and at times and in a manner approved by, Landlord, and the persons employed to move the
same in and out of the Ancillary Buildings shall be acceptable to Landlord. No machines, machinery
or electrical or electronic equipment or appliances of any kind shall be placed or operated so as
to disturb other tenants. Freight, furniture, business equipment, merchandise and packages of any
description shall be delivered to and removed from the Ancillary Space only in the freight
elevators and through the service entrances and corridors, and only during hours and in a manner
approved by Landlord.



          7. Except as otherwise expressly provided in Article 39, no noise, including the
playing of any musical instrument, radio or television, which, in the judgment of Landlord, might
disturb other tenants in the Ancillary Buildings, shall be made or permitted by Tenant. No animals
shall be brought into or kept in the Ancillary Buildings or the Ancillary Space. No dangerous,
inflammable, combustible or explosive object or material shall be brought into or kept in the
Ancillary Buildings by Tenant or with the permission of Tenant, except as permitted by law and the
insurance companies insuring the Ancillary Buildings or the property therein. Tenant shall not
cause or permit any odors of cooking or other processes, or any unusual or other objectionable
odors, to permeate in or emanate from the Ancillary Space.



          8. No additional locks or bolts of any kind shall be placed upon any of the doors or windows
in the Ancillary Space and no lock on any door shall be changed or altered in any respect.
Duplicate keys for the Ancillary Space and toilet rooms shall be procured only from Landlord, and
Tenant shall pay to Landlord Landlord’s reasonable



H - 3









 







charge therefor. Upon the expiration or termination of this Lease, all keys of the Ancillary
Space and toilet rooms shall be delivered to Landlord.



          9. All entrance doors in the Ancillary Space shall be left locked by Tenant when the Ancillary
Space are not in use. No door (other than a door in an interior partition of the Ancillary Space)
shall be left open at any time.



          10. Landlord reserves the right to rescind, alter or waive any rule or regulation at any time
prescribed by Landlord when, in its judgment, it deems it necessary, desirable or proper for its
best interest or for the best interests of the tenants, and no rescission, alteration or waiver of
any rule or regulation in favor of one tenant shall operate as a rescission, alteration or waiver
in favor of any other tenant. Landlord shall not be responsible to Tenant for the nonobservance or
violation by any other tenant of any of the rules or regulations at any time prescribed by
Landlord.



          11. Tenant shall promptly notify Landlord of any inspection of the Ancillary Space by
governmental agencies having jurisdiction over matters involving health or safety.



          12. Tenant shall be responsible for maintaining the Ancillary Space rodent and insect free.
With respect to the 50 Rock Space, extermination services shall be provided by Tenant on a monthly
basis and, with respect to the 1270 Space, additionally as required in Article 40.



          13. All food storage areas shall be adequately protected against vermin entry by a contractor
approved in advance by Landlord.



          14. Drain pipes shall be kept free of obstructions and operable at all times.



          15. Exit signs shall be illuminated, and other exit identification shall be operable, at all
times.



H - 4









 





          16. Emergency lighting, including battery components, shall be in good working condition at
all times.



          17. Tenant shall not bring or keep, or allow to be brought or kept, in the Ancillary
Buildings, any bicycles, roller blades, in line or other skates or other type of wheeled pedestrian
form of locomotion.



          18. Mail pick-up and delivery shall be responsibility of Tenant.



          19. Tenant shall install, if missing, blinds or shades on all windows in the Ancillary Space,
which blinds and shades shall be subject to Landlord’s approval.




H - 5











 





SCHEDULE 1




FIXED
RENT




(except for Retail Space #1)




FROM OCTOBER 1998 TO FEBRUARY 2001




*****





S-1












 





SCHEDULE 2




PERCENTAGE RENT




          (a) Percentage Rent. From and after the Rent Commencement Date, Tenant shall pay to
Landlord as Rent for each calendar year (or portion thereof) during the Term (“Computation Year”),
a sum (“Percentage Rent”) equal to the amount, if any, by which (i) Tenant’s Gross Revenues
(as defined in Section (d)(i)) for any Computation Year multiplied by 
***** (the “Percentage Rent Rate”) exceeds (ii) the Fixed Rent for the Premises
payable for such Computation Year. For the purposes of computing the amount of Percentage Rent
due, each Computation Year shall be considered as an independent accounting period and no charge or
credit may be taken in any subsequent Computation Year on account of any Gross Revenues in any
prior Computation Year.




          (b) Payment Schedule. Percentage Rent shall be determined and paid, without any prior
demand therefor, from and after the Rent Commencement Date, as follows:





     (i) No later than 45 days after the close of each calendar quarter during the Term
(and no later than 90 days following the Expiration Date), Tenant shall deliver to Landlord
a true, correct and complete statement in form from time to time provided by Landlord,
calculated on an accrual basis in accordance with generally accepted accounting principles,
consistently applied and certified by an authorized officer or agent of Tenant (a
“Quarterly Statement”), showing (A) Tenant’s Gross Revenues made (1) in the
preceding calendar quarter and (2) for the entire elapsed portion of the current
Computation Year, including the preceding calendar quarter, and including a detailed
itemization of all exclusions therefrom as permitted under Section (d), (B) all
payments of Percentage Rent previously made by Tenant in respect of such Computation Year
and (C) a calculation of Percentage Rent then due. Simultaneously with the rendition of
each Quarterly Statement, Tenant shall pay to Landlord a quarterly installment of
Percentage Rent equal to the difference between (I) the amount, if any, by which (a) the
Percentage Rent Rate multiplied by Tenant’s Gross Revenues for the entire



 









 







elapsed portion of the current Computation Year, including the calendar quarter for
which such installment of Percentage Rent is being calculated, exceeds (b) the product of
the Fixed Rent payable for such Computation Year multiplied by a fraction, the numerator of
which is the number of months in such elapsed portion of the current Computation Year, and
the denominator of which is 12 (or, if the number of months in such Computation Year is
less than 12, then the number of months in such Computation Year) less (II) the aggregate
Percentage Rent previously paid by Tenant in respect of such elapsed potion of the current
Computation Year. In the event of a partial calendar month occurring in such Computation
Year, there shall be an equitable adjustment of such calculation to provide for such
partial calendar month.




     (ii) No later than 90 days after the close of each
Computation Year during the Term, and within 90 days
after the Expiration Date, Tenant shall deliver to
Landlord, a true, correct and complete statement of
Gross Revenues for the preceding Computation Year
(an “Annual Statement”), calculated on an
accrual basis and setting forth (A) Gross Revenues
for such Computation Year and itemizing all
permissible exclusions therefrom as set forth in
Section (d), (B) the amount of Percentage
Rent paid by Tenant in respect of such Computation
Year, and (C) the amount of any deficiency or excess
of Percentage Rent paid by Tenant in respect of such
Computation Year. Each Annual Statement shall be
certified by a nationally recognized independent certified public accountant
reasonably acceptable to Landlord to be in accordance with the requirements of Section
(d) and with generally accepted accounting principles. Simultaneously with the
rendition of each Annual Statement, Tenant shall pay to Landlord the amount of any
deficiency shown on the Annual Statement. If the Annual Statement shows an excess of
Percentage Rent in respect of such Computation Year, then so long as no Event of Default
shall exist under this Lease, Landlord shall credit the amount of such overpayment against
the next accruing installments of Rent due under this Lease.



S-2-2









 





          (c) Delivery of Annual Statement. If Tenant fails to deliver an Annual Statement to
Landlord within such 90-day period, Landlord shall have the right to employ an independent
certified public accountant to examine such of Tenant’s books and records as may be necessary to
certify the amount of Tenant’s Gross Revenues for such Computation Year, and Tenant shall pay to
Landlord the cost thereof upon demand as Additional Rent. The acceptance by Landlord of payments
of Percentage Rent or reports of Gross Revenues shall be without prejudice and shall in no event
constitute a waiver of Landlord’s right to claim a deficiency or to audit Tenant’s books and
records as provided herein.




          (d) Gross Revenues. (i) “Gross
Revenues” mean *****


S-2-3









 









          (ii) If requested by Landlord, Tenant shall submit to Landlord photocopies of the federal, sales,
state or local sales tax or similar tax returns filed by Tenant promptly after filing with the
appropriate governmental authority. If any governmental authority shall increase the Gross
Revenues reported by Tenant on any such tax return, after audit, for any Computation Year for which
such Gross Revenues have been reported and if such adjustment affects “Gross Revenues” as defined
in this paragraph, then Tenant shall notify Landlord promptly of such increase and shall supply to
Landlord a true copy of such audit within 20 days thereafter, and Tenant shall pay to Landlord at
that time any additional Percentage Rent due, with interest thereon at the
Base Rate from the date upon which Tenant should have paid such Percentage Rent through the
date paid.




          (e) Tenant’s Records. Tenant shall prepare, keep and maintain at the Premises or at
Tenant’s principal office within New York City, for a period of not less than 3 years following the
end of each Computation Year and following the Expiration Date (with respect to the final
Computation Year), complete and accurate books of account and records of, but not limited to, all
purchases and receipts of merchandise, inventories and all sales and other transactions by Tenant
from which Tenant’s Gross Revenues from the Music Hall or the Club can be determined. Tenant shall
record all sales, at the time each sale is made, whether for cash or credit using either (i)
non-resettable electronic cash registers or cash registers containing locked-in cumulative tapes
with cumulative capacity, in each case reasonably satisfactory to Landlord, or (ii) a system of
duplicate sales slips, invoices or non-resettable cash register receipts, serially numbered, or
such other method for recording sales as Landlord approves in its sole judgment. Tenant shall keep
for at least 3 years following the end of each Computation Year (or if Landlord and Tenant are
disputing the computation of Gross Revenues for any Computation Year, such longer period of time as
may be required until the final resolution of such dispute) all pertinent original sales books and
records, which records shall include:




S-2-4









 







(A) daily dated register tapes; (B) serially
numbered sales slips; (C) mail orders; (D)
telephone orders; (E) settlement report sheets of
transactions with subtenants, concessionaires and
licensees; (F) records showing that merchandise
returned by customers was purchased by such
customer at or from the Music Hall or the Club; (G)
duplicate bank deposit slips and bank statements;
and (H) such other records as would normally be
required to be kept and examined by an independent
accountant in accordance with accepted auditing
practices in performing an audit of Tenant’s Gross
Revenues; and all income, sales and occupancy tax
returns. All of Tenant’s obligations under this
Section (e) shall survive the
Expiration Date for a period of 3 years (or if Landlord and Tenant are disputing the
computation of Gross Revenues for any Computation Year such longer period of time as may be
required until the final resolution of such dispute).




          (f) Landlord’s Right to Audit. If Tenant shall fail to submit to Landlord (i) any
Annual Statement on the date due, and such failure continues for 5 days after notice from Landlord,
or (ii) any Quarterly Statement on the date due, and such failure continues for 5 days after notice
from Landlord in any 2 quarters, whether or not consecutive, in any period of 12 months, then
Landlord shall have the right to perform a complete audit, at Tenant’s expense, of Tenant’s books
of accounts and records of Gross Revenues. Landlord shall also have the right, at any time from
time to time, to perform a complete audit of any one or more Quarterly or Annual Statements, and in
connection with such audit, to examine Tenant’s books of account and records of Gross Revenues, and
Tenant shall make all such books of account and records available for examination by Landlord in
the Borough of Manhattan, City of New York. Tenant shall permit Landlord to make copies of any
such books, records and information as Landlord may require in connection with such audit, at
Tenant’s cost and expense. Tenant shall pay to Landlord within 10 Business Days after demand any
additional Percentage Rent which such audit discloses is due to Landlord, with interest thereon at
the Interest Rate from the date upon which Tenant should have paid such Percentage Rent through the
date paid. In addition, if (A) such audit discloses that the actual amount of Gross Revenues
differs from the amount reported by more than 5%, or (B) the Person conducting such audit reports
that, in its



S-2-5









 






opinion, Tenant’s records and procedures are insufficient to permit an accurate determination
of Gross Revenues for any period, Tenant shall also pay the costs of such audit as Additional Rent
to Landlord within 5 days following rendition of a bill therefor. Upon reasonable written notice,
Tenant shall permit Landlord to examine Tenant’s books of account and records and record-keeping
procedures during regular business hours, and to have a representative present on the Premises from
time to time to check, verify and tabulate Gross Revenues and to evaluate Tenant’s control features
affecting the determination of Gross Revenues. All of Landlord’s rights of inspection, audit,
examination and evaluation granted pursuant to this Section (f) may be exercised by
Landlord’s accountants or other authorized agents or representatives. Subject to any Requirements,
Landlord agrees to maintain the information obtained from such audit in strict confidence, except
that Landlord may reveal such documentation to its employees and consultants who are actively
involved in such audit, provided that such employees and consultants agree to maintain such
information confidential.




          (g) Tenant’s Dispute Right. If Tenant shall dispute Landlord’s determination that
Tenant owes additional Percentage Rent pursuant to paragraph (f) above, Tenant shall notify
Landlord of such dispute within 60 days after Tenant’s receipt of Landlord’s bill for such
additional Percentage Rent and such dispute shall be resolved in accordance with the Dispute
Resolution Procedure set forth in Section 38.1. Notwithstanding the foregoing, Tenant’s
right to dispute such Landlord’s determination shall be conditioned upon Tenant’s payment in full
to Landlord of all amounts of additional Percentage Rent as set forth in Landlord’s bill.





S-2-6












 





SCHEDULE 3




RETAIL OPERATING EXPENSE PAYMENT




          Definitions. As used in this Schedule 3:




     (a) “Base Operating Year” means calendar year 1998.



     (b) “Base Expense Factor” means the quotient, expressed in dollars and cents, of (i)
the Operating Expenses payable for the Base Operating Year, divided by (ii) the Center Operating
Area for the Base Operating Year.



     (c) “Center Operating Area” means the number of square feet in the rentable area of
the Center which is operated and maintained by Landlord or an Affiliate of Landlord or at the
expense of Landlord or an Affiliate of Landlord. Notwithstanding the foregoing, Landlord shall:



     (i) subtract from the Center Operating Area the number of square feet in the rentable area of
the Center operated and maintained by Landlord or an Affiliate of Landlord but (A) operated and
maintained at the expense of any Person other than Landlord (or an Affiliate of Landlord) or (B)
owned, as a condominium unit or otherwise, by any Person other than Landlord; and



     (ii) add to the Center Operating Area to include the number of square feet in the additional
rentable area of the Center operated and maintained by Landlord or an Affiliate of Landlord or at
the expense of Landlord or an Affiliate of Landlord.



     (d) “Expense Factor” means a fraction, the numerator of which is the Operating
Expenses payable for any Computation Year subsequent to the Base Operating Year, and the
denominator of which is the Center Operating Area.



S-3-1









 





     (e) “Landlord’s Statement” means an instrument or instruments containing a comparison
of the Base Expense Factor and the Expense Factor for any Computation Year.



     (f) “Operating Expenses” means the costs and expenses (and taxes, if any, thereon)
paid or incurred by or on behalf of Landlord and/or its Affiliates with respect to the ownership,
operation, maintenance and repair of the Center, including the costs incurred for: (i) air
conditioning, ventilation, and heating; (ii) interior and exterior cleaning and rubbish removal,
including supervisory fees of Landlord’s Agent in connection therewith (provided that if such
services are performed by Landlord’s Agent, such costs shall not exceed those charged by outside
contractors for similar services in comparable office buildings); (iii) window washing; (iv)
maintenance and repair of elevators and escalators; (v) hand tools and other movable equipment;
(vi) porter and matron service; (vii) electricity, gas, oil, steam, water rates, sewer rents and
other utilities; (viii) association fees and dues; (ix) protection and security services; (x)
compliance with any agreement with any Governmental Authority with respect to the maintenance of
the Center or any part thereof as a landmark; (xi) insurance premiums; (xii) supplies; (xiii)
wages, salaries, disability benefits, pensions, hospitalization, retirement plans, severance
packages and group insurance for employees of Landlord and Landlord’s Agent, up to and including
the level of building managers and their immediate supervisors, (xiv) uniforms and working clothes
for such employees and the cleaning thereof; (xv) expenses imposed pursuant to any collective
bargaining agreement with respect to such employees; (xvi) payroll, social security, unemployment
and other similar taxes with respect to such employees; (xvii) sales, use and similar taxes;
(xviii) vault



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charges; (xix) franchise and license fees; (xx) charges of independent contractors performing
work in connection with the operation, maintenance and repair of the Center; (xxi) legal,
accounting and other professional fees of Landlord and Landlord’s Agent; (xxii) installation,
operation and maintenance of the Christmas tree for the Center and related holiday decorations,
events open to the public and other promotional expenses intended to enhance the environment of the
Center; (xxiii) landscaping costs; (xxiv) management fees, or if no management fee is being
charged, an imputed management fee not in excess of the amount that would be paid to a property
manager for managing a comparable first class office building in midtown Manhattan; and (xxv) the
annual depreciation or amortization, on a straight-line basis over such period as Landlord shall
reasonably determine (with interest on the unamortized portion at the Base Rate plus 2 percent per
annum), of any capital costs incurred after the Base Operating Year for any equipment, device or
other improvement made or acquired which is either (A) a labor-saving measure or to effect other
economies in the operation, maintenance or repair of the Center (but only to the extent that the
annual benefits anticipated to be realized therefrom are reasonably related to the annual amounts
to be amortized), or (B) required by any Requirement. Operating Expenses shall not include (1)
Taxes, special assessments and franchise, income or any other taxes imposed upon or measured by the
income or profits of Landlord; (2) except for depreciation and amortization specifically included
in Operating Expenses as provided above, the costs of all items which should be capitalized in
accordance with generally accepted accounting practices; (3) the costs of all services furnished to
any other tenant of the Center on a “rent inclusion” basis which are not provided to Tenant on such
basis; (4) the costs of all work or services performed



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for any
tenant in the Center (including Tenant) at such tenant’s cost and expense; (5) mortgage
amortization and interest; (6) leasing commissions; (7) allowances, concessions and other costs of
tenant installations and decorations incurred in connection with preparing space for any tenant in
the Center, including workletters and concessions; (8) fixed rent payable under Superior Leases, if
any; (9) wages, salaries and benefits paid to any employees of Landlord and Landlord’s Agent, above
the level of the immediate supervisors of building managers; (10) legal and accounting fees
relating to (i) disputes with tenants, prospective tenants or other occupants of the Center, (ii)
disputes with purchasers, prospective purchasers, mortgagees or prospective mortgagees of the
Center or any part thereof, or (iii) negotiations of leases, contracts of sale or mortgages; (11)
costs which are reimbursed by insurance, warranty or condemnation proceeds, or which are
reimbursable by Tenant or other tenants or any other Person other than pursuant to an expense
escalation clause; (12) costs in the nature of penalties or fines; (13) the costs of all services,
supplies and repairs paid to any Affiliate or subsidiary of Landlord or Landlord’s Agent materially
in excess of the costs that would be payable in an “arm’s length” or unrelated situation; (14)
advertising expenses in connection with leasing of the Center; (15) the costs of installing,
operating and maintaining a specialty improvement, such as a cafeteria, lodging or private dining
facility, or an athletic, luncheon or recreational club, unless Tenant is permitted to make use of
any such facility without additional cost or on a subsidized basis consistent with other users;
(16) the costs or expenses (including fines, interest, penalties and legal fees) arising out of
Landlord’s failure to timely pay Operating Expenses or Taxes; and (17) the costs incurred in
connection with the removal, encapsulation or other treatment of any Hazardous



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Materials classified as such and existing in the Premises as of the date hereof and required
to be removed, encapsulated or treated under applicable Requirements in effect as of the date
hereof.



     (g) Operating Expense Payments. (i) If the Expense Factor for any Computation Year
exceeds the Base Expense Factor, Tenant shall pay to Landlord, as Additional Rent during each
Computation Year, an amount (“Tenant’s Operating Payment”) equal to (A) Tenant’s Retail
Space Area, multiplied by (B) the amount by which the Expense Factor for such Computation Year
exceeds the Base Expense Factor. For each Computation Year, Landlord shall furnish to Tenant a
statement setting forth Landlord’s good faith estimate of Tenant’s Operating Payment for such
Computation Year. Tenant shall pay to Landlord, on the first day of each month during such
Computation Year, an amount equal to one-twelfth of Landlord’s estimate of Tenant’s Operating
Payment for such Computation Year. If Landlord does not furnish any such estimate for a
Computation Year until after the commencement thereof, then (1) until the first day of the month
following the month in which such estimate is furnished to Tenant, Tenant shall pay to Landlord on
the first day of each month an amount equal to the monthly sum payable by Tenant to Landlord under
this subsection (g) during the last month of the preceding Computation Year, (2) promptly
after such estimate is furnished to Tenant or together therewith, Landlord shall give notice to
Tenant stating whether the installments of Tenant’s Operating Payment previously made for such
Computation Year were greater or less than the installments of Tenant’s Operating Payment to be
made for such Computation Year in accordance with such estimate, and (X) if there shall be a
deficiency, Tenant shall pay the amount thereof within 10 Business Days after demand



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therefor or (Y) if there shall have been an overpayment, Landlord shall credit the amount
thereof against subsequent installments of Rent due hereunder, and (3) on the first day of the
month following the month in which such estimate is furnished to Tenant, and on the first day of
each month thereafter throughout the remainder of such Computation Year, Tenant shall pay to
Landlord an amount equal to one-twelfth of Tenant’s Operating Payment shown on such estimate.



     (ii) Landlord shall furnish to Tenant a Landlord’s Statement of Operating Expenses for each
Computation Year. If such Landlord’s Statement shows that the sums paid by Tenant under
subsection (g) exceeded the actual amount of Tenant’s Operating Payment for such
Computation Year, Landlord shall credit the amount of such excess against subsequent installments
of Rent due hereunder. If Landlord’s Statement for such Computation Year shows that the sums so
paid by Tenant were less than Tenant’s Operating Payment for such Computation Year, Tenant shall
pay the amount of such deficiency within 10 Business Days after Tenant’s receipt of Landlord’s
Statement.



     (h) Certain Adjustments. (i) If the Center Operating Area is increased or decreased,
from time to time, pursuant to subsection (c), then from and after the date of such
election, Operating Expenses for purposes of this Lease shall be limited to that portion of the
Operating Expenses of the Center which is properly allocable, in Landlord’s reasonable judgment, to
the space included in the Center Operating Area. Such allocation shall be performed by Landlord in
good faith in a manner consistent with the methods and principles employed by Landlord in computing
Operating Expenses prior to the date of such election.



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     (ii) If during all or any part of any Computation Year (including the Base Operating Year)
Landlord is not furnishing any particular work or service (the cost of which, if performed by
Landlord, would constitute an Operating Expense) to a rentable portion of the Center which is not
then leased, Operating Expenses for such period shall include an amount equal to the costs and
expenses which would reasonably have been incurred for such work or service during such period by
Landlord if the Center had been 95% leased and occupied.



     (iii) If during all or any part of any Computation Year (including the Base Operating Year)
Landlord is not obligated to furnish any particular work or service (the cost of which, if
performed by Landlord, would constitute an Operating Expense) to any portion of the Center (other
than to space not then leased), then notwithstanding anything to the contrary set forth in
subsection (f), the amount included in Operating Expenses for such period with respect to
such work or service shall be equal to the product of (i) the Center Operating Area multiplied by
(ii) the quotient expressed in dollars and cents, of (A) the costs and expenses actually incurred
by Landlord during such period to furnish such work or service, divided by (B) the area of the
Center to which Landlord provides such work or service.



     (i) Non-Waiver. Landlord’s failure to render a Landlord’s Statement on a timely basis
with respect to any Computation Year shall not prejudice Landlord’s right to thereafter render a
Landlord’s Statement with respect to such Computation Year or any subsequent Computation Year, nor
shall the rendering of a Landlord’s Statement prejudice Landlord’s right to thereafter render a
corrected Landlord’s Statement for any Computation Year.



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     (j) Tenant Disputes. Each Landlord’s Statement sent to Tenant shall be conclusively
binding upon Tenant unless Tenant shall (A) within 30 days after such statement is sent, pay to
Landlord the amount set forth in such statement, without prejudice to Tenant’s right to dispute
such statement, and (B) within 60 days after such statement is sent, send a notice to Landlord
objecting to such statement and specifying the reasons for Tenant’s claim that such statement is
incorrect. Tenant covenants and agrees that Tenant will not employ, in connection with any dispute
under this Lease, any Person who is to be compensated, in whole or in part, on a contingency fee
basis. If the parties are unable to resolve any such dispute within 30 days following the giving
of Tenant’s notice of objection, either party may refer the issues raised to an independent firm of
certified public accountants selected by Landlord and reasonably acceptable to Tenant, and the
decision of such accountants shall be conclusively binding upon Landlord and Tenant. In connection
therewith, Tenant and such accountants shall execute and deliver to Landlord a confidentiality
agreement, in form and substance reasonably satisfactory to Landlord, whereby such parties agree
not to disclose to any third party any of the information obtained in connection with such review,
or the substance of any admissions or stipulations by any party in connection therewith, or of any
resulting reconciliation, compromise or settlement. Tenant shall pay the fees and expenses
relating to such procedure, unless such accountants shall determine that Landlord overstated the
Expense Factor by more than 5% for such Computation Year, as finally determined, in which case
Landlord shall pay such fees and expenses.




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SCHEDULE 4



LANDLORD’S
MUSIC HALL PROPERTY



 








 





SCHEDULE 5



LANDLORD’S
STUDIO APARTMENT PROPERTY



 








 





SCHEDULE 6



GUARANTY