Exhibit
10.60


 


AGREEMENT OF LEASE


 


between


 


Fisher-Park Lane Owner LLC,

Landlord


 


and


 


General Maritime Corporation,

Tenant


 


As of November 30, 2004


 










 


PREMISES:


 


299 Park Avenue

New York, New York

The Entire Second Floor


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE 1

  	
  RENT

  	
   

  
	
  ARTICLE 2

  	
  OCCUPANCY AND USE

  	
   

  
	
  ARTICLE 3

  	
  PREPARATION OF THE DEMISED PREMISES

  	
   

  
	
  ARTICLE 4

  	
  TAX ESCALATION

  	
   

  
	
  ARTICLE 5

  	
  EXPENSE ESCALATION

  	
   

  
	
  ARTICLE 6

  	
  INSURANCE

  	
   

  
	
  ARTICLE
  7

  	
  ELECTRICITY

  	
   

  
	
  ARTICLE
  8

  	
  ALTERATIONS
  AND INSTALLATIONS

  	
   

  
	
  ARTICLE
  9

  	
  REPAIRS
  AND MAINTENANCE

  	
   

  
	
  ARTICLE
  10

  	
  REQUIREMENTS
  OF LAW; FIRE INSURANCE

  	
   

  
	
  ARTICLE
  11

  	
  SUBORDINATION,
  NOTICE TO LESSORS AND MORTGAGEES

  	
   

  
	
  ARTICLE
  12

  	
  LOSS,
  DAMAGE, REIMBURSEMENT, LIABILITY, ETC

  	
   

  
	
  ARTICLE
  13

  	
  DAMAGE
  OR DESTRUCTION

  	
   

  
	
  ARTICLE
  14

  	
  EMINENT
  DOMAIN

  	
   

  
	
  ARTICLE
  15

  	
  ASSIGNMENT,
  SUBLETTING AND MORTGAGING

  	
   

  
	
  ARTICLE
  16

  	
  ACCESS
  TO DEMISED PREMISES; CHANGES

  	
   

  
	
  ARTICLE
  17

  	
  CERTIFICATE
  OF OCCUPANCY

  	
   

  
	
  ARTICLE
  18

  	
  BANKRUPTCY

  	
   

  
	
  ARTICLE
  19

  	
  DEFAULT

  	
   

  
	
  ARTICLE
  20

  	
  REMEDIES
  OF LANDLORD; WAIVER OF REDEMPTION

  	
   

  
	
  ARTICLE
  21

  	
  CURING
  TENANT’S DEFAULTS; FEES AND EXPENSES

  	
   

  
	
  ARTICLE
  22

  	
  NO
  REPRESENTATIONS BY LANDLORD

  	
   

  
	
  ARTICLE
  23

  	
  END
  OF TERM

  	
   

  
	
  ARTICLE
  24

  	
  QUIET
  ENJOYMENT

  	
   

  
	
  ARTICLE
  25

  	
  DEFINITIONS

  	
   

  
	
  ARTICLE
  26

  	
  ADJACENT
  EXCAVATION — SHORING

  	
   

  
	
  ARTICLE
  27

  	
  RULES
  AND REGULATIONS

  	
   

  
	
  ARTICLE
  28

  	
  NO
  WAIVER

  	
   

  
	
  ARTICLE
  29

  	
  WAIVER
  OF TRIAL BY JURY

  	
   

  
	
  ARTICLE
  30

  	
  INABILITY
  TO PERFORM

  	
   

  



 


i





















 


	
  ARTICLE
  31

  	
  NOTICES

  	
   

  
	
  ARTICLE
  32

  	
  SERVICES

  	
   

  
	
  ARTICLE
  33

  	
  ARBITRATION

  	
   

  
	
  ARTICLE
  34

  	
  CONSENTS
  AND APPROVALS

  	
   

  
	
  ARTICLE
  35

  	
  INDEMNITY

  	
   

  
	
  ARTICLE
  36

  	
  CERTIFICATES

  	
   

  
	
  ARTICLE
  37

  	
  NAME
  OF BUILDING

  	
   

  
	
  ARTICLE
  38

  	
  MEMORANDUM
  OF LEASE

  	
   

  
	
  ARTICLE
  39

  	
  BROKERAGE

  	
   

  
	
  ARTICLE
  40

  	
  INVALIDITY
  OF ANY PROVISION

  	
   

  
	
  ARTICLE
  41

  	
  MISCELLANEOUS

  	
   

  
	
  ARTICLE
  42

  	
  SECURITY

  	
   

  
	
  ARTICLE
  43

  	
  ROOFTOP
  COMMUNICATIONS EQUIPMENT

  	
   

  
	
   

  	
   

  
	
  Exhibits  Delete inapplicable exhibits

  	
   

  
	
   

  	
   

  
	
  EXHIBIT A Floor Plan

  	
   

  
	
  EXHIBIT B Cleaning Fee Calculation

  	
   

  
	
  EXHIBIT C Wage Rate Calculation

  	
   

  
	
  EXHIBIT D Landlord Work

  	
   

  
	
  EXHIBIT E Rules and Regulations

  	
   

  
	
  EXHIBIT F Cleaning Specifications

  	
   

  
	
  EXHIBIT G Form of Letter of Credit

  	
   

  
	
  EXHIBIT H Pre-Approved Contractors

  	
   

  



 


ii





















 


AGREEMENT OF LEASE made as of the 30th day of November, 2004
between FISHER-PARK LANE OWNER LLC, a Delaware limited liability company having
an office at c/o FISHER BROTHERS, 299 Park Avenue, New York, New York 10171
(herein called “Landlord“)
and GENERAL MARITIME CORPORATION, a Marshall Islands corporation, having an
office at 35 West 56th Street, New York, New York 10019 (herein called “Tenant“).  All initially-capitalized terms are listed in
the Table of Defined Terms which follows the table of contents of this Lease.


 


W I T N E S S E
T H:


 


Landlord hereby leases to Tenant, and Tenant hereby
hires from Landlord, the premises hereinafter described, in the building known
as 299 Park Avenue, New York, New York 10171 (herein called the “Building“), for the term
hereinafter stated, for the rents hereinafter reserved and upon and subject to
the terms, provisions, conditions (including limitations, restrictions and
reservations) and covenants hereinafter provided.  Each party hereto hereby expressly covenants
and agrees to observe and perform all of the terms, provisions, conditions and
covenants herein contained on its part to be observed and performed.


 


The premises hereby leased to Tenant are the entire
second floor of the Building, substantially as shown hatched on the floor plan
annexed hereto as Exhibit A
(herein called the “demised premises”).


 


The term of this Lease, for which the demised premises
are hereby leased, shall commence on the date December 1, 2004 (herein called
the “Commencement Date“), and shall end
on the fifteenth (15th) anniversary of the Rent Commencement Date (herein
called the “Expiration Date“) or shall end
on such earlier date upon which said term may expire or be cancelled or
terminated pursuant to any of the terms, provisions, conditions and covenants
of this Lease or pursuant to law. Tenant acknowledges that Landlord has
completed Landlord’s Work.


 


The parties hereto, for themselves, their heirs,
distributees, executors, administrators, legal representatives, successors and
assigns, hereby covenant as follows:


 


ARTICLE 1


 


RENT


 


1.1.  (a)  Tenant shall pay to Landlord fixed annual
rent (herein called “fixed annual rent”)
as follows:


 


(i)            One Million Three
Hundred Sixteen Thousand Six Hundred Eighty-Eight Dollars ($1,316,688) per
annum ($109,724 per month) for the period commencing on the Commencement Date
and ending on the last day of the month


 





















 


in which occurs the day
immediately preceding the fifth (5th) anniversary of the Rent Commencement Date
(herein called the “1st Rental Period“);


 


(ii)           One Million Four
Hundred Twenty-Six Thousand Four Hundred Twelve Dollars ($1,426,412) per annum
($118,868 per month) for the period commencing on the day immediately following
the last day of the 1st Rental Period and ending on the day immediately
preceding the tenth (10th) anniversary of the Rent Commencement Date (herein
called the “2nd Rental Period“); and


 


(iii)          One Million Five
Hundred Thirty-Six Thousand One Hundred Thirty-Six Dollars ($1,536,136) per
annum ($128,011 per month) for the period commencing on the day immediately
following the last day of the 2nd Rental Period and ending on the Expiration
Date (herein called the “3rd Rental Period“).


 


(b)           Subject to Section 1.8
of this Lease and the other applicable provisions hereof, Tenant agrees to pay
fixed annual rent in equal monthly installments in advance on the first
Business Day of each calendar month during the term of this Lease.


 


(c)           The first full
calendar month’s installment of fixed annual rent due under this Lease shall be
paid by Tenant upon execution of this Lease.


 


1.2.  Tenant shall pay the fixed
annual rent and additional rent as above and as hereinafter provided, without
notice or demand therefor, without any abatement, setoff or deduction
whatsoever, except as expressly set forth herein.  All sums other than fixed annual rent payable
by Tenant under this Lease to Landlord shall be deemed additional rent and
payable within thirty (30) days after demand, unless other payment dates are
hereinafter provided.  Fixed annual rent
and recurring monthly installments of additional rent shall be paid by wire
transfer of immediately available “Federal
Reserve Funds“ to Landlord or its designee pursuant to the
wiring instructions set forth below, which wiring instructions Landlord may
change from time to time upon not less than thirty (30) days prior written
notice to Tenant.  Non-recurring
installments of additional rent shall be paid by Tenant to Landlord in lawful
money of the United States of America by good and sufficient check (subject to
collection), drawn on Nordea Bank, a bank having an office in New York City, or
such other bank as Landlord may reasonably approve, at the office of Landlord
or such other place in the United States of America as Landlord may
designate.  As used herein, the term “Federal Reserve Funds“ shall mean the
receipt by a bank or banks in the continental United States designated by
Landlord of U.S. dollars in form that does not require further clearance, and
may be applied at the direction of Landlord by such recipient bank or banks on
the day of receipt of advice that such funds have been wire transferred.  As of the date hereof, Landlord’s wiring
instructions for the payment of fixed annual rent and recurring installments of
additional rent are as follows:


 


Name of Institution:             JPMorgan
Trust Operations


Account Number:                160676.1


 


2





















 


Account Name:    299
Park Avenue Lockbox


ABA Number       021-000-021


 


1.3.  If the Rent Commencement
Date or the Expiration Date occurs on a day other than the first day of a
calendar month (in the case of the Rent Commencement Date) or the last day of a
calendar month (in the case of the Expiration Date), the fixed annual rent and
additional rent for the partial calendar month in which the Rent Commencement
Date or the Expiration Date, as the case may be, occurs shall be prorated.  The fixed annual rent for any partial
calendar month in which the Rent Commencement Date occurs shall be paid on the Rent
Commencement Date.


 


1.4.  No payment by Tenant or
receipt or acceptance by Landlord of a lesser amount than the correct fixed
annual rent or additional rent shall be deemed to be other than a payment on
account, nor shall any endorsement or statement on any check or any letter
accompanying any 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 or pursue any other remedy in this Lease or at law
provided.


 


1.5.  Any apportionments or
prorations of fixed annual rent or additional rent to be made under this Lease
on an annualized basis shall be computed on the basis of a 365(6)-day year, and
any apportionments or prorations of monthly fixed annual rent or additional
rent shall be made on the basis of the actual number of days contained in the
applicable month.


 


1.6.  If any of the fixed annual
rent or additional rent payable under the terms and provisions of this Lease
shall be or become uncollectible, reduced or required to be refunded because of
any act or law enacted by a governmental authority, Tenant shall enter into
such agreement(s) and take such other reasonable steps as Landlord may
reasonably request and as may be legally permissible to permit Landlord to
collect the maximum rents which from time to time during the continuance of
such legal rent restriction may be legally permissible (but not in excess of
the amounts reserved therefor under this Lease).  Upon the termination of such legal rent
restriction, (a) the fixed annual rent and/or additional rent shall become
and thereafter be payable in accordance with the amounts reserved herein for
the periods following such termination, and (b) Tenant shall pay to
Landlord promptly upon being billed, to the maximum extent legally permissible,
an amount equal to (i) the fixed annual rent and/or additional rent which
would have been paid pursuant to this Lease but for such legal rent restriction
less (ii) the rents paid by Tenant during the period such legal rent
restriction was in effect.


 


1.7.  Additional rent shall be
deemed to be rent and Tenant’s failure to pay Landlord additional rent shall be
considered a failure to pay fixed annual rent hereunder and Landlord shall be
entitled to all rights and remedies provided herein or by law for a default in
the payment of additional rent as for a default in the payment of fixed annual


 


3





















 


rent (notwithstanding the
fact that Tenant may not then also be in default in the payment of fixed annual
rent).


 


1.8.  Notwithstanding the
provisions of Section 1.1(a) of this Lease, the fixed annual rent payable
by Tenant shall be abated for the period (herein called the “Rent
Abatement Period“) commencing on the Commencement Date and
ending on the date that is ten (10) months thereafter.  The day immediately following the Rent
Abatement Period is herein called the “Rent Commencement Date.”


 


ARTICLE 2


 


OCCUPANCY AND USE


 


2.1.  The demised premises shall
be used solely as and for executive and general offices, and for no other
purpose.


 


2.2.  If any governmental license
or permit (other than a Certificate of Occupancy) shall be required for the
proper and lawful conduct of Tenant’s business in the demised premises or any
part thereof, Tenant, at its expense, shall duly procure and thereafter
maintain such license or permit and submit the same to Landlord for
inspection.  Tenant shall at all times
comply with the terms and conditions of each such license or permit.  Additionally, should Alterations or Tenant’s
use of the demised premises for other than executive and general offices
require any modification or amendment of any Certificate of Occupancy for the
Building, Tenant shall, at its expense, take all actions reasonably requested
by Landlord in order to procure any such modification or amendment and shall
reimburse Landlord (as additional rent) for all reasonable costs and expenses
Landlord incurs in effecting said modifications or amendments.  The foregoing provisions are not intended to
be deemed Landlord’s consent to any Alterations or to a use of the demised
premises not otherwise permitted hereunder nor to require Landlord to effect
such modifications or amendments of any Certificate of Occupancy.


 


2.3.  Tenant shall not at any
time use or occupy the demised premises or the Building, or suffer or permit
anyone to use or occupy the demised premises, or do anything in the demised
premises or the Building, or suffer or permit anything to be done in, brought
into or kept on the demised premises, which in any manner (a) violates the
Certificate of Occupancy for the demised premises or for the Building as it
currently exists; (b) causes injury to the demised premises or the
Building or any equipment, facilities or systems therein; (c) constitutes
a violation of the laws and requirements of any public authorities or the
requirements of insurance bodies; (d) impairs the character, reputation or
appearance of the Building as a first-class office building; (e) impairs
the proper and economic maintenance, operation and repair of the Building
and/or its equipment, facilities or systems; (f) constitutes a nuisance,
public or private; (g) makes unobtainable from reputable insurance
companies authorized to do business in New York State all-risk property
insurance, or liability, elevator, boiler or other insurance at


 


4





















 


standard rates required
to be furnished by Landlord under the terms of any mortgages covering the
demised premises and/or the Building; or (h) discharges objectionable
fumes, vapors or odors into the Building’s flues or vents or otherwise.


 


2.4.  Tenant shall not use, or
suffer or permit anyone to use, the demised premises or any part thereof, for
(a) a retail branch of a banking, trust company, or safe deposit business open
to the general public, (b) a savings bank, a savings and loan association,
or a loan company operating in the demised premises an “off the street”
business to the general public at the demised premises, (c) the sale of
travelers’ checks and/or foreign exchange, (d) a retail branch of a stock
brokerage office or for stock brokerage purposes open to the general public,
(e) a restaurant and/or bar and/or the sale of confectionery and/or soda
and/or beverages and/or sandwiches and/or ice cream and/or baked goods (except
if expressly provided otherwise elsewhere in this Lease), (f) the business
of photographic reproductions and/or offset printing (except that Tenant and
its permitted assignees, subtenants and occupants may use part of the demised
premises for photographic reproductions and/or offset printing in connection
with, either directly or indirectly, its own business and/or activities),
(g) an employment or travel agency, (h) a school or classroom,
(i) medical or psychiatric offices, (j) conduct of an auction open to
the public, (k) gambling activities or (l) the conduct of obscene,
pornographic or similar disreputable activities.  Further, the demised premises may not be used
by (i) an agency, department or bureau of the United States Government,
any state or municipality within the United States or any foreign government,
or any political subdivision of any of them, (ii) any charitable,
religious, union or other not-for-profit organization, or (iii) any tax
exempt entity within the meaning of Section 168(j)(4)(A) of the Internal
Revenue Code of 1986, as amended, or any successor or substitute statute, or
rule or regulation applicable thereto (as same may be amended).


 


ARTICLE 3


 


PREPARATION OF THE
DEMISED PREMISES


 


3.1.  (a) 
Except as expressly provided to the contrary in this Section 3.1(a),
Tenant shall accept the demised premises “as is” on the date hereof and
Landlord shall not be required to perform any work, install any fixtures or
equipment or render any services to make the Building or the demised premises
ready or suitable for Tenant’s initial use or occupancy.  Landlord shall perform the work described on Exhibit D
annexed hereto (herein called “Landlord’s
Work“) in the manner and subject to the provisions of Exhibit D.  The Landlord’s
Work shall be deemed to have been substantially completed even though
(i) minor details or adjustments may not then be completed, and
(ii) items which in accordance with good construction practice should be
performed after completion of Tenant’s Work may not then be completed, subject
to Landlord’s obligation to complete Landlord’s Work.  The taking of possession of the demised
premises by Tenant for the performance of Alterations or for any other reason
whatsoever (other than Customary Pre-Construction Activities) shall be deemed
an


 


5





















 


acceptance of the demised
premises and substantial completion by Landlord of Landlord’s Work; provided,
however, if Tenant shall furnish Landlord with a list (herein called the “Punchlist”), within thirty (30)
days after the date Tenant takes possession of the demised premises, specifying
the items of Landlord’s Work which have not been substantially completed, then
the taking of possession of the demised premises by Tenant shall be deemed an
acceptance of the demised premises, and substantial completion by Landlord of
Landlord’s Work, except with respect to the items set forth on the Punchlist,
but the giving of the Punchlist shall not affect the occurrence of the
Commencement Date.  Landlord shall
promptly commence and complete the items set forth on the Punchlist.


 


(b)           If Landlord fails to
complete Landlord’s Work on or before November 30, 2004, save for Force Majeure
Causes, the Rent Abatement Period shall be increased by one day for each day
until completion.  Tenant hereby waives
any right to rescind this Lease under the provisions of Section 223(a) of
the Real Property Law of the State of New York, and agrees that the provisions
of this Section are intended to constitute “an express provision to the
contrary” within the meaning of said Section 223(a).


 


3.2.  (a)  Landlord shall allow Tenant a credit in the
amount of ONE MILLION THREE HUNDRED SEVENTY ONE THOUSAND FIVE HUNDRED FIFTY AND
00/100 ($1,371,550) DOLLARS (herein called the “Work Credit“), which credit may be applied against the
cost and expense incurred by Tenant in connection with Tenant’s initial
alterations in and to the demised premises (“Tenant’s Work“) and the cost and expense of architectural,
consulting, engineering fees in connection with Tenant’s Work as well as Tenant’s
move into the demised premises.  In the
event that the costs and expenses of Tenant’s Work shall exceed the amount of
the Work Credit, Tenant shall be entirely responsible for such excess.  Any portion of the Work Credit not used for
the express purposes described in the immediately preceding sentence shall be
paid to Tenant within thirty (30) days following demand made at any time after
Tenant has completed Tenant’s Work and begun occupying the demised premises for
the conduct of its business.  Landlord
shall pay to Tenant installments of the Work Credit within thirty (30) days
after Landlord’s receipt of a written request for disbursement together with
the required accompanying documentation.


 


(b)           The Work Credit
shall be payable to Tenant in installments as Tenant’s Work progresses, but in
no event more frequently than monthly. 
Prior to the payment of any such installment, Tenant shall deliver to
Landlord a written request for disbursement which shall be accompanied by (1)
invoices for the portion of Tenant’s Work or other item referenced in such
requisition, (2) a certificate signed by Tenant’s architect certifying that the
portion of Tenant’s Work referenced in said requisition and represented by the
aforesaid invoices has been satisfactorily completed substantially in
accordance with Tenant’s final plan, (3) partial lien waivers from the general
contractor, performing any such work releasing Tenant for liability for the
same.  Reasonably


 


6





















 


promptly following the
completion of Tenant’s Work, Tenant shall provide Landlord with (i) a
certificate signed by Tenant’s architect certifying that Tenant’s Work has been
satisfactorily completed substantially in accordance with the final plan, (ii)
all Building Department sign-offs, inspection certificates and any permits
required to be issued by any governmental entities having jurisdiction
thereover, and (iii) a final lien waiver from the general contactor performing
Tenant’s Work.


 


(c)           At any and all times
during the progress of Tenant’s Work, representatives of Landlord shall have
the right of access to the demised premises and inspection thereof at
reasonable times on reasonable notice to Tenant.


 


(d)           The Work Credit is
being given for the benefit of Tenant only. 
No third party shall be permitted to make any claims against Landlord or
Tenant with respect to any portion of the Work Credit.


 


3.3.  (a)  As part of
the performance of Tenant’s Work, Tenant shall perform certain renovation work
in the core bathrooms of the demised premises and, in connection therewith,
shall bring such core bathrooms of the demised premises into compliance with
the Americans With Disabilities Act (“Tenant’s Bathroom Work”).  In addition to the Work Credit, Landlord
shall allow Tenant a credit of One Hundred Fifty Thousand and 00/100 ($150,000.00)
DOLLARS (herein called the “Bathroom Work
Credit“), which credit shall be applied solely against the cost
and expense incurred by Tenant for the actual construction of Tenant’s Bathroom
Work, including architectural, consulting, engineering fees, and for no other
purposes.  In the event that the costs
and expenses of Tenant’s Bathroom Work shall exceed the amount of the Bathroom
Work Credit, Tenant shall be entirely responsible for such excess.  If upon completion of Tenant’s Bathroom Work,
and complete payment by Tenant of all costs and expenses thereof there shall
remain unused portions of the Bathroom Work Credit, then, provided Tenant is
not in default under any of the terms, covenants or conditions of this Lease on
the part of Tenant to be observed or performed beyond applicable grace and cure
periods, the amount of such unused Bathroom Work Credit shall be applied as a
rent credit against the next accruing installments of fixed annual rent payable
by Tenant under this Lease.  Landlord
shall pay to Tenant installments of the Bathroom Work Credit within thirty (30)
days after Landlord’s receipt of a written request for disbursement together
with the required accompanying documentation.


 


(b)           The Bathroom Work
Credit shall be payable to Tenant in installments as Tenant’s Bathroom Work
progresses, but in no event more frequently than monthly.  Prior to the payment of any such installment,
Tenant shall deliver to Landlord a written request for disbursement which shall
be accompanied by (1) invoices for the portion of Tenant’s Bathroom Work
referenced in such requisition, (2) a certificate signed by Tenant’s
architect certifying that the portion of Tenant’s Bathroom Work referenced in said
requisition and represented by the aforesaid invoices has been satisfactorily
completed substantially in accordance with Tenant’s final plan and,


 


7





















 


(3) partial lien
waivers from the contractor who shall have performed work which was the subject
of the immediately preceding distribution by Landlord to Tenant of a portion of
the Bathroom Work Credit.  Reasonably
promptly following the completion of Tenant’s Bathroom Work, Tenant shall
provide Landlord with (i) a certificate signed by Tenant’s architect
certifying that Tenant’s Bathroom Work has been satisfactorily completed
substantially in accordance with the final plan, (ii) all Building
Department sign-offs, inspection certificates and any permits required to be
issued by any governmental entities having jurisdiction thereover, and
(iii) a final lien waiver from the contractor performing Tenant’s Bathroom
Work.


 


(c)           The Bathroom Work
Credit is being given for the benefit of Tenant only.  No third party shall be permitted to make any
claims against Landlord or Tenant with respect to any portion of the Bathroom
Work Credit.


 


(d)           During the
performance of Landlord’s Work and Tenant’s Work, Landlord at its expense shall
expeditiously demolish the existing women’s room area and slab patch the area
prior to the commencement of Tenant’s Bathroom Work.  Landlord shall use its best efforts to
accomplish the foregoing by November 30, 2004.  Such demolition and patching shall not be
deemed Landlord’s Work.


 


3.4.  Notwithstanding anything to
the contrary contained in this Lease, in connection with the performance of
Tenant’s Work and Tenant’s Bathroom Work by Plaza Construction Corp., neither
Tenant nor Tenant’s contractors or subcontractors shall be charged for freight
elevator usage in connection with the performance of Tenant’s Work and Tenant’s
Bathroom Work, or during Tenant’s initial move-in, provided, (i) such free
usage of the freight elevator shall not exceed (a) twelve (12) consecutive
hours of usage on business days (eight (8) of such twelve (12) hours occurring
between the hours of 8:00 a.m. and 6:00 p.m.) and (b) eight (8)
consecutive hours on Saturdays, and (ii) (a) Tenant shall be entitled
to free usage of the freight elevators in order to meet Tenant’s reasonable
needs for freight elevator usage on Sundays in connection with Tenant’s Work
and Tenant’s Bathroom Work and (b) Tenant shall be entitled to unlimited
free usage of the freight elevators on Sundays in connection with Tenant’s
initial move-in.  Landlord hereby agrees
that during such time as Tenant shall be entitled to free usage of the freight
elevators as hereinbefore provided, Tenant shall not be charged for Landlord’s
cost of providing an elevator operator and/or security guard in connection
therewith.


 


3.5.  As part of Tenant’s Work,
Tenant may (i) install a louvre in the east side elevation to match the
existing louvers, (ii) remove the existing window tinting and
(iii) tap into the exhaust duct.


 


8





















 


ARTICLE 4


 


TAX ESCALATION


 


4.1.  Tenant shall pay to
Landlord, as additional rent, tax escalation in accordance with this Article 4:


 


Definitions: 
For purposes of this Article 4, the following definitions shall
apply:


 


(a)           The term “base tax year” shall mean the New
York City real estate tax year commencing July 1, 2004 and ending June 30, 2005.


 


(b)           The term “The Percentage“ for purposes of
computing tax escalation shall mean two and forty-five one-hundredths of one percent
(2.45%).


 


(c)           The term “Land“ shall mean the tax lot
located at 299 Park Avenue.


 


(d)           The term “comparative year” for purposes of
computing tax escalation shall mean the twelve (12) months following the base
tax year, and each subsequent period of twelve (12) months.


 


(e)           The term “real estate taxes” shall mean
(i) the real estate taxes, vault taxes, assessments and special
assessments, and business improvement district or similar charges levied,
assessed or imposed upon or with respect to the building project, by any
federal, state, municipal or other governments or governmental or
quasi-governmental bodies or authorities, and (ii) all taxes assessed or
imposed with respect to the rentals payable hereunder other than general income
and gross receipts taxes.  If at any time
during the term of this Lease the methods of taxation prevailing on the date
hereof shall be altered so that in lieu of the whole or any part of such real
estate taxes, assessments and special assessments now imposed on real estate,
there shall be levied, assessed or imposed (A) a tax, assessment, levy,
imposition, license fee or charge wholly or partially as a capital levy or
otherwise on the rents received therefrom, or (B) any other such
additional or substitute tax, assessment, levy, imposition, fee or charge, then
all such taxes, assessments, levies, impositions, fees or charges or the part
thereof so measured or based shall be deemed to be included within the term “real
estate taxes” for the purposes hereof. 
The term “real estate taxes” shall, notwithstanding anything to the
contrary contained herein, exclude any net income, franchise or “value added”
tax, inheritance tax or estate tax imposed or constituting a lien upon Landlord
or all or any part of the Land or Building.  Notwithstanding anything to the contrary
contained herein, if and to the extent that business improvement district or
similar charges are levied, assessed or imposed upon or with respect to the
building project during the base tax year and thereafter cease to be levied,
assessed or imposed upon or with respect to the building project, the
corresponding business improvement district or similar charges that so cease to
be levied,


 


9





















 


assessed or imposed shall
be deemed deleted from the real estate taxes payable during the base tax year.


 


(f)            The phrase “real estate taxes payable during the base tax year”
shall mean that amount obtained by multiplying (i) $79,050,000 being the
assessed value applicable to the Land and the Building and curbs, sidewalks and
plazas on and/or immediately adjoining the Land (the “building
project“) which is applied to the tax rate in determining the
amounts payable to the City of New York for the base tax year by (ii) the
tax rate applicable to the Borough of Manhattan for the base tax year.


 


4.2.  (a)  If the real estate taxes paid for any
comparative year shall exceed the amount of the real estate taxes payable
during the base tax year, commencing after the Rent Abatement Period Tenant
shall pay to Landlord, as additional rent for such comparative year, an amount
equal to The Percentage of the excess. 
Before or after the start of each comparative year, Landlord shall
furnish to Tenant a statement of the real estate taxes payable for such
comparative year, and a statement of the real estate taxes payable during the
base tax year.  If the real estate taxes
payable for such comparative year exceed the real estate taxes payable during
the base tax year, additional rent for such comparative year, in an amount
equal to The Percentage of the excess, shall be due from Tenant to Landlord,
and such additional rent shall be payable by Tenant to Landlord as
follows:  after Landlord has furnished
Tenant with the aforesaid statement, Tenant shall pay Landlord with the monthly
installments of rent due on June 1 and December 1 of such comparative year an
amount equal to one-half (1/2) of the total sum of additional rent due from
Tenant to Landlord pursuant to such statement for such comparative year, until
such time as a new statement for a subsequent comparative year shall become
effective.  If there shall be any
increase in the real estate taxes for any comparative year, whether during or
after such comparative year, or if there shall be any decrease in the real
estate taxes for any comparative year, the tax escalation payment for such
comparative year shall be appropriately adjusted and paid or refunded, as the
case may be, in accordance herewith; in no event, however, shall real estate
taxes be deemed to have been reduced below the real estate taxes payable during
the base tax year.  If during the term of
this Lease, real estate taxes are required to be paid (either to the
appropriate taxing authorities or as tax escrow payments to a Superior
Mortgagee) in full or in monthly, quarterly, or other installments, on any
other date or dates than as presently required, then at Landlord’s option,
Tenant’s tax escalation payments shall be correspondingly accelerated or
revised so that said Tenant’s tax escalation payments are due on the date
payments are due to the taxing authorities or such Superior Mortgagee.  If a statement is furnished to Tenant after
the commencement of the comparative year in respect of which such statement is
rendered, Tenant shall, within thirty (30) days thereafter pay to Landlord an
amount equal to those installments or the total tax escalation payable as
provided in this Section 4.2(a) during the period prior to the first day
of the month next succeeding the month in which the applicable statement has
been furnished.


 


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(b)           Should the real
estate taxes payable during the base tax year be reduced by final determination
of legal proceedings, settlement or otherwise, then, the real estate taxes
payable during the base tax year shall be correspondingly revised, the
additional rent theretofore paid or payable hereunder for all comparative years
shall be recomputed on the basis of such reduction, and Tenant shall pay to
Landlord as additional rent, within ten (10) days after being billed therefor,
any deficiency between the amount of such additional rent as theretofore
computed and the amount thereof due as the result of such recomputations.


 


(c)           If, after Tenant
shall have made a payment of additional rent under Section 4.2(a) or Section 4.2(b)
hereof, Landlord shall receive a refund of any portion of the real estate taxes
payable during any comparative year on which such payment of additional rent
shall have been based, as a result of a reduction of such real estate taxes by
final determination of legal proceedings, settlement or otherwise, Landlord
shall either within thirty (30) days after receiving the refund pay to Tenant
the Percentage of the net refund including any interest thereon (after
deducting from such total refund the actual out-of-pocket reasonable and
customary appraisal, accounting and legal fees paid to obtain the same, to the
extent that such costs and expenses were not theretofore collected from Tenant
for such comparative year); provided, however, such payment or credit to Tenant
(exclusive of the interest thereon) shall in no event exceed Tenant’s tax
escalation payment paid for such comparative year.


 


(d)           The statements of
the real estate taxes to be furnished by Landlord as provided above shall
constitute a final determination as between Landlord and Tenant of the real
estate taxes for the periods represented thereby, unless Tenant within one
hundred eighty (180) days after they are furnished shall in writing challenge
their accuracy or their appropriateness. 
If Tenant shall dispute said statements, then pending the resolution of
such dispute Tenant shall pay the additional rent to Landlord in accordance
with the statements furnished by Landlord.


 


(e)           In no event shall
the fixed annual rent under this Lease be reduced by virtue of this Article 4.


 


(f)            If the Rent Commencement
Date occurs during the first comparative year, then the additional rent due
hereunder for such first comparative year shall be a proportionate share of the
said additional rent for the entire comparative year, said proportionate share
shall be based upon the length of time that this Lease shall have been in
existence during such first comparative year after the Rent Commencement Date.  Upon the date of any expiration or
termination of this Lease (except termination because of Tenant’s default),
whether the same be the date hereinbefore set forth for the expiration of the
term or any prior or subsequent date, a proportionate share of said additional
rent for the comparative year during which such expiration or termination
occurs shall immediately become due and payable by Tenant to Landlord, if it
was not theretofore already billed and paid. 
The said proportionate share shall be based upon the


 


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length of time that this
Lease shall have been in existence during such comparative year.  Landlord shall promptly cause statements of
said additional rent for that comparative year to be prepared and furnished to
Tenant.  Landlord and Tenant shall
thereupon make appropriate adjustments of amounts then owing.


 


(g)           Landlord’s and
Tenant’s obligation to make the adjustments referred to in Sections 4.2(b) and
4.2(f) hereof shall survive any expiration or sooner termination of this Lease.


 


(h)           Nothing contained in
this Lease shall obligate Landlord to bring any application or proceeding
seeking a reduction in real estate taxes or assessed valuation.  However, Landlord will abide prudent and
customary practice in seeking a reduction in real estate taxes and assessed
valuation.  Tenant, for itself and its
immediate and remote subtenants and successors in interest hereunder, hereby
waives, to the extent permitted by law, any right Tenant may now or in the
future have to protest or contest any real estate taxes or to bring any
application or proceeding seeking a reduction in real estate taxes or assessed
valuation or otherwise challenging the determination thereof.


 


(i)            The benefit of any
discount for the early payment or prepayment of real estate taxes shall accrue
solely to the benefit of Landlord and such discount shall not be subtracted
from real estate taxes.


 


(j)            Landlord’s failure
to render or delay in rendering a bill with respect to any installment of real
estate taxes shall not prejudice Landlord’s right to thereafter render such a
bill for such installment, nor shall the rendering of a bill for any
installment prejudice Landlord’s right to thereafter render a corrected bill
for such installment.  Notwithstanding
the foregoing, bills must be rendered within three (3) years after Landlord has
received the relevant real estate tax bills.


 


(k)           Tenant acknowledges
that the building project includes the Building and the Land, and Landlord and
Tenant agree that if Landlord shall add any adjoining parcel(s) of land or property
to the Land or change or improve the Building there shall be equitable
adjustments to The Percentage, so as to offset the impact of such acquisition,
changes and/or improvements.


 


ARTICLE 5


 


EXPENSE ESCALATION


 


5.1.  Tenant shall pay to
Landlord, as additional rent, expense escalation in accordance with this Article 5:


 


Definitions: 
For purposes of this Article 5, the following definitions shall
apply:


 


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(a)           The term “Expense Base Factor“ shall mean the
amount of Expenses for Landlord’s fiscal year commencing December 1, 2004
and ending November 30, 2005.


 


(b)           The term “The Percentage“ for purposes of
computing expense escalation shall mean two and forty-five one-hundredths of
one percent (2.45%).


 


(c)           The term “comparative year” for the purposes
of computing expense escalation shall mean the twelve (12) consecutive month
period commencing after the term of this Lease commences, which constitutes the
fiscal or calendar year generally utilized by Landlord for computing expense
escalation for other tenants of the Building, and each subsequent period of
twelve (12) months during which occurs any portion of the term of this Lease.


 


(d)           The term “Expenses“ shall mean the total of
all the costs and expenses incurred or borne by Landlord and Landlord’s
affiliates and/or on their behalf determined in a consistent manner with
respect to the repair, replacement, operation, maintenance and/or security of
the building project and the services provided tenants therein, including,
without limitation, the costs and expenses incurred for and with respect
to:  steam and any other fuel; water
rates and sewer rents; air-conditioning, ventilation and heating (subject to
adjustment as hereinafter described); Building electric current; metal,
elevator cab, and all interior and exterior cleaning and window washing; lobby
and plazas maintenance and cleaning; elevators; escalators; protection and
security; lobby decoration and interior and exterior landscape maintenance;
repairs, replacements and improvements which are appropriate for the continued
operation of the Building as a first-class building; maintenance; painting of
non-tenant areas; supplies; fire, extended coverage, terrorism, boiler and
machinery, apparatus, public liability and property damage, rental and plate
glass insurance and any other insurance required by a mortgagee or deemed
necessary by Landlord in its reasonable discretion; wages, salaries, disability
benefits, pensions, hospitalization, retirement plans and group insurance
respecting employees of Landlord up to and including the building manager;
uniforms and working clothes for such employees and the cleaning thereof;
expenses imposed on Landlord pursuant to law or to any collective bargaining
agreement with respect to such employees; worker’s compensation insurance,
payroll, social security, unemployment and other similar taxes with respect to
such employees; the cost for a bookkeeper and for an accountant; professional
and consulting fees, including legal and auditing fees; association fees or
dues; and an annual fee for management of the Building (the “Management Fee“).


 


The Management Fee included in the Expense Base Factor
(the “Base Management Fee“) shall be the
management fee for the fiscal year ending November 30, 2005 which the
parties hereby agree shall be deemed to be $1,117,546, and such Base Management
Fee shall not be subject to increase or decease pursuant to any provision of
this Lease or otherwise.  Said Base
Management Fee shall be increased for each


 


13





















 


comparative year for which Tenant pays additional rent
hereunder, by an amount equal to the percentage of the Base Management Fee that
(1) the CPI for the comparative year involved bears to (2) the CPI in
effect on December 1, 2004.


 


The fees for cleaning (the “Cleaning Fee“) included in the Expense
Base Factor (the “Base Cleaning Fee“)
shall be the Cleaning Fee for the fiscal year ending November 30, 2005
(the “Base Cleaning Year“).  Said Base Cleaning Fee shall be increased for
the first comparative year for which Tenant pays additional rent hereunder, by
multiplying (A) the Base Cleaning Fee by (B) the percentage increase
in the Wage Rate from the Base Cleaning Year to such comparative year, and
adding such product to the Base Cleaning Fee. 
Thereafter, the Cleaning Fee shall be increased for each comparative
year (the “Applicable Comparative Year“)
by multiplying (A) the Cleaning Fee for the immediately preceding
comparative year (the “Prior Year Cleaning
Fee“) by (B) the percentage increase in the Wage Rate from
the immediately preceding comparative year to the Applicable Comparative Year,
and adding such product to the Prior Year Cleaning Fee.  Annexed hereto as Exhibit B is a sample
calculation of the manner in which the Cleaning Fee will be calculated for each
comparative year.


 


The term “Wage Rate“
shall mean the minimum regular hourly wage rate (including fringe benefits) for
employment of porters in Class A office buildings from time to time established
by Agreement between The Realty Advisory Board on Labor Relations, Inc. and
Local 32B-32J of the Building Service Employees International Union AFL-CIO
(the “Union“) or by the successors to
either or both of them.  If the Union or
its successor shall cease to exist or function, increases in fees for cleaning
for purposes of computing Expenses shall be based upon Landlord’s reasonable
determination of the then-standard practice for escalating cleaning fee charges
in first-class office buildings in the Borough of Manhattan that are comparable
to the Building, provided that if there is more than one standard practice,
Landlord shall select the standard practice that will put the parties, as
closely as possible, in the same economic position with respect to fees for
cleaning included in Expenses that the parties are in on the date of this
Lease.  The manner of calculation used to
compute the Wage Rate for the Base Cleaning Year, and which will be used to
compute the Wage Rate for each Comparative Year thereafter, is shown on Exhibit
C annexed hereto.


 


Notwithstanding anything to the contrary contained
herein, the term “Expenses,” shall not include the following items:


 


(1)           leasing commissions
or brokerage commissions; the cost of tenant installations, decorations and
improvements (and of the supervision and administration of the construction of
such improvements) made by or for tenant(s) of the Building, the costs incurred
in the preparation, remodeling or renovation of space for occupancy by tenants,
and any other contribution or concession by Landlord to the cost of tenant
improvements;


 


14





















 


(2)           salaries, fringe
benefits and other compensation for personnel above the grade of building
manager;


 


(3)           all expenditures for
capital improvements except (x) those, if any, which under generally
applied real estate practice (consistently applied) are expensed (i.e.,
it being understood by way of illustration but not by way of limitation, that
Landlord may expense an item if Landlord can reasonably demonstrate that it
would be less expensive to replace such item in a given year than repair it in
the same year and therefore it would be less costly to Tenant in the applicable
comparative year) and (y) capital expenditures required by Legal
Requirements, in which case the annual amortization of the cost of the capital
expenditures permitted to be included as Expenses in accordance with this
item (y) shall be included in Expenses for the comparative year in which
the costs are incurred and subsequent comparative years, such annual
amortization to be calculated on a straight line basis over fifteen (15) years;


 


(4)           cost of repairs or
replacements incurred by reason of fire or other casualty or caused by the
exercise of the right of eminent domain;


 


(5)           advertising,
entertaining and promotional expenditures;


 


(6)           other costs and
expenses otherwise includible in Expenses, to the extent that Landlord is
reimbursed from other sources for such costs and expenses (excluding, however,
any reimbursement from tenants of the Building, including Tenant, pursuant to
so-called escalation provisions in the nature of this Article 5), provided
that Tenant will only be credited for actual reimbursement for actual costs
incurred by Landlord, and Tenant will not be credited for any profit above
Landlord’s cost;


 


(7)           costs incurred in
performing work or furnishing services to or for individual tenants (including
Tenant) to the extent that such work or service is in excess of any work or
service Landlord at its expense is obligated to furnish to or for Tenant;


 


(8)           debt service on
mortgages and other loans (i.e., interest and principal payments and
other debt costs), ground rents, and financing and refinancing costs (and costs
associated with such financing and refinancing) in respect of any loan or any mortgage
placed on the building project or any portion thereof and any and all costs
incurred in obtaining or endeavoring to obtain the same;


 


(9)           depreciation, except
as otherwise expressly provided herein;


 


(10)         attorneys’ fees,
appraisal fees or accountants’ fees to the extent incurred in connection with
the negotiation and preparation of new or renewal leases in the Building or in
enforcing Landlord’s rights under leases (except to the extent that the
enforcement of such rights benefits one or more tenants of the Building
generally and Landlord does not recover such fees from the offending tenant),
or in connection with financing or transferring the Building or the Real
Property or Landlord’s interest therein,


 


15





















 


or legal or accounting
fees in connection with tax returns, tax reporting or accounting at the
landlord entity level;


 


(11)         any expense to the
extent of which Landlord is compensated by insurance and any deductible amount
thereunder;


 


(12)         costs of acquiring,
leasing, insuring, restoring, removing or replacing works of art of the quality
and nature of “fine art”;


 


(13)         any cost incurred in
connection with the preparation of any space in the Building for any tenant’s
(including Tenant’s) occupancy and any other contribution by Landlord to the
cost of such tenant improvements;


 


(14)         costs incurred with
respect to removal or encapsulation or other treatment of hazardous material as
defined under present or future state, federal or local laws relating to the
environment but excepting costs of normal and customary testing and monitoring;


 


(15)         costs of placing the
common areas of the Building in compliance with the ADA except for costs of
placing the common areas of the Building in compliance with amendments to, or
changes in (as opposed to a first interpretation of) governmental agency
interpretations of or regulations governing the ADA after the Commencement Date
only which shall be treated in the same manner as capital expenditures under
(3)(y) above;


 


(16)         any cost representing
an amount paid to an affiliate of Landlord to the extent the same is in excess
of the amount which would reasonably have been paid in the absence of such
relationship;


 


(17)         costs otherwise
includable in Expenses to the extent reimbursed to Landlord directly by Tenant
or other tenants (other than through provisions similar to this Article 5);


 


(18)         the cost of any
judgment, settlement, or arbitration award resulting from any liability of
Landlord or Landlord’s failure to meet its legal or contractual obligations,
and all expenses incurred in connection therewith (other than a liability for
amounts otherwise includable in Expenses hereunder);


 


(19)         the cost of providing
any service that would customarily be provided by a managing agent and the cost
of which would customarily be included in the Management Fee;


 


(20)         the cost of acquiring
or replacing any separate electrical meter, water meter or other utility meters
or submeters that measure consumption by any of the tenants in the Building;


 


16





















 


(21)         costs relating to
withdrawal liability or unfunded pension liability under the Multi-Employer
Pension Plan Act or similar laws;


 


(22)         costs incurred in
connection with the acquisition or sale of air rights, transferable development
rights, easements or other real property interests;


 


(23)         costs to correct any
material misrepresentation or satisfy any indemnification obligations of Landlord,
and any legal or consultant costs incurred in connection with disputes with
tenants of the Building (except to the extent that the resolution of such
disputes benefit one or more tenants of the Building generally and Landlord
does not recover such fees from the offending tenant);


 


(24)         any increase in
insurance premiums for the Building due to acts or omissions of tenants of the
Building or uses or particular manners of use of space in the Building by
tenants, it being understood that Tenant will not dispute Landlord’s reasonable
determination that such increase is not attributable to another tenant;


 


(25)         that portion of costs
incurred in connection with the Building and other properties that are
reasonably attributable to such other properties;


 


(26)         real estate, franchise,
transfer gains, estate, inheritance, transfer, corporate, unincorporated
business, succession, gift, capital stock or income taxes imposed upon
Landlord;


 


(27)         any compensation paid
to clerks, attendants or other persons in commercial concessions operated by
Landlord;


 


(28)         any interest or
penalty charges incurred by Landlord due to the negligent or willful violation
of any Legal Requirement by Landlord;


 


(29)         lease takeover costs
and costs incurred by Landlord in connection with enforcement of other leases
or subleases in the Building;


 


(30)         mail center services
for other tenants in the Building if such services are not made available to
Tenant;


 


(31)         expenses arising from
Landlord’s charitable or political contributions;


 


(32)         rent paid by Landlord
for office space (including office space used for a management office) and any
other expenses related to such office space; provided, however, that Landlord
may include in Expenses the rental value of Landlord’s Building office or other
space utilized by the personnel of Landlord, Landlord’s affiliates or Landlord’s
managing agent in connection with the repair, replacement, maintenance,
operation and/or security of the building project (to the extent that such
rental value shall


 


17





















 


be based on no more than
1,500 rentable square feet of space as if same were located in the basement of
the Building), and all Building office expenses, such as telephone, utility,
stationery and similar expenses incurred in connection therewith;


 


(33)         dues and fees for
trade and industry associations and costs of their related activities to the
extent such dues, fees and costs exceed those customarily incurred by an owner
of an office building that is similarly situated;


 


(34)         expenses for repairs
and maintenance which are covered by warranties or guarantees (except to the
extent that Landlord, acting diligently, is unable to enforce such warranties
or guarantees);


 


(35)         expenses allocable
directly and solely to the ground floor retail space of the Building;


 


(36)         the cost of electric
energy furnished directly by Landlord to Tenant and other tenants in the
Building; and


 


(37)         Building reserves.


 


If Landlord shall purchase any item of capital
equipment or make any capital expenditure designed to result in savings or
reductions in Expenses, then the costs for same shall be included in Expenses.  The costs of capital equipment or capital
expenditures are so to be included in Expenses for the comparative year in which
the costs are incurred and subsequent comparative years, on a straight line
basis, to the extent that such items are amortized over such period of time as
reasonably can be estimated as the time in which such savings or reductions in
Expenses are expected to equal Landlord’s costs for such capital equipment or
capital expenditure, with an interest factor equal to the Base Rate at the time
of Landlord’s having incurred said costs. 
If Landlord shall lease any such item of capital equipment designed to
result in savings or reductions in Expenses, then the rentals and other costs
paid pursuant to such leasing shall be included in Expenses for the comparative
year in which they were incurred.


 


(e)           If during all or
part of fiscal year December 1, 2004 through November 30, 2005 or any
comparative year, Landlord shall not furnish any particular item(s) of work or
service (which would constitute Expenses hereunder) to portions of the
Building, due to the fact that such portions are not occupied or leased, or
because such item of work or service is not required or desired by the tenant
of such portion, or such tenant is itself obtaining and providing such item of
work or service, then, for the purposes of computing the additional rent
payable hereunder, the amount of Expenses for such item for such period shall
be increased by an amount equal to the additional Expenses which would
reasonably have been incurred during such period by Landlord if it had at its
own expense furnished such item of work or services to such portion of the
Building.


 


18





















 


5.2.  (a)  If Expenses for any comparative year shall be
greater than the Expense Base Factor, commencing after the Rent Abatement
Period, Tenant shall pay to Landlord, as additional rent for such comparative
year in the manner hereinafter provided, an amount equal to The Percentage of
the excess of the Expenses for such comparative year over the Expense Base
Factor (such amount being herein called the “Expense
Payment“).


 


Landlord may furnish to Tenant, prior to the
commencement of each comparative year, a written statement setting forth in
reasonable detail Landlord’s reasonable estimate of the Expense Payment for
such comparative year.  Tenant shall pay
to Landlord on the first day of each month during the comparative year in which
the Expense Payment will be due, an amount equal to one-twelfth (1/12th) of
Landlord’s reasonable estimate of the Expense Payment for such comparative
year.  If, however, Landlord shall not
furnish any such estimate for a comparative year or if Landlord shall furnish
any such estimate for a comparative year subsequent to the commencement
thereof, then (i) 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 Article 5 in respect of the last month of the
preceding comparative year; (ii) after such estimate is furnished to Tenant,
Landlord shall give notice to Tenant stating whether the installments of the
Expense Payment previously made for such comparative year were greater or less
than the installments of the Expense Payment to be made for the comparative
year in which the Expense Payment will be due in accordance with such estimate,
and (A) if there shall be a deficiency, Tenant shall pay the amount
thereof within thirty (30) days after demand therefor, or (B) if there
shall have been an overpayment, Landlord shall concurrently with the delivery
of such notice refund to Tenant the amount thereof; and (iii) on the first
day of the month following the month in which such estimate is furnished to
Tenant and monthly thereafter throughout the remainder of such comparative year
Tenant shall pay to Landlord an amount equal to one-twelfth (1/12th) of the
Expense Payment shown on such estimate. 
Landlord may, during each comparative year, furnish to Tenant a revised
statement of Landlord’s reasonable estimate of the Expense Payment for such
comparative year, and in such case, the Expense Payment for such comparative
year shall be adjusted and paid or refunded or credited, as the case may be,
substantially in the same manner as provided in the preceding sentence.


 


(b)           Landlord shall
furnish to Tenant a statement setting forth the Expense Payment payable by
Tenant (a “Landlord’s Statement“)
for each comparative year (and shall endeavor to do so within one hundred
eighty (180) days after the end of each comparative year).  Such statement shall set forth in reasonable
detail the Expenses for such comparative year. 
If the Landlord’s Statement shall show that the sums paid by Tenant, if
any, under Section 5.2(a) hereof exceeded the Expense Payment to be paid
by Tenant for the comparative year for which such Landlord’s Statement is
furnished, Landlord’s Statement shall be sent to Tenant together with a refund
to Tenant of the


 


19





















 


amount of such excess
with interest thereon at the rate specified in Section 20.6; and if the
Landlord’s Statement for such comparative year shall show that the sums so paid
by Tenant were less than the Expense Payment to be paid by Tenant for such
comparative year, Tenant shall pay the amount of such deficiency within thirty
(30) days after demand therefor.  The
Landlord’s Statement furnished to Tenant shall constitute a final determination
as between Landlord and Tenant of the Expenses for the periods represented
thereby, unless Tenant within fourteen (14) months after such Landlord’s
Statement is furnished shall give a notice to Landlord that it disputes its
accuracy or appropriateness, which notice shall specify the particular respects
in which the statement is inaccurate or inappropriate.  Pending the resolution of such dispute,
Tenant shall pay the additional rent to Landlord in accordance with the
Landlord’s Statement furnished by Landlord. 
Upon request Landlord shall furnish a Landlord’s Statement for the Base Year.


 


(c)           (i)            Tenant, upon reasonable notice given
within the fourteen (14) month period provided for in Section 5.2(b)
above, may elect to have Tenant’s designated (in such notice) Audit
Representative examine such of Landlord’s books and records (collectively the “Records“) as are directly relevant to
the Landlord’s Statement in question (including Records for the Base Year),
together with reasonable supporting data therefor.  In making such examination, Tenant agrees,
and shall cause its designated Audit Representative and its attorneys,
accountants and other professionals to agree, to keep confidential (A) any
and all information contained in such Records and (B) the circumstances
and details pertaining to such examination and any dispute or settlement
between Landlord and Tenant arising out of such examination, except as may be
required (1) by applicable Legal Requirements or (2) by a court of
competent jurisdiction or arbitrator or in connection with any action or
proceeding before a court of competent jurisdiction or arbitrator, or
(3) to be disclosed to Tenant’s attorneys, accountants and other
professionals in connection with any dispute between Landlord and Tenant.  If Tenant shall not give such notice within
such fourteen (14) month period, then the Landlord’s Statement as furnished by
Landlord shall be conclusive and binding upon Tenant.  For purposes of this Lease, “Audit Representative“ shall mean
(x) a firm of certified public accountants or a subsidiary of a firm of
certified public accountants including, without limitation, lease audit and
analysis services (provided that the members of such subsidiary are certified
public accountants) or (y) employees of Tenant.  The Audit Representative shall not be
retained by Tenant on a contingency fee basis.


 


(ii)           In the event that
Tenant, after having reasonable opportunity to examine the Records, shall
disagree with a Landlord’s Statement, then Tenant may send a written notice
(herein called a “Tenant’s Statement“)
to Landlord of such disagreement (but in no event more than sixty (60) days
from the date on which the Records are made available to Tenant), specifying in
reasonable detail the basis for Tenant’s disagreement.  Landlord and Tenant shall attempt to adjust
such disagreement.  If they are unable to
do so within thirty (30) days, Landlord and Tenant shall designate a certified
public accountant (the “Arbiter“)
whose determination made in accordance with


 


20





















 


this Section 5.2(c)(ii)
shall be binding upon the parties and concurrently therewith (A) Landlord
shall inform Tenant and the Arbiter of Landlord’s determination of the amount
due from Tenant (“Landlord’s Determination”),
which amount may be different than the amount contained in Landlord’s
Statement, and (B) Tenant shall inform Landlord and the Arbiter of Tenant’s
determination of the amount of the Expense Payment Tenant claims is due from
Tenant (“Tenant’s Determination”).  If the determination of the Arbiter shall
substantially confirm the determination of Landlord, then Tenant shall pay the
cost of the Arbiter.  If the Arbiter
shall substantially confirm the determination of Tenant, then Landlord shall
pay the cost of the Arbiter.  In all
other events, the cost of the Arbiter shall be borne equally by Landlord and
Tenant.  The Arbiter shall be a partner,
principal or member of an independent certified public accounting firm of at
least one hundred fifty (150) partners, principals or members who are certified
public accountants, and who has at least five (5) years of experience in
commercial real estate accounting.  In
the event that Landlord and Tenant shall be unable to agree upon the
designation of the Arbiter within thirty (30) days after receipt of notice from
the other party requesting agreement as to the designation of the Arbiter,
which notice shall contain the names and addresses of two or more certified
public accountants who are acceptable to the party sending such notice (any one
of whom, if acceptable to the party receiving such notice as shall be evidenced
by notice given by the receiving party to the other party within such thirty
(30) day period, shall be the agreed upon Arbiter), then either party shall
have the right to request the American Arbitration Association (herein called
the “AAA“) (or any
organization which is the successor thereto) to designate as the Arbiter a
certified public accountant whose determination made in accordance with this Section shall
be conclusive and binding upon the parties, and the cost charged by the AAA (or
any organization which is the successor thereto), for designating such Arbiter,
shall be shared equally by Landlord and Tenant. 
Landlord and Tenant hereby agree that any determination made by an
Arbiter designated pursuant to this Section shall not exceed Landlord’s
Determination, nor shall such determination be less than Tenant’s
Determination, and that any determination which does not comply with the
foregoing shall be null and void and not binding on the parties.  In rendering such determination such Arbiter
shall not add to, subtract from or otherwise modify the provisions of this
Lease, including the immediately preceding sentence.  Notwithstanding the foregoing provisions of
this Section, Tenant, pending the resolution of any contest pursuant to the
terms hereof, shall continue to pay all sums as determined to be due in the
first instance by such Landlord’s Statement and upon the resolution of such
contest, suitable adjustment shall be made in accordance therewith with
appropriate refund to be made by Landlord to Tenant (or credit allowed Tenant
against fixed annual rent and additional rent becoming due) if required
thereby.  For purposes of this Section,
the term “substantially“
shall mean a variance of five percent (5%) or more.


 


(d)           In no event shall
the fixed annual rent under this Lease be reduced by virtue of this Article 5,
except as otherwise expressly provided in this Lease.


 


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(e)           If the Rent
Commencement Date is not the first day of the first comparative year, then the
additional rent due hereunder for such first comparative year shall be a
proportionate share of said additional rent for the entire comparative year,
said proportionate share to be based upon the length of time that this Lease
shall have been in existence during such first comparative year after the Rent
Commencement Date.  Landlord shall, as
soon as reasonably practicable, cause statements of the Expenses for that
comparative year to be prepared and furnished to Tenant.  Landlord and Tenant shall thereupon make
appropriate adjustments of amounts then owing.


 


(f)            Landlord’s and
Tenant’s obligation to make the adjustments referred to in Sections 5.2(a),
5.2(b) and 5.2(e) hereof shall survive any expiration or sooner termination of
this Lease.


 


Landlord’s failure to render or delay in rendering a
Landlord’s Statement with respect to any comparative year or any component of
the Expense Payment shall not prejudice Landlord’s right to thereafter render a
Landlord’s Statement with respect to any such comparative year or any such
component, nor shall the rendering of a Landlord’s Statement for any
comparative year prejudice Landlord’s right to thereafter render a corrected
Landlord’s Statement for such comparative year. 
Notwithstanding the foregoing, Landlord’s Statement with respect to any comparative
year must be rendered within three (3) years after the relevant comparative year
except that in the case of the last comparative year Landlord’s Statement shall
be rendered within two (2) years after the Expiration Date, and Landlord’s
failure to so render a Landlord’s Statement with respect to any comparative
year shall relieve Tenant from liability with respect to any obligation for the
Expense Payment for such comparative year.


 


ARTICLE 6


 


INSURANCE


 


6.1.  Tenant, at its expense,
shall maintain at all times during the term of this Lease (a) ”all risk”
property insurance covering all present and future Tenant’s Property for the
full replacement value thereof, such insurance to include a replacement cost
endorsement, and (b) commercial general liability insurance, including
contractual liability, in respect of the demised premises and the conduct or
operation of business therein, with Landlord and its managing agent, if any,
and each Superior Lessor and Superior Mortgagee whose name and address shall
previously have been furnished to Tenant, as additional insureds, with limits
of not less than Five Million ($5,000,000) Dollars combined single limit for
bodily injury and property damage liability in any one occurrence,
(c) steam boiler, air-conditioning or machinery insurance, if there is a
boiler or pressure object or similar equipment in the demised premises, with
Landlord and its managing agent, if any, and each Superior Lessor and Superior
Mortgagee whose name and address shall previously have been furnished to
Tenant, as additional insureds, with limits of not less than Five Million
($5,000,000) Dollars and (d) when Alterations are in


 


22





















 


progress, the insurance
specified in Section 8.5 hereof. 
The limits of such insurance shall not limit the liability of
Tenant.  All such policies shall be
issued by companies of recognized responsibility licensed to do business in New
York State and rated by Best’s Insurance Reports or any successor publication
of comparable standing and carrying a rating of A-VIII or better or the then
equivalent of such rating.  Tenant hereby
agrees to furnish Landlord with certificates evidencing the maintenance of such
insurance and evidence that the premiums therefore have been paid prior to the
Commencement Date.  Tenant shall also
furnish Landlord with renewals thereof and evidence of the payment of the
premiums therefor prior to the expiration of any such policy or policies.  All insurance certificates Tenant delivers to
Landlord shall provide that the insurer shall endeavor to give Landlord at
least thirty (30) days’ (ten (10) days in the case of non-payment of premiums) prior
written notice of the cancellation or alteration of the policies evidenced by
such certificates.  In all events, Tenant
shall give notice to Landlord of any cancellation or alteration of any such
policy or policies within five (5) business days after receipt by Tenant of
notice thereof.  The parties shall
cooperate with each other in connection with the collection of any insurance
monies that may be due in the event of loss and each party shall execute and
deliver to the other such proofs of loss and other instruments which may be
reasonably required to recover any such insurance monies.


 


6.2.  Landlord may from time to
time require that the amount of the insurance to be maintained by Tenant under Section 6.1
hereof be reasonably increased, so that the amount thereof adequately protects
Landlord’s interest;  provided, however,
that the amount to which such insurance requirements may be increased shall not
exceed an amount then being required by landlords of comparable first-class
office buildings in midtown Manhattan.


 


ARTICLE 7


 


ELECTRICITY


 


7.1.  Landlord shall furnish
electric energy for the demised premises through presently installed electrical
facilities.  Tenant covenants and agrees
that in no event shall its use of electric current in the demised premises
exceed six (6) watts demand load per useable square foot per floor, exclusive of
heating, ventilation and air conditioning, together with any increased demand
load as may be made available pursuant to a written agreement between Landlord
and Tenant in accordance with the provisions hereof after the installation by
Landlord, at Tenant’s sole cost and expense, of such additional risers, feeders
and other equipment as may be required in connection with such additional
demand load.  Landlord shall not
unreasonably withhold its consent to Tenant’s use of electric current in excess
of six (6) watts demand load per usable square foot and the installation of any
additional risers, feeders or other proper or necessary equipment required in
connection therewith if:  (i) power
is available in the Building for use by Tenant and (ii) the installation
of such additional risers, feeders or other proper or necessary equipment will
not cause permanent damage or injury to the Building or the


 


23





















 


demised premises, or
cause or create a dangerous or hazardous condition or entail excessive or
unreasonable alterations.  Landlord
represents that electric current to the demised premises shall be not less than
six (6) watts demand load per usable square foot (exclusive of HVAC).


 


7.2.  (a)  Landlord shall, at or about the date Tenant
occupies the demised premises for the conduct of its business (and at any
subsequent time that additional demand load is provided to the demised premises
in accordance with the provisions of Section 7.1 hereof), at Landlord’s
expense, install a sufficient number of check meters and all of the equipment
ancillary thereto on each floor of the demised premises (herein called the “Check Meters“) to (i) measure
and record and provide printouts of the measurement of the demand and
consumption in the demised premises of electric current during each month
occurring during the term of this Lease and (ii) operate such meters to
ascertain Tenant’s consumption of kilowatt hours (herein called “KWH“), by time of day, if
applicable, and demand in kilowatts (herein called “KW“)
for each month.  The Check Meters shall
be read and billed conjunctively. 
Landlord, at Landlord’s expense, shall maintain and keep the Check
Meters in good repair (including replacement, if necessary), working order and
condition during the term of this Lease. 
All costs and expenses of maintaining and repairing the Check Meters
shall be the responsibility of Landlord. 
During any period that a Check Meter is non-operational the Electricity
Additional Rent attributable to such Check Meter(s) shall be an amount
reasonably estimated based upon the historical readings previously or
thereafter received by Landlord from such non-operational Check Meter(s).


 


(b)           Tenant shall pay
Landlord, as additional rent within thirty (30) days after receipt of an
invoice (not more frequently than monthly) from Landlord or Landlord’s agent
for the furnishing of electricity for the demised premises as set forth herein,
an amount (herein called “Electricity Additional
Rent“) determined for each billing period by applying the KWH
and KW shown on the Check Meters to the rates pursuant to which Landlord
purchases electric current for the Building during the particular billing
period, including therein any taxes, fuel adjustment charges, surcharges,
demand charges, energy charges, time-of-day charges, rate adjustment charges or
other impositions of any nature payable by Landlord and adding thereto a five
(5%) percent charge (which shall not apply to taxes) to compensate Landlord for
its administrative costs and for transmission loss in transmitting the electric
energy from its source in the Building to the demised premises (herein called “Landlord’s Rate“).  If consumption or demand is billed at
different rates depending on different subdivisions or categories of the rate
schedule, then Tenant’s KWH consumption and KW demand shall be billed at
Landlord’s Rate per KW or KWH (as the case may be) for such subdivision or
category (e.g., KWH consumption is currently billed at different rates
depending on the time of day of consumption and accordingly Tenant’s KWHs shall
be applied separately to the rates applicable to the period in which each KWH
of Tenant’s consumption was consumed).


 


24





















 


7.3.  Landlord reserves the right
to discontinue furnishing electric energy to Tenant at any time upon sixty (60)
days’ written notice to Tenant, and from and after the effective date of such
termination, Landlord shall no longer be obligated to furnish Tenant with
electric energy; provided, however, that such termination date may be extended
for a time reasonably necessary for Tenant to make arrangements to obtain
electric service directly from the public utility company and/or other service
provider servicing the Building.  If
Landlord exercises such right of termination, this Lease shall remain
unaffected thereby and shall continue in full force and effect; and thereafter
Tenant shall diligently arrange to obtain electric service directly from the
public utility company and/or other service provider servicing the Building,
and may utilize the then existing electric feeders, risers and wiring serving
the demised premises to the extent available and safely capable of being used
for such purpose and only to the extent of Tenant’s then authorized demand
load.  Landlord shall be obligated to pay
no part of any cost required for Tenant’s direct electric service if (a) Landlord
is compelled to discontinue furnishing electricity to Tenant and UBS by the
public utility company and/or other service provider or pursuant to law unless
Landlord is required to pay such cost on behalf of or for the benefit of UBS
pursuant to its lease, or (b) such discontinuance arises out of the
negligence or willful misconduct of Tenant. 
Otherwise, all costs associated with Tenant obtaining direct service to
the demised premises shall be borne by Landlord.  Commencing with the date when Tenant receives
such direct service, and as long as Tenant shall continue to receive such
service, the Electricity Additional Rent and any adjustments made thereto
pursuant to this Article 7 shall no longer be due and payable by Tenant.


 


7.4.  Save for Landlord’s
negligence or willful misconduct, Landlord shall not in any way be liable or
responsible to Tenant for any loss, damage or expense which Tenant may sustain
or incur if (a) the supply of electric energy to the demised premises is
temporarily interrupted or (b) the quantity or character of electric
service is changed or is no longer available or suitable for Tenant’s
requirements.


 


7.5.  At Landlord’s option,
Landlord shall furnish and install all replacement lighting, tubes, lamps,
bulbs and ballasts required in the demised premises; and in such event, Tenant
shall pay to Landlord or its designated contractor within thirty (30) days after
demand the then established charges therefor of Landlord or its designated
contractor, as the case may be.


 


7.6.  In no event shall the fixed
annual rent under this Lease be reduced by virtue of this Article 7,
except as otherwise expressly provided in this Article 7.


 


ARTICLE 8


 


ALTERATIONS AND
INSTALLATIONS


 


8.1.  Tenant shall make no
alterations, installations, additions, improvements or changes (herein called “Alterations“) in or to the demised premises


 


25





















 


without Landlord’s prior
written approval (other than decorative alterations).  Landlord will not unreasonably withhold or
delay its approval to requests for Alterations which are not Material Alterations.  A “Material
Alteration“ is an Alteration which (a) affects the exterior
(including the appearance) of the Building, (b) adversely affects the
strength of the Building, or (c) adversely affects the usage or the proper
functioning of the mechanical, electrical, sanitary, heating, ventilating,
air-conditioning or other service systems of the Building.  All such work shall be done only by
contractors and subcontractors listed on Exhibit H annexed hereto.  Landlord may add or delete contractors and subcontractors
to or from the list but shall not delete any contractor or subcontractor then
currently employed by Tenant.


 


8.2.  (a)  Before proceeding with any Alteration in
respect of which Landlord’s approval is required hereunder, Tenant shall submit
to Landlord, for Landlord’s approval, plans and specifications for the work to
be done, and Tenant shall not proceed with such work until it obtains Landlord’s
written approval of such plans and specifications, which approval shall not be
unreasonably withheld, conditional or delayed (except with respect to Material
Alterations).  Landlord agrees to respond
to Tenant’s written request for approval of plans and specifications for any
Alterations within ten (10) days after delivery thereof to Landlord.  In addition, Landlord agrees to respond to
any resubmission of any plans and specifications for any Alterations within
five (5) days after written resubmission, unless substantial revisions are
required to such plans and specifications, in which event Landlord shall
respond to Tenant within ten (10) days thereafter.  If Landlord fails to approve or disapprove
the plans and specifications proposed by Tenant within the applicable review
period set forth above, Tenant shall have the right to provide Landlord with a second
request that specifically identifies the applicable plans and specifications
and contains the following statement in bold capital letters:  IF LANDLORD FAILS TO
RESPOND WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE, THEN TENANT
SHALL BE ENTITLED TO COMMENCE CONSTRUCTION IN ACCORDANCE WITH THE PLANS AND
SPECIFICATIONS PREVIOUSLY SUBMITTED TO LANDLORD AND TO WHICH LANDLORD HAS
FAILED TO TIMELY RESPOND.  If
Landlord fails to respond to a second request within five (5) business days
after receipt by Landlord, the plans and specifications or revisions as to
which the second request is submitted shall be deemed approved by Landlord, and
Tenant may commence construction of the Alterations or portion thereof to which
the plans and specifications relate, provided that the plans and specifications
have been appropriately filed in accordance with applicable Legal Requirements,
all permits and approvals required to be issued by any governmental authority
shall have been duly issued, and Tenant shall otherwise have complied with all
provisions of this Lease applicable to Alterations.


 


(b)           Tenant shall pay to
Landlord upon demand, as additional rent, Landlord’s actual, reasonable out-of-pocket
costs and expenses (including, without limitation, the fees of any architect or
engineer employed by Landlord or any Superior Lessor or Superior Mortgagee for
such purpose) for reviewing said plans and


 


26





















 


specifications.  In connection with the performance of Tenant’s
Work by Plaza Construction Corp., no such costs and expenses will be payable by
Tenant.


 


(c)           Tenant agrees that
any review or approval by Landlord of any plans and/or specifications with
respect to any Alterations is solely for Landlord’s benefit, and without any
representation or warranty whatsoever to Tenant with respect to the adequacy,
correctness or efficiency thereof or otherwise.


 


8.3.  During the progress of the
work to be done by Tenant, said work shall be subject to inspection by
representatives of Landlord who shall be permitted access and the opportunity
to inspect, at all reasonable times on reasonable notice.


 


8.4.  Tenant, at its expense,
shall obtain (and furnish true and complete copies to Landlord of) all
necessary governmental permits and certificates for the commencement and
prosecution of Alterations and for final approval thereof upon completion, and
shall cause Alterations to be performed in compliance therewith, with all
applicable laws and requirements of public authorities, with all applicable
requirements of insurance bodies and in all material respects with the plans
and specifications approved by Landlord. 
Alterations shall be diligently performed in a good and workerlike
manner, using new materials and equipment at least equal in quality and class
to the then standards for the Building established by Landlord.  Alterations shall be performed in such manner
as not to unreasonably interfere with or delay and as not to impose any
additional expense upon Landlord in the maintenance, repair or operation of the
Building.  Throughout the performance of substantial
Alterations, Tenant, at its expense, shall carry, or cause to be carried,
worker’s compensation insurance in statutory limits, all risk “Builders Risk”
insurance and general liability insurance, with completed operation
endorsement, for any occurrence in or about the building project, under which
Landlord and its agent and any Superior Lessor and Superior Mortgagee whose
name and address shall previously have been furnished to Tenant shall be named
as parties insured, in such limits as Landlord may reasonably require, with
insurers rated by Best’s Insurance Reports of A-VIII or better.  Tenant shall furnish Landlord with certificates
of such insurance at or before the commencement of Alterations and, on request,
at reasonable intervals thereafter during the continuance of Alterations.


 


8.5.  Tenant agrees that the
exercise of its rights pursuant to the provisions of this Article 8 or of
any other provisions of this Lease or the Exhibits hereto shall not be done in
a manner which would violate Landlord’s union contracts affecting the building
project, or create any work stoppage, picketing, labor disruption or dispute or
disharmony or any interference (beyond a de minimis extent) with the business
of Landlord or any tenant or occupant of the Building.  Tenant shall immediately stop work or other
activity if Landlord notifies Tenant that continuing such work or activity
would violate Landlord’s union contracts affecting the building project, or
create any work stoppage, picketing, labor disruption or dispute or disharmony
or any interference (beyond a de minimis extent) with the business of Landlord
or any tenant or occupant of the Building.


 


27





















 


Landlord agrees that it
shall not discriminate as against Tenant in enforcing the foregoing prohibition
against interfering with the business of Landlord or other tenants in the
Building.


 


8.6.  Tenant, at its expense, and
with diligence and dispatch, shall procure the cancellation or discharge of all
notices of violation arising from or otherwise connected with Alterations, or
any other work, labor, services or materials done for or supplied to Tenant, or
any person claiming through or under Tenant (other than by Landlord or its
affiliates, agents, representatives or contractors), which shall be issued by
the Department of Buildings of the City of New York or any other public
authority having or asserting jurisdiction. 
Tenant shall defend, indemnify and save harmless Landlord from and
against any and all mechanic’s and other liens and encumbrances filed in
connection with Alterations, or any other work, labor, services or materials
done for or supplied to Tenant, or any person claiming through or under Tenant,
including, without limitation, security interests in any materials, fixtures or
articles so installed in and constituting part of the demised premises and
against all costs, expenses and liabilities incurred in connection with any
such lien or encumbrance or any action or proceeding brought thereon.  Tenant, at its expense, shall procure the
satisfaction or discharge of record of all such liens and encumbrances within sixty
(60) days after Tenant shall have received notice of the filing thereof.  However, nothing herein contained shall
prevent Tenant from contesting, in good faith and at its own expense, any
notice of violation, provided that Tenant shall comply with the provisions of Section 10.2
hereof.


 


8.7.  Tenant will promptly upon
the completion of an Alteration deliver to Landlord “as-built” or marked drawings
of any Alterations Tenant has performed or caused to be performed in the
demised premises.


 


8.8.  All fixtures and equipment
installed or used by Tenant in the demised premises shall be fully paid for by
Tenant in cash and shall not be subject to conditional bills of sale, chattel
mortgage or other title retention agreements.


 


8.9.  Tenant shall keep records
of Tenant’s Alterations costing in excess of $50,000 and of the cost thereof (as
said $50,000 is hereafter increased by the CPI).  Tenant shall, within forty-five (45) days
after demand by Landlord, furnish to Landlord copies of such records and cost
if Landlord shall require same in connection with any proceeding to reduce the
assessed valuation of the building project, or in connection with any
proceeding instituted pursuant to Article 10 hereof or for any other
reasonable purpose.


 


8.10.  Subject to the provisions
of Section 8.11 hereof, all alterations, installations, additions and
improvements attached to or built into the demised premises shall become and be
the property of Landlord, and shall remain upon and be surrendered with the
demised premises as a part thereof at the expiration or sooner termination of
this Lease.  Notwithstanding the
foregoing provisions, upon notice to Tenant no later than six (6) months prior
to the Expiration Date or upon reasonable notice with respect to such


 


28





















 


earlier date upon which
the term of this Lease shall expire, Landlord, subject to the provisions of the
last sentence of this Section 8.10, may require Tenant to remove any
kitchens, cafeterias, vaults, private restrooms, security areas, staircases
(other than any staircases existing as of the date of this Lease), raised or
above-slab reinforced flooring, slab cuts, generators, uninterrupted power
supply systems and preaction fire alarm systems and associated equipment, and
antennas, satellite dishes and microwave communications facilities and
associated equipment, any auditorium and related audio/ visual and closed
circuit television facilities or other items which are unusually difficult or
expensive to remove (herein collectively called “Specialty
Alterations“).  In such
event Tenant shall remove the foregoing from the demised premises and the
Building prior to the expiration of this Lease at Tenant’s expense.  Upon such removal Tenant shall immediately
and at its expense, repair and restore the affected portion(s) of the demised
premises and the Building to the condition existing prior to installation and
repair any damage to the affected portion(s) of the demised premises or the
Building due to such removal. 
Notwithstanding anything to the contrary contained herein: (i) Tenant
may include with any initial request for Landlord’s approval of an Alteration
given in accordance with the provisions of Section 8.2 hereof a written
request that Landlord designate any Alterations that constitute Specialty
Alterations and which Landlord will require Tenant to remove pursuant to the
provisions of this Section 8.10 and (ii) Landlord shall not have the
right to require Tenant to remove any Specialty Alterations not so designated
by Landlord at such time.  Any such
request made by Tenant must specifically refer to the provisions of this Section 8.10
and the consequences of Landlord’s failure to designate any such Alterations as
Specialty Alterations which will be required to be removed by Tenant.


 


8.11.  Notwithstanding the
provisions of Section 8.10 hereof, all movable partitions, furniture
systems, special cabinet work, business and trade fixtures, machinery and
equipment, communications equipment (including, without limitation, telephone
system, security system and wiring) and office equipment, whether or not
attached to or built into the demised premises, which are installed in the
demised premises by or for the account of Tenant without expense to Landlord
and can be removed without structural damage to the Building, and all
furniture, furnishings and other articles of movable personal property owned by
Tenant and located in the demised premises (herein collectively called “Tenant’s Property“) shall be and shall
remain the property of Tenant and may be removed by Tenant at any time during
the term of this Lease; provided that if any of Tenant’s Property is removed,
Tenant shall repair or pay the cost of repairing any damage to the demised
premises or to the Building resulting from the installation and/or removal
thereof.  At or before the expiration or
sooner termination of this Lease, Tenant, at its expense, shall remove from the
demised premises all of Tenant’s furniture, equipment and other moveable
personal property not affixed or attached to the demised premises (except for
such items thereof as Landlord shall have expressly permitted to remain, which
property shall become the property of Landlord), and Tenant shall repair any
damage to the demised premises or the Building resulting from any installation
and/or removal of Tenant’s Property.


 


29





















 


8.12.  If any alterations,
installations, additions, improvements or other property which Tenant shall
have the right to remove or be requested by Landlord to remove as provided in
Sections 8.10 and 8.11 hereof are not removed on or prior to the expiration or
sooner termination of this Lease, Landlord shall deem the same abandoned, and
in such case Landlord shall have the right to retain the property as Landlord’s
property or to dispose of the same without accountability to Tenant and at the
sole cost and expense of Tenant.  Save for
Landlord’s negligence or willful misconduct, in case of any damage to the
demised premises or the Building resulting from the removal of the property
Tenant shall repair such damage or, in default thereof, shall reimburse
Landlord for Landlord’s cost in repairing such damage.  This obligation shall survive the expiration
or sooner termination of this Lease.


 


8.13.  Notice is hereby given
that Landlord shall not be liable for any labor or materials furnished or to be
furnished to Tenant upon credit, and that no mechanic’s or other lien for any
such labor or materials shall attach to or affect the reversion or other estate
or interest of Landlord in and to the demised premises.


 


ARTICLE 9


 


REPAIRS AND MAINTENANCE


 


9.1.  Subject to the provisions
of Section 12.6(a) Tenant shall, at its expense, throughout the term of
this Lease, take good care of and maintain in good order and condition the
demised premises and the fixtures and improvements therein, including, without
limitation, Tenant’s Property, except as otherwise expressly provided in the
last sentence of this Section 9.1. 
Tenant shall be responsible for all repairs, interior and exterior,
structural and non-structural, ordinary and extraordinary, foreseen or
unforeseen, in and to the demised premises, and shall be responsible for the
cost of all repairs, interior and exterior, structural and non-structural,
ordinary and extraordinary, foreseen or unforeseen, in and to the Building and
the facilities and systems thereof, the need for any of the foregoing which
arises out of (a) the performance by Tenant or existence of Alterations
made by Tenant, (b) the installation, use or operation by Tenant of the
property which is deemed Landlord’s, pursuant to Section 8.10 hereof and
Tenant’s Property, (c) the moving by Tenant of the property which is
deemed Landlord’s pursuant to Section 8.10 hereof and Tenant’s Property in
or out of the Building, (d) the neglect of Tenant or any of its subtenants
or its or their employees, agents, contractors or invitees or (e) design
flaws in any of Tenant’s plans and specifications regardless of the fact that
such Tenant’s plans may have been approved by Landlord.  Tenant, at its expense, shall promptly
replace all scratched, damaged or broken doors and glass (but not the exterior
windows) in and about the demised premises, including, without limitation,
entrance doors and shall be responsible for all repairs, maintenance and
replacement of wall and floor coverings in the demised premises and for all the
repair, maintenance and replacement of all horizontal portions of the systems
and facilities of the Building within and exclusively serving the demised
premises (save for the heating system), including,


 


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without limitation, the
sanitary and electrical fixtures and equipment therein.  All repairs in or to the demised premises for
which Tenant is responsible shall be promptly performed by Tenant in a manner
which will not interfere with the use of the Building by other occupants;
provided, however, any repairs in and to the Building and the facilities and
systems thereof for which Tenant is responsible shall be performed by Landlord
at Tenant’s expense which expense shall be commercially reasonable.  The exterior walls of the Building, the
portions of any window sills outside the windows, and the windows are not part
of the premises demised by this Lease and Landlord reserves all rights to such
parts of the Building.  Notwithstanding
the foregoing provisions of this Section 9.1, Tenant shall not be
responsible for repairs to or replacements of any structural elements of the
Building, except to the extent the need for such repairs or replacements arises
from the matters set forth in clauses (a), (b), (c), (d) or (e) of the
second sentence of this Section 9.1 or from the negligence or willful
misconduct of Tenant, its employees, agents or contractors.


 


9.2.  Tenant shall give Landlord
prompt notice of any defective condition in any plumbing, heating,
air-conditioning or ventilation system or electrical lines located in,
servicing or passing through the demised premises of which it has actual
knowledge.  Landlord shall remedy the
conditions, but at the expense of Tenant if Tenant is responsible for same
under the provisions of this Article 9.


 


9.3.  Tenant shall not place a
load upon any floor of the demised premises exceeding the floor load per square
foot area which is allowed by the Certificate of Occupancy for the Building.


 


9.4.  Business machines and
mechanical equipment used by Tenant which cause vibration, noise, cold or heat
that may be transmitted to the Building structure or to any leased space to
such a degree as to be objectionable to any other tenant in the Building shall
be placed and maintained by Tenant at its expense in settings of cork, rubber
or spring type vibration eliminators sufficient to absorb and prevent such
vibration or noise, or prevent transmission of such cold or heat.


 


9.5.  Except as otherwise expressly
provided in this Lease, there shall be no allowance to Tenant for a diminution
of rental value and no liability on the part of Landlord by reason of
inconvenience, annoyance or injury to business arising from the making of any
repairs, alterations, additions or improvements in or to any portion of the
Building or the demised premises or in or to fixtures, appurtenances or
equipment thereof.  Landlord shall
exercise reasonable diligence so as to minimize any interference with Tenant’s
business operations.


 


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ARTICLE 10


 


REQUIREMENTS OF LAW; FIRE
INSURANCE


 


10.1.  Tenant shall give prompt
notice to Landlord of any notice it receives of the violation of any law or
requirement of any public authority with respect to the demised premises or the
use or occupation thereof.  Tenant, at
Tenant’s expense, shall comply with all laws, orders and regulations of any
public authorities, and with any direction of any public officer or officers,
pursuant to law, which shall impose any violation, order or duty upon Landlord
or Tenant with respect to Tenant’s particular manner of use of the demised
premises.  Tenant shall pay all the
costs, expenses, fine, penalties and damages which may be imposed upon Landlord
or any Superior Lessor or Superior Mortgagee by reason of or arising out of
Tenant’s failure to fully and promptly comply with and observe the provisions
of this Section 10.1.


 


10.2.  Tenant, at its expense,
after notice to Landlord, may contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the demised
premises, of any law or requirement of any public authority, provided that
(a) Landlord shall not be subject to criminal penalty or to prosecution
for a crime, nor shall the demised premises or any part thereof or the Building
or Land, or any part thereof, be subject to being condemned or vacated, nor
shall the Building or Land, or any part thereof, be subjected to any lien
(unless Tenant shall remove such lien by bonding or otherwise) or encumbrance,
by reason of non-compliance or otherwise by reason of such contest;
(b) before the commencement of such contest, Tenant shall furnish to
Landlord a cash deposit or other security in amount, form and substance reasonably
satisfactory to Landlord and shall indemnify Landlord against the cost thereof
and against all liability for damages, interest, penalties and expenses
(including reasonable attorneys’ fees and expenses), resulting from or incurred
in connection with such contest or non-compliance; (c) if any such
Superior Lease and/or Superior Mortgage shall permit such non-compliance or
contest on condition of the taking of action or furnishing of security by
Landlord, such action shall be taken and such security shall be furnished at
the expense of Tenant (the depositing of such security obviating the
requirement in (b), above); (d) such noncompliance or contest shall not
prevent Landlord from obtaining any and all permits and licenses in connection
with the operation of the Building; and (e) Tenant shall keep Landlord
advised as to the status of such proceedings. 
Without limiting the application of the above, Landlord shall be deemed
subject to prosecution for a crime if Landlord, or its managing agent, or any
officer, director, partner, shareholder or employee of Landlord or its managing
agent, as an individual, is charged with a crime of any kind or degree
whatever, whether by service of a summons or otherwise, unless such charge is
withdrawn before Landlord or its managing agent, or such officer, director,
partner, shareholder or employee of Landlord or its managing agent (as the case
may be) is required to plead or answer thereto.


 


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10.3.  Except to the extent that
Tenant is required by this Lease to comply therewith, Landlord shall comply
with all present and future laws and requirements of public authorities as
shall affect:


 


(1)           the
demised premises,


 


(2)           the portions of the
building project which affect the demised premises, and


 


(3)           all other portions
of the building project if and to the extent that Landlord’s failure to do so
would adversely affect Tenant’s use of the demised premises or Tenant’s right
or ability lawfully to use the demised premises or to make alterations or
improvements as permitted by this Lease or would result in the Building being
other than a first class office building,


 


but may similarly defer compliance so long as Landlord
shall be contesting the validity or applicability thereof.


 


10.4.  Tenant shall not knowingly
violate, or knowingly permit the violation by anyone claiming under it of, any
condition imposed by any insurance policy then issued in respect of the
building project and shall not do, or permit anything to be done in the demised
premises, or keep or permit anything to be kept in the demised premises which
would subject Landlord, any Superior Lessor or any Superior Mortgagee to any
liability or responsibility for personal injury or death or property damage, or
which would increase any insurance rate in respect of the building project over
the rate which would otherwise then be in effect or which would result in
insurance companies of good standing refusing to insure the building project in
amounts reasonably satisfactory to Landlord, or which would result in the
cancellation of or the assertion of any defense by the insurer in whole or in
part to claims under any policy of insurance in respect of the building
project; provided, however, that in no event shall the mere use of the demised
premises for customary and ordinary office purposes, as opposed to the manner
of such use, constitute a breach by Tenant of the provisions of this Section 10.4.


 


10.5.  If, as a result of any act
or omission by Tenant or violation of this Lease, Landlord receives notice that
the rate of fire insurance applicable to the Building will be increased to an
amount higher than it otherwise would be, Landlord shall so advise Tenant so
that Tenant may seek to obviate such increase and Tenant shall promptly after
demand reimburse Landlord for all increases of Landlord’s fire insurance
premiums so caused; such reimbursement to be additional rent payable upon the
first day of the month following any outlay by Landlord for such increased fire
insurance premiums.  In any action or
proceeding wherein Landlord and Tenant are parties, a schedule or “make up” of
rates for the Building or demised premises issued by the body making fire
insurance rates for the demised premises shall be presumptive evidence of the
facts therein stated and of the several items and charges in the fire insurance
rate then applicable to the demised premises.


 


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ARTICLE 11


 


SUBORDINATION, NOTICE TO
LESSORS AND MORTGAGEES


 


11.1.  This Lease, and all rights
of Tenant hereunder, are and shall be subject and subordinate in all respects
to all ground leases, overriding leases and underlying leases of the Land
and/or the Building and/or that portion of the Building of which the demised
premises are a part now or hereafter existing and to all mortgages which may
now or hereafter affect the Land and/or the Building and/or that portion of the
Building of which the demised premises are a part and/or any of such leases,
whether or not such mortgages shall also cover other lands and/or buildings
and/or leases, to each and every advance made or hereafter to be made under
such mortgages, and to all renewals, modifications, replacements and extensions
of such leases and such mortgages and spreaders and consolidations of such
mortgages.  This Section 11.1 shall
be self-operative and no further instrument of subordination shall be
required.  In confirmation of such
subordination, Tenant shall promptly execute, acknowledge and deliver any
instrument that Landlord, the lessor of any such lease or the holder of any
such mortgage or any of their respective successors in interest may reasonably
request to evidence such subordination. 
The leases to which this Lease is, at the time referred to, subject and
subordinate pursuant to this Article are herein sometimes called “Superior Leases“ and the mortgages
to which this Lease is, at the time referred to, subject and subordinate are
herein sometimes called “Superior Mortgages“
and the lessor of a Superior Lease or its successor in interest, at the time
referred to, is sometimes herein called a “Superior
Lessor,” and
the holder of a Superior Mortgage or its successor in interest, at the time
referred to, is sometimes herein called a “Superior
Mortgagee.”  Landlord
represents that it is the owner of the demised premises, that it has authority
to execute and deliver this Lease, and that there are currently no Superior
Leases that if terminated would cause this Lease to be terminated.


 


11.2.  In the event of any act or
omission of Landlord which would give Tenant the right, immediately or after
lapse of a period of time, to cancel or terminate this Lease, or to claim a
partial or total eviction, Tenant shall not exercise such right (i) until
it has given written notice of such act or omission to Landlord and each
Superior Mortgagee and each Superior Lessor whose name and address shall
previously have been furnished to Tenant in writing, and (ii) unless such
act or omission shall be one which is not capable of being remedied by Landlord
or such Superior Mortgagee or Superior Lessor within a reasonable period of
time, until a reasonable period for remedying such act or omission shall have
elapsed following the giving of such notice and following the time when such
Superior Mortgagee or Superior Lessor shall have become entitled under such
Superior Mortgage or Superior Lease, as the case may be, to remedy the same or
seek appointment of a receiver (which reasonable period shall in no event be
less than the period to which Landlord would be entitled under this Lease after
similar notice, to effect such remedy), provided such Superior Mortgagee or
Superior Lessor shall with due


 


34





















 


diligence give Tenant
written notice of its intention to, and commence and continue to, remedy such
act or omission or seek appointment of a receiver.


 


11.3.  If any Superior Lessor or
Superior Mortgagee, or any designee of any Superior Lessor or Superior
Mortgagee, shall succeed to the rights of Landlord under this Lease, whether
through possession or foreclosure action or delivery of a new lease or deed,
then at the request of such party so succeeding to Landlord’s rights (herein
called “Successor Landlord“)
and upon such Successor Landlord’s written agreement to accept Tenant’s
attornment, Tenant shall attorn to and recognize such Successor Landlord as
Tenant’s landlord under this Lease, and shall promptly execute and deliver any
instrument that such Successor Landlord may reasonably request to evidence such
attornment.  Upon such attornment this
Lease shall continue in full force and effect as, or as if it were, a direct
lease between the Successor Landlord and Tenant upon all of the terms,
covenants, conditions, agreements and provisions as are set forth in this Lease,
except that the Successor Landlord shall not be:


 


(a)           liable for any
previous act or omission of Landlord (or its predecessors in interest) unless
same is continuing;


 


(b)           responsible for any
monies owing by Landlord to the credit of Tenant;


 


(c)           subject to any
credits, offsets, claims, counterclaims, demands or defenses which Tenant may
have against Landlord (or its predecessors in interest);


 


(d)           bound by any
payments of rent which Tenant might have made for more than one (1) month in
advance of the date such payment is due under this Lease to Landlord (or its
predecessors in interest);


 


(e)           bound by any
covenant to undertake or complete any construction of the demised premises or
any portion thereof;


 


(f)            required to account
for any security deposit other than any security deposit actually delivered to
the Successor Landlord;


 


(g)           bound by any
obligation to make any payment to Tenant or grant or be subject to any credits,
except for services, repairs, maintenance and restoration provided for under
this Lease to be performed after the date of attornment, it being expressly
understood, however, that the Successor Landlord shall not be bound by an
obligation to make payment to Tenant with respect to construction performed by
or on behalf of Tenant at the demised premises;


 


(h)           bound by any
modification of this Lease, including, without limitation, any modification
which reduces the fixed annual rent or additional rent or other charges payable
under this Lease, or shortens the term thereof, or otherwise


 


35





















 


materially adversely
affects the rights of the lessor thereunder, made without the written consent
of the Successor Landlord; or


 


(i)            required to remove
any person occupying the demised premises or any part thereof.


 


11.4.  If, in connection with the
financing of the Land and/or the Building, the holder of any mortgage shall
request reasonable modifications to this Lease as a condition of approval of
this Lease, Tenant will not unreasonably withhold, delay or condition making
such modifications, provided that they do not increase the obligations of
Tenant hereunder or adversely affect the leasehold interest created by this
Lease.


 


11.5.  Landlord hereby covenants
to obtain a subordination, non-disturbance and attornment agreement from any
current or future holder of any superior mortgage or superior lease, in form that
is reasonably acceptable to Tenant or, in the case of an institution, in the
form then customarily used by such holder.


 


ARTICLE 12


 


LOSS, DAMAGE,
REIMBURSEMENT, LIABILITY, ETC.


 


12.1.  Neither Landlord, any
Superior Lessor or any Superior Mortgagee, nor any partner, director, officer,
shareholder, principal, agent, servant or employee of Landlord, any Superior
Lessor or any Superior Mortgagee (in any case whether disclosed or
undisclosed), shall be liable to Tenant for any loss, injury or damage to
Tenant or to any other person, or to its or their property, irrespective of the
cause of such injury, damage or loss, nor shall the aforesaid parties be liable
for any damage to property of Tenant or of others entrusted to employees of
Landlord nor for loss of or damage to any such property by theft or otherwise;
provided, however, that subject to the provisions of Section 12.5 hereof,
nothing contained in this Section 12.1 shall be construed to exculpate
Landlord for loss, injury or damage to the extent caused by or resulting from
the negligence of Landlord, its agents, servants, and employees in the
operation or maintenance of the demised premises or the Building.  Further, neither Landlord, any Superior
Lessor or any Superior Mortgagee, nor any partner, director, officer,
principal, shareholder, agent, servant or employee of Landlord, any Superior
Lessor or any Superior Mortgagee, shall be liable (a) for any such damage
caused by other tenants or persons in, upon or about the Building or the
building project, or caused by operations in construction of any private,
public or quasi-public work; or (b) even if negligent, for consequential
damages arising out of any loss of use of the demised premises or any
equipment, facilities or other Tenant’s Property therein by Tenant or any
person claiming through or under Tenant.


 


12.2.  Neither Landlord nor any
partner, member, director, officer, shareholder, principal, agent, servant or
employee of Landlord (in any case whether disclosed or undisclosed) shall be
liable for any damage which Tenant may sustain if at


 


36





















 


any time any window of
the demised premises is broken, or temporarily closed, darkened or obstructed
for any reason whatsoever and Tenant shall not be entitled to any compensation
therefor or abatement of rent or to any release from any of Tenant’s
obligations under this Lease, nor shall the same constitute an eviction.  Landlord shall diligently seek to minimize
the duration of any closing, darkening or obstruction.


 


12.3.  Tenant shall reimburse
Landlord for all expenses, damages or fines incurred or suffered by Landlord,
and for which Landlord has not been or will not be reimbursed by insurance, by
reason of any breach, violation or nonperformance by Tenant, or its agents,
servants or employees, of any covenant or provision of this Lease, or by reason
of damage to persons or property caused by moving property of or for Tenant in
or out of the Building, or by the installation or removal of furniture or other
property of or for Tenant except as provided in Section 8.5 hereof, or by
reason of or arising out of the negligence of Tenant, or its agents, servants or
employees, in the use or occupancy of the demised premises.  The provisions of the preceding sentence are
subject to Section 12.6(a), and Landlord agrees (i) to look first to
its insurance policies for recovery thereof, and (ii) Tenant shall not be
liable hereunder for consequential damages.


 


12.4.  Tenant shall give prompt
notice to Landlord of (a) any occurrence in or about the demised premises
for which Landlord might be liable, (b) any fire or other casualty in the
demised premises, (c) any damage to or defect in the demised premises,
including the fixtures, equipment and appurtenances thereof, for the repair of
which Landlord might be responsible, and (d) any damage to or defect in
any part or appurtenance of the Building’s sanitary, electrical, heating,
ventilating, air-conditioning, elevator or other systems located in or passing
through the demised premises or any part thereof, if and to the extent that
Tenant shall have knowledge of any of the foregoing matters.


 


12.5.  Tenant agrees to look
solely to Landlord’s estate and interest in the Land and Building, or of the
Land and Building and any insurance proceeds or condemnation awards, and the
demised premises, for the satisfaction of any right or remedy of Tenant for the
collection of a judgment (or other judicial process) requiring the payment of
money by Landlord, in the event of any liability by Landlord, and no other
property or assets of Landlord (or the partners, members, directors, officers,
shareholders, principals, agents, servants or employees thereof) shall be
subject to levy, execution, attachment, or other enforcement procedure for the
satisfaction of Tenant’s remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder, or Tenant’s use and occupancy of
the demised premises, or any other liability of Landlord to Tenant.


 


12.6.  (a)  Landlord agrees that, if obtainable at no
additional cost, it will include in its fire insurance policies appropriate
clauses pursuant to which the insurance companies (i) waive all right of
subrogation against Tenant with respect to losses payable under such policies
and/or (ii) agree that such policies shall not be invalidated should the


 


37





















 


insured waive in writing
prior to a loss any or all right of recovery against any party for losses
covered by such policies; provided, however, should any additional premium be
exacted for any such clause or clauses, Landlord shall be released from the
obligation hereby imposed unless Tenant shall agree to pay such additional
premium.


 


(b)           Tenant agrees that,
if obtainable at no additional cost, it will include in its fire insurance
policy or policies covering Tenant’s Property, appropriate clauses pursuant to
which the insurance company or companies (i) waive all right of
subrogation against Landlord and/or any tenant of space in the Building with
respect to losses payable under such policy or policies and/or (ii) agree
that such policy or policies shall not be invalidated should the insured waive
in writing prior to a loss any or all right of recovery against any party for
losses covered by such policy or policies; provided, however, should any
additional premium be exacted for any such clause or clauses, Tenant shall be
released from the obligation hereby imposed unless Landlord or the other
tenants shall agree to pay such additional premium.


 


(c)           Provided that
Landlord’s right of full recovery under its policy or policies aforesaid is not
adversely affected or prejudiced thereby, Landlord hereby waives any and all
right of recovery which it might otherwise have against Tenant, its servants,
agents and employees, for loss or damage occurring to the Building and the
fixtures, appurtenances and equipment therein, to the extent the same is covered
by Landlord’s insurance; notwithstanding that such loss or damage may result
from the negligence or fault of Tenant, its servants, agents or employees.  Provided that Tenant’s right of full recovery
under its aforesaid policy or policies is not adversely affected or prejudiced
thereby, Tenant hereby waives any and all right of recovery which it might
otherwise have against Landlord, its servants, and employees, and against every
other tenant in the Building who shall have executed a similar waiver as set
forth in this Section 12.6(c), for loss or damage occurring to Tenant’s
Property to the extent that same is covered by Tenant’s insurance,
notwithstanding that such loss or damage may result from the negligence or
fault of Landlord, its servants, agents or employees, or such other tenant and
the servants, agents or employees thereof.


 


(d)           Landlord and Tenant
hereby agree to advise the other promptly if the clauses to be included in
their respective insurance policies pursuant to Sections 12.6(a) and (b) hereof
cannot be obtained.  Landlord and Tenant
hereby also agree to notify the other promptly of any cancellation or change of
the terms of any such policy which would affect such clauses.


 


12.7.  Except as otherwise
expressly provided in this Lease, Landlord and Tenant each hereby expressly
waives the right to any consequential or punitive damages awarded in or as the
result of any proceeding alleging the failure of Landlord or Tenant, as the
case may be, to observe and perform any of the covenants and conditions
contained in this Lease or otherwise to be performed by Landlord or Tenant,
respectively.


 


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ARTICLE 13


 


DAMAGE OR DESTRUCTION


 


13.1.  (a)  If the Building or the demised premises shall
be partially or totally damaged or destroyed by fire or other casualty (and if
this Lease shall not be terminated as in this Article 13 hereinafter
provided), (i) Landlord shall repair the damage to and restore and rebuild
the Building and the demised premises (including Tenant’s improvements and
betterments which are the property of Landlord pursuant to the provisions of Section 8.10
hereof, but excluding the property which is deemed Tenant’s Property pursuant
to Section 8.11 hereof) (herein called “Landlord’s Restoration Work“) with reasonable dispatch
after learning of the damage or destruction or receiving notice of the damage
or destruction and (ii) Tenant shall repair the damage to and restore and
repair the property which is deemed Tenant’s Property pursuant to Section 8.11
hereof with reasonable dispatch after such damage or destruction (herein called
“Tenant’s Restoration Work“).  Such work by Tenant shall be deemed
Alterations for the purposes of Article 8 hereof.  The proceeds of Tenant’s insurance policies
with respect to Tenant’s Property shall be payable to Tenant.


 


(b)           Tenant shall permit
Landlord access to the demised premises for the purpose of performing the Landlord’s
Restoration Work and any restoration work to the Building which is not the
responsibility of Tenant hereunder.  If
required by Landlord in connection with the performance of the Landlord’s
Restoration Work, Tenant shall promptly remove from the demised premises all or
such items of Tenant’s Property as Landlord may require by written notice (herein
called “Tenant’s Property Removal
Obligation“).  In the
event that Tenant fails to comply with Tenant’s Property Removal Obligation
within twenty (20) business days after the giving of such written notice by
Landlord, Landlord shall have the right to remove and store such Tenant’s
Property at Tenant’s sole cost and expense and with no liability to Landlord.
Tenant shall be solely responsible for arranging for any visits to the demised
premises by Tenant’s insurance adjuster that may be desired by Tenant prior to
the performance by Landlord or Tenant of Tenant’s Property Removal Obligation
or the performance by Landlord of Landlord’s Restoration Work and Landlord
shall be under no obligation to delay the performance of same, nor shall
Landlord have any liability to Tenant, in the event that Tenant fails to do so.


 


13.2.  Subject to the provisions
of Section 13.5 hereof, if all or part of the demised premises shall be
damaged or destroyed or rendered completely or partially untenantable on
account of fire or other casualty, the fixed annual rent and the additional
rent under Articles 4 and 5 hereof shall be abated in the proportion that the
untenantable area of the demised premises bears to the total area of the
demised premises, for the period from the date of the damage or destruction to
the date Landlord’s Restoration Work shall be substantially completed;
provided, however, that if such Landlord’s Restoration Work would have been
substantially completed at an earlier date but for


 


39





















 


Tenant’s having failed to
reasonably cooperate with Landlord, then, provided Landlord shall have notified
Tenant of such failure, Landlord’s Restoration Work shall be deemed to have
been substantially completed on such earlier date; provided further, however,
should Tenant or any of its subtenants reoccupy a portion of the demised
premises during the period Landlord’s Restoration Work is taking place for the
conduct of its business (which shall not include entry upon and occupancy of
the demised premises for the purpose of performing restoration and/or repair to
Tenant’s Property which entry shall be permitted as long as it does not delay
Landlord’s Restoration Work), the fixed annual rent and the additional rent
allocable to such reoccupied portion, based upon the proportion which the area
of the reoccupied portion of the demised premises bears to the total area of
the demised premises, shall be payable by Tenant from the date of such
occupancy.


 


13.3.  (a)  If the Building shall be totally damaged or
destroyed by fire or other casualty, or if the Building shall be so damaged or
destroyed by fire or other casualty (whether or not the demised premises are
damaged or destroyed) that its repair or restoration requires the expenditure
of more than thirty (30%) percent of the full insurable value of the Building
immediately prior to the casualty or if the repair of the demised premises will
require more than two hundred seventy (270) days (as estimated in any such case
within sixty (60) days after the fire or other casualty by a reputable
contractor, registered architect or licensed professional engineer designated
by Landlord who delivers a copy of such estimate to Tenant within such sixty
(60) day period), and provided Landlord shall terminate leases covering no less
than 50% of the office space in the Building then leased to tenants (including
Tenant) in the Building, then in such case Landlord may terminate this Lease by
giving Tenant notice to such effect within one hundred fifty (150) days after
the date of the casualty.  For the
purpose of this Section only, “full insurable value” shall mean replacement
cost less the cost of footings, foundations and other structures below the
street and first floors of the Building. 
In addition, if the Building or the demised premises shall be
substantially damaged or destroyed by fire or other cause at any time during
the last two years of the term of this Lease, then Landlord or Tenant may
cancel this Lease upon written notice to the other party hereto given within
sixty (60) days after such damage or destruction.


 


(b)           In case of any
substantial damage or destruction to the demised premises.  Tenant may cancel this Lease by written
notice to Landlord, if (i) the estimate in Section 13.3(a) exceeds two
hundred seventy (270) days; (ii) within 60 days from the date of the
damage or destruction, Landlord does not file a proof of loss with its insurer;
(iii) within 120 days of the date of damage or destruction Landlord does
not let a contract or contracts which shall provide for the complete
restoration of the demised premises within a period of one year from the date
of the damage or destruction; (iv) work under such contract or contracts
has not commenced within 180 days of the date of said damage or destruction; or
(v) said work is not prosecuted with reasonable diligence to its
completion; provided that Tenant shall not be entitled to cancel this Lease
pursuant to this sentence more than thirty (30) days after Landlord shall have
given written notice to Tenant that the state of facts specified in clause (i),
(ii), (iii), (iv) or (v) of this sentence,


 


40





















 


as the case may be, has
occurred.  The period for the completion
of the required repairs and restoration work shall be extended by the number of
days lost due to Force Majeure Causes.


 


13.4.  Except as expressly
provided in Section 13.3(a) or (b) hereof, Tenant shall not be entitled to
terminate this Lease and Landlord shall have no liability to Tenant for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the demised premises or of the Building pursuant
to this Article 13.  Landlord shall
use reasonable efforts to make such repair or restoration promptly and in such
manner as not unreasonably to interfere with Tenant’s use and occupancy of the
demised premises, but Landlord shall not be required to do such repair or
restoration work except during business hours of business days.


 


13.5.  Notwithstanding any of the
foregoing provisions of this Article 13, if solely by reason of some act
or omission on the part of Tenant or any of its subtenants or its or their
partners, directors, officers, servants, employees, agents or contractors of
which Landlord shall have given Tenant notice and a reasonable opportunity to
cure either, Landlord or any Superior Lessor or any Superior Mortgagee shall be
unable to collect all of the insurance proceeds (including, without limitation,
rent insurance proceeds) applicable to damage or destruction of the demised
premises or the Building by fire or other casualty, then, without prejudice to
any other remedies which may be available against Tenant, there shall be no
abatement or reduction of the fixed annual rent or additional rent, to the
extent that Landlord was unable to collect insurance proceeds.


 


13.6.  Landlord will not carry
insurance of any kind on Tenant’s Property and, except as provided by law or by
reason of Landlord’s negligence or willful misconduct or its breach of any of
its obligations hereunder, shall not be obligated to repair any damage to or
replace Tenant’s Property. Tenant agrees to look first to its insurance for
recovery of any damage to or loss of Tenant’s Property.  Landlord agrees to look first to its insurance
for recovery of damage or loss to the Building.


 


13.7.  The provisions of this Article 13
shall be deemed an express agreement governing any case of damage or
destruction of the demised premises by fire or other casualty, and Section 227
of the Real Property Law of the State of New York, providing for such a
contingency in the absence of an express agreement, and any other law of like
import, now or hereafter in force, shall have no application in such case.


 


ARTICLE 14


 


EMINENT DOMAIN


 


14.1.  In the event that the
whole of the demised premises shall be lawfully condemned or taken in any
manner for any public or quasi-public use or purpose, this Lease and the term
and estate hereby granted shall forthwith cease and terminate as of the date of
vesting of title (herein called the “date of taking”),
and Tenant shall have no


 


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claim against Landlord
for, or make any claim for the value of any unexpired term of this Lease, and
the fixed annual rent and additional rent shall be apportioned as of such date.


 


14.2.  In the event that any part
of the demised premises shall be so condemned or taken, then this Lease shall
be and remain unaffected by such condemnation or taking, except that the fixed
annual rent and additional rent under Articles 4 and 5 hereof allocable to the
part so taken shall be apportioned as of the date of taking; provided, however,
that Tenant may elect to cancel this Lease in the event that it is reasonably impractical
for the Tenant to continue its business therein or more than twenty-five (25%)
percent of the demised premises should be so condemned or taken, provided such
notice of election is given by Tenant to Landlord not later than thirty (30)
days after the date when title shall vest in the condemning authority.  Upon the giving of such notice, this Lease
shall terminate on the thirtieth (30th) day following the date of such notice
and the fixed annual rent and additional rent shall be apportioned as of such
termination date.  Upon such partial
taking and this Lease continuing in force as to any part of the demised
premises, the fixed annual rent and additional rent under Articles 4 and 5
hereof shall be diminished by an amount representing the part of the fixed
annual rent and additional rent properly applicable to the portion or portions
of the demised premises which may be so condemned or taken.  If as a result of the partial taking (and
this Lease continuing in force as to the part of the demised premises not so
taken), any part of the demised premises not taken is damaged, Landlord agrees
with reasonable promptness to restore the damaged portion to the condition
existing immediately prior to the taking, and prosecute the same with
reasonable diligence to its completion. 
In the event Landlord and Tenant are unable to agree as to the amount by
which the fixed annual rent and additional rent shall be diminished, the matter
shall be determined by arbitration in accordance with the provisions of Article 33
of this Lease.  Pending such determination,
Tenant shall pay to Landlord the fixed annual rent and additional rent as fixed
by Landlord, subject to adjustment in accordance with the arbitration and upon
such adjustment Landlord shall pay interest thereon at the rate set forth in Section 20.6.


 


14.3.  Except as otherwise
expressly provided in Section 14.5 hereof, Landlord shall be entitled to
receive the entire award or payment in connection with any taking without
deduction therefrom for any estate vested in Tenant by this Lease and Tenant
shall receive no part of such award except as hereinafter expressly provided in
this Article 14. Tenant hereby expressly assigns to Landlord all of its
right, title and interest in and to every such award or payment; provided,
however, that Tenant shall have the right to make a separate claim for its
moving expenses and to the extent the award otherwise payable to Landlord shall
not be diminished thereby, for any of Tenant’s Property taken.


 


14.4.  In the event that more
than twenty-five (25%) percent of the demised premises shall be so taken and
Tenant shall not have elected to cancel this Lease as above provided, the
entire award for a partial taking shall be paid to Landlord, and
(a) Landlord, at Landlord’s own expense, shall to the extent of the net
proceeds (after


 


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deducting reasonable
expenses including attorneys’ and appraisers’ fees and disbursements) of the
award restore the unaffected part of the demised premises to substantially the
same condition and tenantability as existed prior to the taking to the extent
the same may be feasible (subject to reasonable changes which Landlord shall
deem desirable) and (b) Tenant, at its expense, shall proceed with
reasonable diligence to repair the remaining parts of the demised premises
which are deemed Landlord’s property pursuant to Section 8.11 hereof (provided
that Landlord shall remit to Tenant the portion of the award therefor) and
Tenant’s Property, to substantially their former condition to the extent that
the same may be feasible, subject to reasonable changes which shall be deemed
Alterations.


 


Until said unaffected portion is restored, Tenant
shall be entitled to a proportionate abatement of fixed annual rent and
additional rent under Articles 4 and 5 hereof for that portion of the demised
premises which is being restored and is not usable until the completion of the
restoration or until the said portion of the demised premises is used by
Tenant, whichever occurs sooner.  Said
unaffected portion shall be restored within a reasonable time but not more than
six (6) months after the taking; provided, however, if Landlord is delayed by
strike, lockout, the elements, or other causes beyond Landlord’s control, the
time for completion shall be extended for a period equivalent to the delay (but
not in excess of 120 days).  Should
Landlord fail to complete the restoration within the said six (6) months or the
time as extended, Tenant may elect to cancel this Lease and the term hereby
granted in the manner and with the same results as set forth in the next two
sentences of this Section 14.4.  If
such partial taking shall occur in the last two (2) years of the term hereof,
either party, irrespective of the area of the space remaining, may elect to
cancel this Lease and the term hereby granted, provided such party shall,
within thirty (30) days after such taking, give notice to that effect, and upon
the giving of such notice, the fixed annual rent and additional rent shall be
apportioned and paid to the date of expiration of the term specified and this
Lease and the term hereby granted shall cease, expire and come to an end upon
the expiration of said thirty (30) days specified in said notice.  If either party shall so elect to end this
Lease and the term hereby granted, Landlord need not restore any part of the
demised premises and the entire award for partial condemnation shall be paid to
Landlord, and Tenant shall have no claim to any part thereof, except as to the
items set forth in Section 14.3 hereof where same are applicable.


 


14.5.  If the temporary use or
occupancy of all or any part of the demised premises shall be so taken,
(a) the demised term shall not be reduced or affected in any way,
(b) Tenant shall continue to be responsible for all of its obligations
hereunder and shall continue to pay all fixed annual rent and additional rent
when due and (c) Tenant shall be entitled to receive that portion of the
award which represents reimbursement for the cost of restoration of the demised
premises, compensation for the use and occupancy of the demised premises and
for any taking of Tenant’s Property, except that, if the temporary period of
taking shall extend beyond the expiration of the term of this Lease, the
portion of the award representing compensation for the use and occupancy of the


 


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demised premises shall be
apportioned between Landlord and Tenant as of said expiration date of said term
and Landlord shall receive that portion of the award which represents
reimbursement for the cost of restoration of the demised premises, and all
monies paid as, or as part of, an award for temporary use and occupancy for a
period beyond the date to which the fixed annual rent and additional rent have
been paid shall be received, held and applied by Tenant for payment of the
fixed annual rent and additional rent becoming due hereunder.


 


ARTICLE 15


 


ASSIGNMENT, SUBLETTING
AND MORTGAGING


 


15.1.  Except as otherwise
expressly specified herein, Tenant shall not, whether voluntarily,
involuntarily or by operation of law or otherwise, (a) assign in whole or
in part or otherwise transfer in whole or in part this Lease or the term and
estate hereby granted, (b) sublet the demised premises or any part thereof
or allow the same to be used, occupied or utilized by others or in violation of
Article 2 hereof, (c) mortgage, pledge, encumber or otherwise
hypothecate this Lease or the demised premises or any part thereof in any
manner, (d) subject to the provisions of Section 15.16, permit the
demised premises or any part thereof to be occupied or used for desk space,
mailing privileges or otherwise, by others or (e) advertise, or authorize
a broker to advertise, for a subtenant or an assignee, without, in each
instance, obtaining the prior consent of Landlord.  Except as hereinafter expressly specified, for
purposes of this Article 15: (i) if Tenant (or any subtenant) is a
corporation, the provisions of clause (a) of this Section 15.1 shall
apply to a transfer (however accomplished, whether in a single transaction or
in a series of related or unrelated transactions) of stock (or any other
mechanism such as, by way of example, the issuance of additional stock, a stock
voting agreement or change in class(es) of stock) which results in a change of
control of Tenant (or such subtenant) as if such transfer of stock (or other
mechanism) which results in a change of control of Tenant (or such subtenant)
were an assignment of this Lease (including, without limitation, and by way of
example only, the transfer of a majority of the outstanding voting stock of a
company, which company owns one hundred percent (100%) of a second tier
company, which in turn owns fifty-one percent (51%) of the outstanding voting
stock of a corporate tenant hereunder), except that the direct or indirect transfer
of the outstanding capital stock of Tenant, any subtenant or any corporate
owner of either at any level by persons or parties though the “over the counter
market” or through any recognized stock exchange, (other than those deemed “insiders”
within the meaning of the Securities Exchange Act of 1934, as amended) shall
not be deemed an assignment of this Lease, and if Tenant (or such subtenant) is
a partnership or joint venture or limited liability company (herein called a “LLC“), said provisions shall apply with
respect to a direct or indirect transfer (by one or more transfers) of an
interest in such partnership, joint venture or LLC (or other mechanism, such
as, by way of example, the creation of additional general partnership or
limited partnership interests) which results in a change of control of such
partnership, joint venture or LLC, or of a corporation, partnership, joint
venture or LLC which


 


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controls such entity, as
if such transfer of an interest in such partnership, joint venture or LLC (or
other mechanism) which results in a change of control of such partnership,
joint venture or LLC were an assignment of this Lease (including, without
limitation, and by way of example only, the transfer of a majority of the
interests in a partnership, which partnership owns one hundred percent (100%)
of a second tier partnership, which in turn owns fifty-one percent (51%) of the
interests in a partnership tenant hereunder), (ii) any person or legal
representative of Tenant, to whom Tenant’s interest under this Lease passes by
operation of law, or otherwise, shall be bound by the provisions of this Article 15
and (iii) an extension or other material modification or amendment of a sublease
shall be deemed a sublease.  For purposes
of this Section 15.1, the term “control“
shall mean, in the case of a corporation, ownership or voting control, directly
or indirectly, of at least fifty percent (50%) of all the voting stock, and in
case of a joint venture or partnership or similar entity, ownership or voting
control, directly or indirectly, of at least fifty percent (50%) or all the
general or other partnership (or similar) interests therein.  Any agreement pursuant to which
(A) Tenant is relieved from the obligation to pay, or a third party agrees
to pay on Tenant’s behalf, all or a part of fixed annual rent or additional
rent under this Lease, and/or (B) such third party undertakes or is
granted any right to assign or attempt to assign this Lease or sublet or
attempt to sublet all or any portion of the demised premises, shall be deemed a
transfer of this Lease and subject to the provisions of this Section 15.1.


 


15.2.  The provisions of Section 15.1
hereof shall not apply to an assignment (or deemed assignment or assignment by
operation of law) to any entity into or with which Tenant (or any permitted
subtenant of Tenant) or any entity having an interest, direct or indirect, in
Tenant (and/or any subtenant) is merged or consolidated or to transactions with
any entity to which substantially all of Tenant’s or any such other entity’s assets
are transferred, provided that in any of such events (i) the successor to
Tenant, such other entity or assignee is a reputable entity of good character
and Tenant or such successor thereto has a net worth (as such term is
hereinafter defined) at least equal to the net worth of Tenant as of the date
that is ninety (90) days prior to such merger, consolidation or transfer,
(ii) proof reasonably satisfactory to Landlord of such net worth shall
have been delivered to Landlord not more than ten (10) days after the effective
date of any such transaction, (iii) a duplicate original instrument of
assignment if applicable, duly executed and acknowledged by Tenant, shall have
been delivered to Landlord not more than ten (10) days after the effective date
of any such transaction, (iv) an instrument if applicable, duly executed
and acknowledged by the assignee, in which such assignee assumes observance and
performance of, and agrees to be personally bound by, all of the terms,
covenants and conditions of this Lease on Tenant’s part to be performed and
observed after the effective date thereof shall have been delivered to Landlord
not more than ten (10) days after the effective date of any such transaction,
and (v) such merger, consolidation or asset sale shall be for a good
business purpose and not principally for the purpose of transferring this
Lease.  Furthermore, the provisions of Section 15.1
hereof shall not be deemed to prohibit the simultaneous occupancy of the
demised premises by, or a subletting of all or a portion of the demised
premises to, any entity which controls or


 


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is controlled by Tenant
or is under common control with Tenant (herein called a “Tenant’s
Affiliate“); provided, however that (A) Landlord shall be
given prompt written notice of any such sublease or occupancy arrangement
accompanied by reasonable evidence of such affiliate relationship, and
(B) the cessation of such affiliate relationship while such sublease or
occupancy is continuing shall be deemed a transaction to which all of the terms
of this Article 15 shall apply.  For
purposes hereof, the term “net worth” shall mean the excess of total assets
over total liabilities; total assets and total liabilities each being
determined in accordance with generally accepted accounting principles
consistently applied.


 


15.3.  Save for a merger or
consolidation, any assignment or transfer, whether made with Landlord’s consent
as required by Section 15.1 or without Landlord’s consent pursuant to Section 15.2,
shall be made only if the assignee shall execute, acknowledge and deliver to
Landlord a recordable agreement, whereby the assignee shall assume the obligations
and performance of this Lease to thereafter be performed by Tenant and agree to
be personally bound by and upon all of the covenants, agreements, terms,
provisions and conditions hereof on the part of Tenant to be performed or
observed and whereby the assignee shall agree that the provisions of Section 15.1
hereof shall, notwithstanding such an assignment or transfer, continue to be
binding upon it in respect of all future assignments and transfers.  The assumption of obligations provided for in
the immediately preceding sentence shall be made (i) effective as of the
Commencement Date in connection with a merger, consolidation, reorganization or
any other assignment or transfer by operation of law or (ii) effective as
of the effective date of such assignment in connection with an assignment to a
third party that is not described in clause (i) of this sentence.  Tenant covenants that, notwithstanding any
assignment or transfer, whether or not in violation of the provisions of this
Lease, and notwithstanding the acceptance of fixed annual rent and/or
additional rent by Landlord from an assignee, transferee or any other party,
Tenant shall remain fully liable for the payment of the fixed annual rent and
additional rent due and to become due under this Lease and for the performance
and observance of all of the covenants, agreements, terms, provisions and
conditions of this Lease on the part of Tenant to be performed or observed.


 


15.4.  The joint and several
liability of Tenant and any immediate or remote successor-in-interest of
Tenant, and the due performance of this Lease on Tenant’s part, shall not be
discharged, released or impaired in any respect by an agreement or stipulation
made by Landlord or any grantee or assignee, by way of mortgage, or otherwise,
of Landlord, extending the time of, or modifying any of the obligations of this
Lease, or by any waiver or failure of Landlord to enforce any of the
obligations of this Lease, which shall remain in full force and effect and
Tenant shall continue liable hereunder. 
If any such agreement or modification operates to increase the
obligations of a tenant under this Lease, the liability under this Section 15.4
of the tenant named in this Lease or any of its successors in interest (unless
such party shall have expressly consented in writing to such agreement or
modification) shall continue to be no greater than if such agreement or
modification had not been made.


 


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15.5.  If this Lease be assigned,
whether or not in violation of the provisions of this Lease, Landlord may
collect rent from the assignee.  If the
demised premises or any part thereof are sublet or used or occupied by anybody
other than Tenant, whether or not in violation of this Lease, Landlord may, after
default by Tenant, and expiration of Tenant’s time to cure such default,
collect rent from the subtenant or occupant. 
In either event, Landlord may apply the net amount collected to the
fixed annual rent and additional rent herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of the
provisions of Section 15.1 hereof, or the acceptance of the assignee,
subtenant or occupant as tenant, or a release of Tenant from the performance by
Tenant of Tenant’s obligations under this Lease.  The consent by Landlord to a particular
assignment, mortgaging, subletting or use or occupancy by others shall not in
any way be considered a consent by Landlord to any other or further assignment,
mortgaging or subletting or use or occupancy by others not expressly permitted
by this Article 15.  References in
this Lease to use or occupancy by others (that is, anyone other than Tenant)
shall not be construed as limited to subtenants and those claiming under or
through subtenants but shall also include licensees and others claiming under
or through Tenant, immediately or remotely.


 


15.6.  The listing of any name
other than that of Tenant, whether on the doors of the demised premises or the
Building directory, or otherwise, shall not operate to vest any right or
interest in this Lease or in the demised premises, nor shall it be deemed to be
the consent of Landlord to any assignment or transfer of this Lease or to any
sublease of the demised premises or to the use or occupancy thereof by others.


 


15.7.  Notwithstanding anything
to the contrary contained in this Article 15, if Tenant shall at any time
or times during the term of this Lease desire to assign this Lease or sublet
all or part of the demised premises and Landlord’s consent shall be required
therefore pursuant to the terms hereof, Tenant shall give notice thereof to
Landlord (herein called a “Marketing Notice“),
which notice shall set forth (a) in the case of a proposed subletting, the
area proposed to be sublet, and, in the case of a proposed assignment such
notice shall set forth Tenant’s intention to assign this Lease, (b) the
term of the proposed subletting including the proposed dates of the
commencement and the expiration of the term of the proposed sublease or the effective
date of the proposed assignment, as the case may be, and (c) the rents,
work contributions, and all other material provisions that are proposed to be
included in the transaction.  Tenant
shall also provide Landlord with such other information as Landlord may
reasonably request.  Except for any
assignment or sublease which does not require Landlord’s consent pursuant to Section 15.2
hereof, such Marketing Notice shall be deemed an irrevocable offer from Tenant
to Landlord whereby Landlord (or Landlord’s designee) may, at its option, (i) terminate
this Lease (if the proposed transaction is an assignment or a sublease for all
or substantially all of the balance of the term of this Lease with respect to
all or substantially all of the demised premises), or (ii) terminate this
Lease with respect to the space covered by the proposed sublease (if the
proposed transaction is a sublease of part of the demised premises for all or
substantially all of the


 


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balance of the term of
this Lease).  Said option may be
exercised by Landlord by notice to Tenant at any time within thirty (30) days
after such notice has been given by Tenant to Landlord and Landlord shall have
received all other information required to be furnished to Landlord by Tenant
pursuant to the provisions of this Section 15.7 (a), (b) and (c); and
during such thirty (30) day period Tenant shall not assign this Lease or sublet
such space to any person.


 


15.8.  If Landlord exercises its
option to terminate this Lease in the case where Tenant desires either to
assign this Lease or sublet all or substantially all of the demised premises
for all or substantially all of the balance of the term of this Lease, then,
this Lease shall end and expire on the date that such assignment or sublet was
to be effective or commence, as the case may be, and the fixed annual rent and
additional rent shall be paid and apportioned to such date.


 


15.9.  If Landlord exercises its
option to terminate this Lease with respect to the space covered by Tenant’s
proposed sublease in any case where Tenant desires to sublet part of the
demised premises for all or substantially all of the balance of the term of
this Lease, then (a) this Lease shall end and expire with respect to such
part of the demised premises on the date that the proposed sublease was to
commence; (b) from and after such date the fixed annual rent, additional
rent and The Percentage shall be adjusted, based upon the proportion that the
rentable area of the demised premises remaining bears to the total rentable
area of the demised premises; and (c) Tenant shall pay to Landlord, upon
demand, as additional rent hereunder the costs incurred by Landlord in
physically separating such part of the demised premises from the balance of the
demised premises and in complying with any laws and requirements of any public
authorities relating to such separation.


 


15.10.      In the event Landlord
does not exercise its options pursuant to Section 15.7 hereof to so
terminate (in whole or in part) this Lease and providing that Tenant is not in
default of any of Tenant’s obligations under this Lease after the giving of
notice and the expiration of any applicable cure period, Landlord’s consent
(which must be in writing and in form reasonably satisfactory to Landlord) to
the proposed assignment or sublease shall not be unreasonably withheld,
conditioned or delayed (and which shall be granted or denied within thirty (30)
days after receipt of the materials specified in Section 15.10(a)), provided
and upon condition that:


 


(a)           Tenant shall have
delivered to Landlord within one (1) year after the giving of the applicable
Marketing Notice: (i) a duplicate original of the sublease or assignment
instrument, (ii) all other documents to be executed in connection
therewith, (iii) in reasonable detail the identity of the proposed
assignee or subtenant, the nature of its business and its proposed use of the
demised premises and (iv) in connection with a proposed assignment of this
Lease, current financial information with respect to the proposed assignee
including, without limitation, its most recent financial report;


 


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(b)           In Landlord’s
reasonable judgment the proposed assignee or subtenant is engaged in a business
and the demised premises, or the relevant part thereof, will be used in a
manner which (i) is in keeping with the then standards of the Building,
and (ii) will not violate any negative covenant as to use contained in any
other lease of space in the Building (and Landlord shall advise Tenant of any
such negative covenants in writing promptly after written request therefor by
Tenant made in connection with a proposed subletting or assignment; Landlord
hereby advising Tenant that no such covenants exist on the date hereof);


 


(c)           The proposed
assignee or subtenant is a reputable person or entity of good character and,
with respect to a proposed assignee, with sufficient financial worth
considering the responsibility involved, and Landlord has been furnished with
reasonable proof thereof;


 


(d)           Provided that
Landlord shall have space comparable in size then available, or to become
available, for leasing in the Building, within six (6) months from the
effective date of the proposed assignment or subletting, as the case may be,
neither (x) the proposed assignee or sublessee nor (y) any person
which, directly, controls, is controlled by, or is under common control with,
the proposed assignee or sublessee or any person who controls the proposed
assignee or sublessee, is then an occupant of any part of the Building or a
party who actually dealt with Landlord or Landlord’s agent (directly or through
a broker) with respect to space in the Building during the six (6) months
immediately preceding Tenant’s request for Landlord’s consent;


 


(e)           The form of the
proposed sublease shall be reasonably satisfactory to Landlord and shall comply
with the applicable provisions of this Article 15;


 


(f)            The demised
premises shall not be subdivided into more than three (3) separate units;


 


(g)           Tenant shall,
together with requesting Landlord’s consent hereunder, have paid Landlord a
processing fee to review the requested consent equal to $2,500.00 (which amount
shall be increased annually commencing with July 2005, determined by
multiplying the amount for the immediately prior twelve (12) month period by
the percentage increase in the CPI from the immediately preceding July to the
CPI for July of the then-current year); and


 


(h)           Tenant shall not
have advertised the availability of the demised premises in an advertisement
stating the name (as distinguished from the address) of the Building or the
proposed rental.


 


15.11.  (a)  In the event that in connection with Tenant’s
request for Landlord’s consent pursuant to Section 15.11  hereof, the proposed sublease or proposed
assignment delivered to Landlord contains provisions which are “substantially
different from” the terms set forth in the Marketing Notice delivered to
Landlord pursuant to


 


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Section 15.7 hereof,
then in such event, Tenant’s request for consent pursuant to Section 15.11
hereof shall be deemed to be an irrevocable offer from Tenant to Landlord as to
which Landlord shall have the option set forth in Section 15.7 hereof.  The terms of a proposed sublet or proposed
assignment shall be deemed “substantially
different from“ the terms set forth in the Marketing Notice
delivered to Landlord pursuant to Section 15.7 hereof if the economic
terms of such proposed sublet or assignment on an aggregate basis differ by
more than five (5%) percent from the terms contained in the Marketing Notice
delivered to Landlord pursuant to Section 15.7 hereof.


 


(b)           In the event that
Landlord fails to exercise any of its options under Section 15.7 hereof,
and Tenant fails to request Landlord’s consent to an assignment or sublease on
the terms and conditions set forth in the notice delivered to Landlord pursuant
to Section 15.7 hereof within one (1) year from the date of Landlord’s
response to such notice; then, Tenant shall again comply with all of the
provisions and conditions of Section 15.7 hereof before assigning this
Lease or subletting all or part of the demised premises.


 


15.12.      With respect to each
and every sublease or subletting authorized by Landlord under the provisions of
this Lease, it is further agreed:


 


(a)           No subletting shall
be for a term (including any renewal or extension options contained in the
sublease) ending later than one day prior to the expiration date of this Lease.


 


(b)           No subtenant shall
take possession of the demised premises or any part thereof, until an executed
counterpart of such sublease (and all ancillary documents executed in
connection with, with respect to or modifying such sublease) has been delivered
to Landlord.


 


(c)           Each sublease shall
provide that it is subject and subordinate to this Lease and to any matters to
which this Lease is or shall be subordinate, and that in the event of
termination, reentry or dispossess by Landlord under this Lease Landlord may,
at its option, take over all of the right, title and interest of Tenant, as
sublessor, under such sublease, 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 (i) liable for any previous act or
omission of Tenant under such sublease, (ii) subject to any credit,
offset, claim, counterclaim, demand or defense which such subtenant may have
against Tenant, (iii) bound by any previous modification of such sublease
or by any previous prepayment of more than one (1) month’s rent,
(iv) bound by any covenant of Tenant to undertake or complete any
construction of the demised premises or any portion thereof, (v) required
to account for any security deposit of the subtenant other than any security
deposit actually delivered to Landlord by Tenant, (vi) bound by any
obligation to make any payment to such subtenant or grant any credits, except
for services, repairs, maintenance and restoration provided for under the
sublease to be performed after the date of such attornment,
(vii) responsible for any monies owing by Landlord to the credit


 


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of Tenant or
(viii) required to remove any person occupying the demised premises or any
part thereof.


 


(d)           Each sublease shall
provide that the subtenant may not assign its rights thereunder or further
sublet the space demised under the sublease, in whole or in part, except in
compliance with all of the terms of provisions of this Article 15, and all
provisions of this Article 15 shall apply to any such further assignment
or subletting, including, without limitation, Section 15.11 hereof, except
that in the case of a subletting by Tenant and a further subletting by the
subtenant, Section 15.14 shall be deemed amended to provide that Landlord
shall be entitled to receive 50% of any subletting profit received by such
subtenant (without any duplication of payments) only to the extent that
Landlord would have been entitled to such profit if such further subletting was
a direct sublease by Tenant (e.g., if and to
the extent that the sub-subrents, after deducting Tenant’s Costs, exceed the
rents payable by Tenant under this Lease on a per rentable square foot basis).


 


15.13.  (a)  If Landlord shall give its consent to any
assignment of this Lease or to any sublease, Tenant shall in consideration
therefor, pay to Landlord, as additional rent an amount equal to fifty (50%)
percent of any Assignment Profit or Sublease Profit, as the case may be.


 


(b)           For purposes of this
Section 15.14, the term “Assignment
Profit“ shall mean an amount equal to all sums and other
consideration paid to Tenant by the assignee for or by reason of such
assignment (including, without limitation, sums paid for the sale or rental of
Tenant’s fixtures, leasehold improvements, equipment, furniture, furnishings or
other personal property, less, in the case of the sale thereof, the net
unamortized cost thereof determined on the basis of Tenant’s federal income tax
returns and, in the case of the rental thereof, the fair rental value thereof),
after deducting therefrom the amount of “Tenant’s Costs”, as hereinafter
defined.


 


(c)           For purposes of this
Section 15.14, the term “Sublease
Profit“ shall mean in any year of the term of this Lease
(i) any rents, additional charges or other consideration paid under the
sublease to Tenant by the subtenant which is in excess of the fixed annual rent
and additional rent accruing during such year of the term of this Lease in
respect of the subleased space (at the rate per square foot payable by Tenant
hereunder) pursuant to the terms hereof, and (ii) all sums paid for the
sale or rental of Tenant’s fixtures, leasehold improvements, equipment,
furniture or other personal property, less, in the case of the sale thereof,
the net unamortized cost thereof determined on the basis of Tenant’s federal
income tax returns and, in the case of the rental thereof, the fair rental
value thereof, which net unamortized amount shall be deducted from the sums paid
in connection with such sale in equal monthly installments over the balance of
the term of the sublease (each such monthly deduction to be in an amount equal
to the quotient of the net unamortized amount, divided by the number of months
remaining in the term of this Lease) after deducting therefrom the amount of
Tenant’s Costs.


 


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(d)           The sums payable
under this Section 15.14 shall be paid to Landlord within thirty (30) days
after being paid by the assignee or subtenant to Tenant and collected by Tenant.


 


(e)           For purposes of this
Section 15.14, the term “Tenant’s
Cost“ shall mean the reasonable expenses actually incurred by
Tenant in connection with the assignment and subletting in question for sales,
gains and transfer taxes, brokerage commissions, advertising expenses,
attorneys’ fees and disbursements, any commercially reasonable rent credit or
concession or work allowance and any tenant work performed by Tenant at its
expense in connection with such assignment or subletting based on bills,
receipts or other evidence of such costs reasonably satisfactory to Landlord.


 


15.14.      Except for any
subletting by Tenant to Landlord or its designee pursuant to the provisions of
this Article 15, each subletting shall be subject to all of the covenants,
agreements, terms, provisions and conditions contained in this Lease.  If Landlord shall decline to give its consent
to any proposed assignment or sublease, or if Landlord shall exercise any of
its options under Section 15.7 hereof, Tenant shall indemnify, defend and
hold harmless Landlord against and from any and all loss, liability, damages,
costs and expenses (including, without limitation, reasonable attorneys’ fees
and disbursements) resulting from any claims that may be made against Landlord
by the proposed assignee or sublessee or by any brokers or other persons
claiming a commission or similar compensation in connection with the proposed
assignment or sublease.


 


15.15.      Notwithstanding
anything to the contrary contained herein, Tenant shall not be required to
obtain Landlord’s consent to the use of desk space in the demised premises (i.e., space which is part of the demised premises
and not separately demised from the balance of the demised premises and which
shares reception and other access and facilities therewith), consisting of not
more than six (6) offices at any one time, by other persons or entities (the “Permitted Occupants”), provided
that the Permitted Occupants shall use the demised premises only for the
purposes permitted under this Lease and such use shall be consistent with the
continued operation of the Building as a first-class office building.  Permission to such Permitted Occupants to use
the demised premises shall not create a tenancy or any other interest in the demised
premises except a license which shall cease and expire in any event
automatically without notice upon the expiration or termination of this Lease
and all acts, omissions and operations of such Permitted Occupants shall be
deemed acts, omissions and operations of the Tenant.


 


ARTICLE 16


 


ACCESS TO DEMISED
PREMISES; CHANGES


 


16.1.  Tenant shall permit
Landlord and persons authorized by Landlord to install, erect, use and maintain
pipes, ducts and conduits in and through the demised premises, provided the
same are concealed behind walls and ceilings of the demised


 


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premises and are
installed by such methods and at such locations as will not interfere with or
impair Tenant’s layout or use of the demised premises except to a de minimis extent. 
Landlord or its agents or designees shall have the right, but only upon
reasonable advance notice made to Tenant or any authorized employee of Tenant
at the demised premises, except in cases of emergency, to enter the demised
premises at reasonable times, (a) after business hours for the making of
such repairs, alterations, additions and improvements as Landlord may deem
necessary in or to the demised premises and/or in or to the Building or its facilities
and equipment or which Landlord shall be required to or shall have the right to
make by the provisions of this Lease, (b) subject to the foregoing, shall
also have the right to enter the demised premises for the purpose of inspecting
them or exhibiting them to prospective purchasers or lessees of the entire
Building or to prospective mortgagees of the fee or of the Landlord’s interest
in the property of which the demised premises are a part or to prospective
assignees of any such mortgages or to the holder of any mortgage on Landlord’s
interest in the property, its agents or designees and (c) to read any
utility meters located therein.  Landlord
shall be allowed to temporarily take all material into and upon the demised
premises that may be required for the repairs, alterations, additions and/or
improvement above mentioned as the same is required for such purpose without
any liability to Tenant and without any reduction of Tenant’s covenants and
obligations under this Lease and without the same constituting an eviction of
Tenant in whole or in part, and the rent reserved shall in no wise abate,
except as otherwise expressly provided in this Lease, while said repairs,
alterations, additions and/or improvements are being made, by reason of loss or
interruption of the business of Tenant because of the prosecution of any such
work.  Landlord shall diligently proceed
in the prosecution of such work and shall exercise reasonable efforts to
minimize any disturbance with Tenant’s business operations.


 


16.2.  Landlord reserves the
right, at any time, without it being deemed a constructive eviction and without
incurring any liability to Tenant therefor, or affecting or reducing any of
Tenant’s covenants and obligations hereunder, to make or permit to be made such
changes, alterations, additions and improvements in or to the Building and the
fixtures and equipment thereof as Landlord shall deem necessary or desirable,
and to change the arrangement and/or location of public entrances, passageways,
doors, doorways, corridors, elevators, stairways, toilets and other public
parts of the Building; provided, however, that access to the Building shall not
be cut off and that there shall be no unreasonable obstruction of access to the
demised premises or unreasonable interference with the use or enjoyment
thereof.


 


16.3.  Tenant shall have (and is
hereby granted) the right to use (on a non-exclusive basis) the shafts and
risers serving the demised premises or running therefrom to the roof and
basement of the Building to the extent that Landlord, acting reasonably and in
a non-discriminating manner, determines that space exists in such shafts and
risers for Tenant’s use.


 


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16.4.  Landlord may, during the twelve
(12) months prior to expiration of the term of this Lease, exhibit the demised
premises to prospective tenants.


 


16.5.  If Tenant shall not be
personally present to open and permit an entry into the demised premises at any
time when for any reason an entry therein shall be urgently necessary by reason
of fire or other emergency, Landlord or Landlord’s agents may enter the same
without notice and without rendering Landlord or such agents liable therefor
(if during such entry Landlord or Landlord’s agents shall accord reasonable
care to Tenant’s property) and without in any manner affecting the obligations
and covenants of this Lease.


 


16.6.  Except for the space
within the inside surfaces of all walls, hung ceilings, floors, windows and
doors bounding the demised premises, all of the Building, including, without
limitation, exterior and atrium Building walls, core corridor walls and doors
and any core corridor entrance, any terraces or roofs adjacent to the demised
premises, and any space in or adjacent to the demised premises used for shafts,
stacks, pipes, conduits, fan rooms, ducts, electric or other utilities, sinks
or other Building facilities, and the use thereof are reserved to Landlord and
persons authorized by Landlord.


 


ARTICLE 17


 


CERTIFICATE OF OCCUPANCY


 


17.1.  Tenant shall not at any
time use or occupy the demised premises or the Building, or suffer or permit
anyone to use or occupy the demised premises, or do anything in the demised
premises or the Building, or suffer or permit anything to be done in, brought into
or kept on the demised premises, which in any manner violates the Certificate
of Occupancy for the demised premises or for the Building.  Landlord agrees to maintain in full force and
effect a certificate of occupancy for the Building (temporary or permanent)
permitting the demised premises to be used for executive and general offices,
and will not cause or permit such certificate of occupancy to be modified so as
to adversely affect, other than to a de minimis
extent, Tenant’s use or occupancy of the Premises for executive and general
offices.


 


ARTICLE 18


 


BANKRUPTCY


 


18.1.  Subject to the provisions
of Section 18.3 hereof, if at any time prior to the Commencement Date
there shall be filed by or against Tenant in any court pursuant to any statute
either of the United States or of any State a petition in bankruptcy or
insolvency or for reorganization or for the appointment of a receiver or a
trustee of all or a portion of Tenant’s property, or if Tenant makes an
assignment for the benefit of creditors, or petitions for or enters into an
arrangement with creditors, this Lease shall


 


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ipso facto be canceled
and terminated, in which event neither Tenant nor any person claiming through
or under Tenant or by virtue of any statute or of an order of any court shall
be entitled to possession of the demised premises and Landlord, in addition to
the other rights and remedies given by Section 18.4 hereof and by virtue
of any other provision herein or elsewhere in this Lease contained or by virtue
of any statute or rule of law, may retain as liquidated damages any fixed
annual rent, additional rent, security deposit or monies received by it from
Tenant or others in behalf of Tenant.


 


18.2.  Subject to the provisions
of Section 18.3 hereof, if at the Commencement Date or if at any time
during the term hereby demised there shall be filed by or against Tenant in any
court pursuant to any statute either of the United States or of any State a
petition in bankruptcy or insolvency or for reorganization or for the
appointment of a receiver or trustee of all or a portion of Tenant’s property, or
if Tenant makes an assignment for the benefit of creditors, or petitions for or
enters into an arrangement with creditors, Landlord may, at Landlord’s option,
serve upon Tenant or any such trustee, receiver, or assignee, a notice in
writing stating that this Lease and the term hereby granted shall cease and
expire on the date specified in said notice, which date shall be not less than
ten (10) days after the serving of said notice, and this Lease and the term
hereof shall then expire on the date so specified as if that date had
originally been fixed in this Lease as the expiration date of the term herein
granted.  Thereupon, neither Tenant nor
any person claiming through or under Tenant by virtue of any statute or of an
order of any court shall be entitled to possession or to remain in possession
of the demised premises but shall forthwith quit and surrender the demised
premises, and Landlord, in addition to the other rights and remedies given by Section 18.4
hereof and by virtue of any other provision herein or elsewhere in this Lease
contained or by virtue of any statute or rule of law, may retain as liquidated
damages any fixed annual rent, additional rent, security deposit or monies
received by it from Tenant or others in behalf of Tenant.


 


18.3.  In the event that during
the periods set forth in Sections 18.1 and 18.2 hereof there shall be
instituted against Tenant an involuntary proceeding for bankruptcy, insolvency,
reorganization or any other relief described in Section 18.1 and/or 18.2
hereof, Tenant shall have ninety (90) days in which to vacate or stay the same
before this Lease shall terminate or before Landlord shall have any right to
terminate this Lease, provided the fixed annual rent and additional rent then
in arrears, if any, are paid within fifteen (15) days after the institution of
such proceeding, and further provided that the fixed annual rent and additional
rent which shall thereafter become due and payable are paid when due, and
Tenant shall not otherwise be in default in the performance of the terms and
covenants of this Lease.


 


18.4.  In the event of the
termination of this Lease pursuant to Sections 18.1, 18.2 or 18.3 hereof,
Landlord shall forthwith, notwithstanding any other provisions of this Lease to
the contrary, be entitled to recover from Tenant as and for liquidated damages
an amount equal to the difference between the rent reserved


 


55





















 


hereunder for the
unexpired portion of the term demised and the then fair and reasonable rental
value of the demised premises for the same period, if lower than the rent
reserved at the time of termination.  If
the demised premises or any part thereof be re-let by Landlord for the
unexpired term of this Lease, or any part thereof, before presentation of proof
of such liquidated damages to any court, commission or tribunal, the amount of
rent reserved upon such re-letting shall be prima facie the fair and reasonable
rental value for the part or the whole of the demised premises so re-let during
the term of the re-letting.  Nothing
herein contained shall limit or prejudice the right of Landlord to prove for
and obtain as liquidated damages by reason of such termination an amount equal
to the maximum allowed by any statute or rule of law in effect at the time
when, and governing the proceedings in which such damages are to be proved,
whether or not such amount be greater, equal to, or less than the amount of the
difference referred to above.


 


18.5.  (a)  If Tenant shall have assigned its interest in
this Lease, and this Lease shall thereafter be disaffirmed or rejected by the
assignee in any proceeding under the United States Bankruptcy Code or under the
provisions of any Federal, state or foreign law of like import, or in the event
of termination of this Lease by reason of any such proceeding, the assignor or
any of its predecessors in interest under this Lease, upon request of Landlord
given within ninety (90) days after such disaffirmance or rejection shall
(a) pay to Landlord all fixed annual rent and additional rent then due and
payable to Landlord under this Lease to and including the date of such
disaffirmance or rejection and (b) enter into a new lease as lessee with
Landlord of the demised premises for a term commencing on the effective date of
such disaffirmance or rejection and ending on the Expiration Date, unless
sooner terminated as in such lease provided, at the same fixed annual rent and
additional rent and upon the then executory terms, covenants and conditions as
are contained in this Lease, except that (i) the rights of the lessee
under the new lease, shall be subject to any possessory rights of the assignee
in question under this Lease and any rights of persons claiming through or
under such assignee, (ii) such new lease shall require all defaults
existing under this Lease to be cured by the lessee with reasonable diligence,
and (iii) such new lease shall require the lessee to pay all additional
rent which, had this Lease not been disaffirmed or rejected, would have become
due after the effective date of such disaffirmance or rejection with respect to
any prior period.  If the lessee shall
fail or refuse to enter into the new lease within thirty (30) days after
Landlord’s request to do so and receipt of permission of the Bankruptcy Court
having jurisdiction, then in addition to all other rights and remedies by
reason of such default, under this Lease, at law or in equity, Landlord shall
have the same rights and remedies against the lessee as if the lessee had
entered into such new lease and such new lease had thereafter been terminated
at the beginning of its term by reason of the default of the lessee thereunder.


 


(b)           If pursuant to the
Bankruptcy Code Tenant is permitted to assign this Lease in disregard of the
restrictions contained in Article 15 hereof (or if this Lease shall be
assumed by a trustee), the trustee or assignee shall cure any default under
this Lease and shall provide adequate assurance of future performance by the
trustee or


 


56





















 


assignee including
(a) of the source of payment of rent and performance of other obligations
under this Lease and that any such assignee of this Lease shall have a net
worth, computed in accordance with generally accepted accounting principles,
equal to at least ten (10) times the aggregate of the fixed annual rent
reserved hereunder plus all additional rent for the preceding calendar year as
aforesaid and (b) that the use of the demised premises shall in no way
diminish the reputation of the Building as a first-class office building or
impose any additional burden upon the Building or increase the services to be
provided by Landlord.  If Tenant’s
trustee, Tenant or Tenant as debtor-in-possession assumes this Lease and
proposes to assign the same (pursuant to Title 11 U.S.C. Section 365, as
the same may be amended) to any person, including, without limitation, any
individual, partnership or corporate entity, who shall have made a bona fide
offer to accept an assignment of this Lease on terms acceptable to the trustee,
Tenant or Tenant as debtor-in-possession, then notice of such proposed
assignment, setting forth (i) the name and address of such person,
(ii) all of the terms and conditions of such offer, and (iii) the
adequate assurance to be provided Landlord to assure such person’s future
performance under this Lease, including, without limitation, the assurances
referred to in Title 11 U.S.C. Section 365(b)(3) (as the same may be
amended), shall be given to Landlord by the trustee, Tenant or Tenant as
debtor-in-possession no later than twenty (20) days after receipt by the
trustee, Tenant or Tenant as debtor-in-possession of such offer, but in any
event no later than ten (10) days prior to the date that the trustee, Tenant or
Tenant as debtor-in-possession shall make application to a court of competent
jurisdiction for authority and approval to enter into such assignment and
assumption.


 


ARTICLE 19


 


DEFAULT


 


19.1.  If


 


(a)           Tenant shall default
in the payment of any fixed annual rent or recurring installments of additional
rent due pursuant to Articles 4 or 5 hereof and (x) such default
shall continue for ten (10) days after written notice thereof has been given to
Tenant (the “Rent Default Cure Period”)
and (y) with respect only to the first such default in the payment of any
fixed annual rent or such recurring installment of additional rent to occur in
any twelve (12) month period, such default shall continue for five (5) days
after a second written notice thereof has been given to Tenant, which second
notice has been given after the expiration of the Rent Default Cure Period, or


 


(b)           Tenant defaults in
fulfilling any of the obligations under this Lease, other than the payment of
fixed annual rent or recurring installments of additional rent (for default of
which clause (a) of this Section 19.1 is applicable), then upon
Landlord serving a written twenty (20) days’ notice upon Tenant specifying the nature
of said default and upon the expiration of said twenty (20) days, if Tenant
shall have failed to comply with or remedy such default, or if said default
shall be of such a nature that the


 


57





















 


same cannot with due
diligence be completely cured within said twenty (20) day period and the
continuance of which for the period required for cure will not (i) subject
Landlord or any Superior Lessor or any Superior Mortgagee to prosecution for a
crime, (ii) subject the demised premises or any part thereof or the
Building or Land, or any part thereof, to being condemned or vacated,
(iii) subject the Building or Land, or any part thereof, to any lien or
encumbrance which is not removed or bonded within the time period required
under this Lease, or (iv) result in the termination of any Superior Lease
or foreclosure of any Superior Mortgage, Tenant shall not (A) within said
twenty (20) day period advise Landlord of Tenant’s intention to take all steps
reasonably necessary to remedy said default, (B) duly commence within said
twenty (20) day period, and thereafter diligently and in good faith prosecute
to completion all steps reasonably necessary to remedy said default as soon as
practicable and (C) complete such remedy within a reasonable time after
the date of said notice of Landlord, or


 


(c)           any event shall
occur or any contingency shall arise whereby this Lease or the estate hereby
granted or the unexpired balance of the term hereof would, by operation of law
or otherwise, devolve upon or pass to any person, firm or corporation other
than Tenant, except as expressly permitted by Article 15 hereof, and such
event shall not be cured within twenty (20) days of the Landlord has second
notice thereof on Tenant, or


 


(d)           Tenant shall abandon
the demised premises;


 


then Landlord may serve a written five (5) days’
notice of termination of this Lease upon Tenant, and, upon the expiration of
said five (5) days, this Lease and the term hereunder shall end and expire as
fully and completely as if the date of expiration of such five (5) day period
were the day herein definitely fixed for the end and expiration of this Lease
and the term hereof and Tenant shall then quit and surrender the demised
premises to Landlord but Tenant shall remain liable as hereinafter provided.


 


19.2.  If Tenant shall default in
the payment of any fixed annual rent or additional rent, and such default shall
continue for ten (10) days after written notice thereof has been given to
Tenant, or if this Lease shall terminate as provided in Section 19.1
hereof, Landlord or Landlord’s agents and employees may immediately or at any
time thereafter reenter the demised premises, or any part thereof, either by
summary dispossess proceedings or by any suitable action or proceeding at law,
without being liable to indictment, prosecution or damages therefor, and may
repossess the same, and may remove any person therefrom, to the end that
Landlord may have, hold and enjoy the demised premises.  The word “reenter,” as used herein, is not
restricted to its technical legal meaning. 
If this Lease is terminated under the provisions of Section 19.1
hereof, or if Landlord shall reenter the demised premises under the provisions
of this Section 19.2, or in the event of the termination of this Lease, or
of reentry, by or under any summary dispossess or other proceeding or action or
any provision of law by reason of default hereunder on the part of Tenant,
Tenant shall thereupon pay to Landlord the fixed annual


 


58





















 


rent and additional rent
payable up to the time of such termination of this Lease, or of such recovery
of possession of the demised premises by Landlord, as the case may be, and
shall also pay to Landlord damages as provided in Article 20 hereof.


 


19.3.  In the event of a breach
or threatened breach by Tenant of any of its obligations under this Lease,
Landlord shall also have the right of injunction.  The special remedies to which Landlord may
resort hereunder are cumulative and are not intended to be exclusive of any
other remedies to which Landlord may lawfully be entitled at any time and
Landlord may invoke any remedy allowed at law or in equity as if specific
remedies were not provided for herein. 
In the event of a breach or threatened breach by Landlord of any of its
obligations under this Lease, Tenant shall have the right of injunction.


 


19.4.  If this Lease shall
terminate under the provisions of Section 19.1 hereof, or if Landlord
shall reenter the demised premises under the provisions of Section 19.2
hereof, or in the event of the termination of this Lease, or of reentry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to retain all monies, if any, paid by Tenant to Landlord, whether as
advance rent, security or otherwise, but such monies shall be credited by
Landlord against any fixed annual rent or additional rent due from Tenant at
the time of such termination or reentry or, at Landlord’s option, against any
damages payable by Tenant under Article 20 hereof or pursuant to law.


 


ARTICLE 20


 


REMEDIES OF LANDLORD;
WAIVER OF REDEMPTION


 


20.1.  If this Lease is
terminated under the provisions of Article 19 hereof, or if Landlord shall
reenter the demised premises under the provisions of Article 19 hereof, or
in the event of the termination of this Lease, or of reentry, by or under any
summary dispossess or other proceeding or action or any provision of law by
reason of default hereunder on the part of Tenant, (a) the fixed annual
rent and additional rent shall become due thereupon and be paid up to the time
of such re-entry, dispossess and/or expiration, together with such expenses as
Landlord may incur for legal expenses, reasonable attorneys’ fees, brokerage,
and/or putting the demised premises in good order, or for preparing the same
for rental; (b) Landlord may re-let the demised premises or any part or
parts thereof, either in the name of Landlord or otherwise, for a term or
terms, which may at Landlord’s option be less than or exceed the period which
would otherwise have constituted the balance of the term of this Lease and may
grant concessions or free rent; and (c) Tenant shall also pay Landlord as
damages for the failure of Tenant to observe and perform said Tenant’s
obligations herein contained either:


 


(i)            a sum which, at the
time of such expiration or re-entry, or at the time Landlord ceases to collect
the amounts provided for in subsection (ii) below,


 


59





















 


as the case may be,
represents the then value (assuming a discount at a rate per annum equal to 2%
in excess of the interest rate then applicable to 10-year Federal Treasury
Bonds) of the excess of the aggregate of the fixed annual rent and additional
rent Under Articles 4 and 5 hereof (conclusively presuming the average monthly
additional rent under Articles 4 and 5 hereof to be the same as were payable
for the last 12 calendar months, or if less than 12 calendar months have then
elapsed since the Commencement Date, all of the calendar months immediately
preceding such termination or reentry) which would have been payable by Tenant
for the period commencing with such expiration or re-entry, as the case may be,
and ending on the scheduled expiration date of the term of this Lease, over the
aggregate fair market rental value of the demised premises for the same period
(which sum is sometimes herein called “the lump sum payment”);
or


 


(ii)           sums equal to any
deficiency between the rent hereby reserved and/or covenanted to be paid and
the net amount, if any, of the rents collected on account of the lease or
leases of the demised premises for each month of the period which would
otherwise have constituted the balance of the term of this Lease, payable in
monthly installments by Tenant on the rent days specified in this Lease and any
suit or proceeding brought to collect the amount of the deficiency for any
month shall not prejudice in any way the rights of Landlord to collect the
deficiency for any subsequent month by a similar suit or proceeding or to
thereafter initiate a proceeding to collect the lump sum payment.


 


In computing the damages payable under clause (i)
or clause (ii) of the immediately preceding sentence, there shall be added
to the lump sum payment or deficiency, as the case may be, such expenses as
Landlord may incur or pay in connection with terminating this Lease or re-entering
the demised premises and in securing possession thereof, including, without
limitation, reasonable attorneys’ fees and disbursements, brokerage, and for
keeping the demised premises in good order or for preparing the same for
re-letting.


 


In no event shall Tenant be entitled to receive the
excess, if any, of any rentals from re-letting over the sums payable by Tenant
to Landlord hereunder, nor shall Tenant be entitled in any suit for the
collection of damages pursuant to this Article 20 to a credit in respect
of rentals from re-letting except to the extent that such rentals are actually
received by Landlord.  No such re-letting
shall constitute or be deemed to constitute a surrender or the acceptance of a
surrender.  Landlord shall not be liable in
any way whatsoever for its failure to relet the demised premises or any part
thereof, or if the demised premises or any part thereof are relet, for its
failure to collect the rent under such reletting, and no such failure to relet
or failure to collect rent shall release or affect Tenant’s liability for
damages or otherwise under this Lease.


 


Landlord, at Landlord’s option, may make such
alterations, repairs, replacements and/or decorations in the demised premises
as Landlord, in Landlord’s sole


 


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judgment, considers advisable and necessary for the
purpose of re-letting the demised premises; and the making of such alterations
and/or decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid.


 


20.2.  Tenant hereby expressly
waives any and all rights of redemption granted by or under any present or
future laws in the event of Tenant being evicted or dispossessed for any cause,
or in the event of Landlord obtaining possession of the demised premises, by
reason of the violation by Tenant of any of the covenants and conditions of
this Lease or otherwise.


 


20.3.  If Tenant is in arrears in
payment of fixed annual rent or additional rent, Tenant waives Tenant’s right,
if any, to designate the items to which any payments made by Tenant are to be
credited, and Tenant agrees that Landlord may apply any payments made by Tenant
to such items as Landlord sees fit, irrespective of and notwithstanding any
designation or request by Tenant as to the items which any such payments shall
be credited.


 


20.4.  Suit or suits for the
recovery of such damages, or any installments thereof, may be brought by
Landlord from time to time at its election, and nothing contained herein shall
be deemed to require Landlord to postpone suit until the date when the term of
this Lease would have expired if it had not been so terminated under the
provisions of Article 19 hereof, or had Landlord not reentered the demised
premises.  Nothing herein contained shall
be construed to limit or preclude recovery by Landlord against Tenant of any
sums or damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default hereunder on
the part of Tenant.  Nothing herein
contained shall be construed to limit or prejudice the right of Landlord to
prove for and obtain as damages by reason of the termination of this Lease or
reentry on the demised premises for the default of Tenant under this Lease an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, such damages are to be
proved whether or not such amount be greater than any of the sums referred to
in Section 20.1 hereof.


 


20.5.  In addition, if this Lease
is terminated under the provisions of Article 19 hereof, or if Landlord
shall, reenter the demised premises under the provisions of Article 19
hereof, Tenant agrees that:


 


(a)           the demised premises
then shall be in the condition in which Tenant has agreed to surrender the same
to Landlord at the expiration of the term hereof;


 


(b)           Tenant shall have
performed prior to any such termination any covenant of Tenant contained in
this Lease for the making of any Alterations or for restoring or rebuilding the
demised premises or the Building, or any part thereof; and


 


(c)           for the breach of
any covenant of Tenant set forth above in this Section 20.4, Landlord
shall be entitled immediately, without notice or other action by


 


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Landlord, to recover, and
Tenant shall pay, as and for liquidated damages therefor, the actual
out-of-pocket cost paid by Landlord to perform such covenant.


 


20.6.  In addition to any other
remedies Landlord may have under this Lease, and without reducing or adversely
affecting any of Landlord’s rights and remedies under Article 19 hereof,
if any fixed annual rent, additional rent or damages payable hereunder by
Tenant to Landlord are not paid within five (5) days after the due date
thereof, the same shall bear interest at the prime rate of Citibank, N.A. plus
2% per annum or the maximum rate permitted by law, whichever is less, from the
due date thereof until paid, and the amount of such interest shall be
additional rent hereunder.


 


20.7.  Mention in this Lease of
any particular remedy shall not preclude Landlord or Tenant from any other
remedy, in law or in equity.


 


ARTICLE 21


 


CURING TENANT’S DEFAULTS;
FEES AND EXPENSES


 


21.1.  If Tenant shall default in
the observance or performance of any term or covenant on Tenant’s part to be
observed or performed under or by virtue of any of the terms or provisions
under this Lease, Landlord, without thereby waiving such default, may (but
shall not be obligated to) perform the same for the account and at the expense
of Tenant, immediately and without notice in case of emergency, or in any other
case only provided that Tenant shall fail to remedy such default after Landlord
shall have notified Tenant in writing of such default and the applicable grace
period, if any, for curing such default shall have expired.


 


21.2.  Bills for any expenses
incurred by Landlord in connection with any such performance by it for the
account of Tenant, and bills for all costs, expenses and disbursements of every
kind and nature whatsoever, including reasonable counsel fees, involved in
collecting or endeavoring to collect the fixed annual rent or additional rent
or any part thereof or enforcing or endeavoring to enforce any rights against
Tenant or Tenant’s obligations hereunder, under or in connection with this
Lease or pursuant to law, including any such cost, expense and disbursement
involved in instituting and prosecuting summary proceedings or in recovering
possession of the demised premises after default by Tenant or upon the
expiration or sooner termination of this Lease, and interest on all sums
advanced by Landlord under this Section 21.2 and/or Section 21.1
hereof (at the Interest Rate or the maximum rate permitted by law, whichever is
less) may be sent by Landlord to Tenant monthly, or immediately, at its option,
and such amounts shall be due and payable as additional rent within thirty (30)
days after Tenant’s receipt of such bills.


 


21.3.  Tenant shall be entitled
to reimbursement for reasonable counsel fees and disbursements in the event
that it is successful in a judicial action to (i) enforce


 


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any rights against
Landlord or Landlord’s obligations hereunder or pursuant to law or (ii) defend
any judicial action by Landlord.


 


ARTICLE 22


 


NO REPRESENTATIONS BY
LANDLORD


 


22.1.  Tenant expressly
acknowledges and agrees that Landlord has not made and is not making, and
Tenant, in executing and delivering this Lease, is not relying upon, any
warranties, representations, promises or statements, except to the extent that
the same are expressly set forth in this Lease or in any other written
agreement which may be made between the parties concurrently with the execution
and delivery of this Lease and shall expressly refer to this Lease.  All understandings and agreements heretofore
had between the parties are merged in this Lease and any other written
agreement(s) made concurrently herewith, which alone fully and completely
express the agreement of the parties and which are entered into after full
investigation, neither party relying upon any statement or representation not
embodied in this Lease or any other written agreement(s) made concurrently
herewith.


 


ARTICLE 23


 


END OF TERM


 


23.1.  Upon the expiration or
other termination of the term of this Lease, or upon any re-entry by Landlord
upon the demised premises, Tenant shall quit and surrender to Landlord the
demised premises, broom clean, in good order and condition and repair, ordinary
wear and tear and damage by fire, the elements or other casualty and
condemnation excepted, and Tenant shall remove all of its property as herein
provided.  Tenant’s obligation to observe
or perform this covenant shall survive the expiration or other termination of
the term of this Lease.


 


23.2.  No act or thing done by
Landlord or its agents shall be deemed an acceptance of a surrender of the
demised premises, and no agreement to accept such surrender shall be valid
unless in writing and signed by Landlord.


 


23.3.  (a)  In the event this Lease is not renewed or
extended or a new lease is not entered into between the parties, and if Tenant
shall then hold over after the expiration or early termination of the term of
this Lease, and if Landlord shall then not proceed to remove Tenant from the
demised premises in the manner permitted by law (or shall not have given
written notice to Tenant that Tenant must vacate the demised premises)
irrespective of whether or not Landlord accepts rent from Tenant for a period
beyond the Expiration Date, the parties hereby agree that Tenant’s occupancy of
the demised premises after the expiration of the term shall be under a
month-to-month tenancy commencing on the first day after the expiration or
early termination of the term, which tenancy shall be upon all of the terms set
forth in this Lease except Tenant shall


 


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pay on the first day of
each month of the holdover period as fixed annual rent, an amount equal to two
times one-twelfth of the fixed annual rent and additional rent payable by
Tenant during the twelve (12) months preceding the expiration of the term of
this Lease (annualized in the case of an early termination occurring less than
12 months after the Commencement Date and, in any event, without giving effect
to any abatement or offset against such rents). 
It is further stipulated and agreed that if Landlord shall, at any time
after the expiration of the original term or after the expiration of any term
created thereafter, proceed to remove Tenant from the demised premises as a
holdover, the fixed annual rent for the use and occupancy of the demised
premises during any holdover period shall be calculated in the same manner as
set forth above.  In addition to the
foregoing, Landlord shall be entitled to recover from Tenant any losses or
damages arising from such holdover as provided in Section 23.3(c) hereof.


 


(b)           Notwithstanding
anything to the contrary contained in this Lease, the acceptance of any rent
paid by Tenant pursuant to Section 23.3(a) hereof shall not preclude
Landlord from commencing and prosecuting a holdover or summary eviction
proceeding, and the preceding sentence shall be deemed to be an “agreement
expressly providing otherwise” within the meaning of Section 223-c of the
Real Property Law of the State of New York.


 


(c)           If Tenant shall
hold-over or remain in possession of any portion of the demised premises beyond
sixty (60) days after the Expiration Date, Tenant shall be subject not only to
summary proceeding and all damages related thereto, but also to any damages
arising out of any lost opportunities (and/or new leases) by Landlord to re-let
the demised premises (or any part thereof). 
All damages to Landlord by reason of such holding over by Tenant may be
the subject of a separate action and need not be asserted by Landlord in any
summary proceedings against Tenant.


 


ARTICLE 24


 


QUIET ENJOYMENT


 


24.1.  Landlord covenants and
agrees that subject to the terms and provisions of this Lease and to Superior
Leases and Superior Mortgages, if, and so long as, Tenant keeps and performs
each and every covenant, agreement, term, provision and condition herein
contained on the part or on behalf of Tenant to be kept or performed, then
Tenant’s rights under this Lease shall not be cut off or ended before the
expiration of the term of this Lease. 
This covenant shall be construed as a covenant running with the Land,
and is not, nor shall it be construed as, a personal covenant of Landlord,
except to the extent of Landlord’s interest in the building project and only so
long as such interest shall continue, and thereafter Landlord shall be relieved
of all liability hereunder thereafter arising and this covenant shall be
binding only upon subsequent successors in interest of Landlord’s interest in
this Lease, to the extent of their respective interests, as and when they shall
acquire the same, and so long as they shall retain such interest.


 


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ARTICLE 25


 


DEFINITIONS


 


25.1.  For the purposes of this
Lease, the following terms have the meanings indicated:


 


(a)           The term “and/or” when applied to one or more
matters or things shall be construed to apply to any one or more or all thereof
as the circumstances warrant at the time in question.


 


(b)           The term “business days” as used in this Lease
shall exclude Saturdays, Sundays and all days observed by the Federal, State or
local government as legal holidays as well as all other days recognized as
holidays under applicable union contracts. 
Such holidays currently are: New Years Day, Martin Luther King Day,
Presidents’ Day, Good Friday, Memorial Day, Independence Day, Labor Day,
Columbus Day, Thanksgiving Day, Day after Thanksgiving, Christmas Day.


 


(c)           The terms “herein “hereof  and “hereunder,”
and words of similar import, shall be construed to refer to this Lease as a
whole, and not to any particular article or section, unless expressly so
stated.


 


(d)           The term “CPI” shall mean the Consumer Price
Index for All Urban Consumers (“CPI-AUC”), New York, New York-Northeastern New
Jersey, All Items (1982-1984=100), issued and published by the Bureau of Labor
Statistics of the United States Department of Labor.  In the event that CPI-AUC ceases to use a
1982-84 base rate of 100 as the basis of calculation, then the CPI-AUC shall be
adjusted to the figure that would have been arrived at had the manner of
computing the CPI-AUC in effect at the date of this Lease not been
altered.  If CPI-AUC is not available or
may not lawfully be used for the purposes herein stated, the term “Consumer
Price Index” shall mean (i) a successor or substitute index to CPI-AUC,
appropriately adjusted; or (ii) if such a successor or substitute index is
not available or may not lawfully be used for the purposes herein stated, a
reliable governmental or other non-partisan publication, selected by Tenant and
approved by Landlord (which approval shall not be unreasonably withheld or
delayed), evaluating the information theretofore used in determining CPI-AUC.


 


(e)           The term “Interest Rate,” when used in this
Lease, shall mean an interest rate equal to two percent (2%) above the
so-called annual “Base Rate“
of interest established and approved by Citibank, N.A., New York, New York, or
its successor, from time to time, as its interest rate charged for unsecured
loans to its corporate customers, but in no event greater than the highest
lawful rate from time to time in effect.


 


(f)            The term “Landlord“ as used in this Lease means
only the owner, or the mortgagee in possession, for the time being of the Land
and Building (or the owner of a lease of the Building or of the Land and
Building), so that in the event of any transfer


 


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of title to the Land and
Building or said lease, or in the event of a lease of the Building, or of the
Land and Building, upon notification to Tenant of such transfer or lease the
said transferor Landlord shall be and hereby is entirely freed and relieved of
all future covenants, obligations and liabilities of Landlord hereunder, and it
shall be deemed and construed as a covenant running with the land without
further agreement between the parties or their successors in interest, or
between the parties and the transferee of title to the Land and Building or
said lease, or the said lessee of the Building, or of the Land and Building,
that the transferee or the lessee has assumed and agreed to carry out any and
all such covenants, obligations and liabilities of Landlord hereunder.


 


(g)           The terms “Landlord shall have no liability to Tenant”
or “the same shall be without liability to Landlord”
or “without incurring any liability to Tenant therefor”
or words of similar import shall mean that Tenant is not entitled to terminate
this Lease, or to claim actual or constructive eviction, partial, or total, or
to receive any abatement or diminution of rent, or to be relieved in any manner
of any of its other obligations hereunder, or to be compensated for loss or
injury suffered or to enforce any other right or kind of liability whatsoever
against Landlord under or with respect to this Lease or with respect to Tenant’s
use or occupancy of the demised premises.


 


(h)           The term “laws and requirements of any public authorities” and words of a similar import shall mean laws and
ordinances of any or all of the federal, state, city, town, county, borough and
village governments including, without limitation, The Americans with
Disabilities Act of 1990, as amended, and rules, regulations, orders and
directives of any and all departments, subdivisions, bureaus, agencies or
offices thereof, and of any other governmental, public or quasi-public
authorities having jurisdiction over the Building and/or the demised premises,
and the direction of any public officer pursuant to law, whether now or
hereafter in force.


 


(i)            The term “Legal Requirements“ and words of a
similar import shall mean laws and ordinances of any or all of the federal,
state, city, town, county, borough and village governments and rules,
regulations, orders and directives of any and all departments, subdivisions,
bureaus, agencies or offices thereof, and of any other governmental, public or
quasi-public authorities having jurisdiction over the Building and/or the
demised premises, and the direction of any public officer pursuant to law,
whether now or hereafter in force.


 


(j)            The term “mortgage” shall include a mortgage
and/or a deed of trust, and the term “holder of a mortgage”
or “mortgagee” or words of similar
import shall include a mortgagee of a mortgage or a beneficiary of a deed of
trust.


 


(k)           The term “person” shall mean any natural
person or persons, a partnership, a corporation, and any other form of business
or legal association or entity.


 


(l)            The term “requirements of insurance bodies” and
words of similar import shall mean rules, regulations, orders and other
requirements of the New


 


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York Board of
Underwriters and/or the New York Fire Insurance Rating Organization and/or any
other similar body performing the same or similar functions and having
jurisdiction or cognizance over the Building and/or the demised premises,
whether now or hereafter in force.


 


(m)          The term “Tenant“ shall mean the tenant herein
named or any assignee or other successor in interest (immediate or remote) of
the tenant herein named, which at the time in question is the owner of the Tenant’s
estate and interest granted by this Lease; but the foregoing provisions of this
subsection shall not be construed to permit any assignment of this Lease
or to relieve the tenant herein named or any assignee or other successor in
interest (whether immediate or remote) of the tenant herein named from the full
and prompt payment, performance and observance of the covenants, obligations
and conditions to be paid, performed and observed by Tenant under this Lease.


 


ARTICLE 26


 


ADJACENT EXCAVATION —
SHORING


 


26.1.  If an excavation or other
substructure work shall be made upon land adjacent to the demised premises, or
shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the demised premises
for the purpose of doing such work as shall be necessary to preserve the wall
of or the Building of which the demised premises form a part from injury or
damage and to support the same by proper foundations without any claim for
damages or indemnity against Landlord, or diminution or abatement of rent.


 


ARTICLE 27


 


RULES AND REGULATIONS


 


27.1.  Tenant and Tenant’s
servants, employees and agents shall observe faithfully and comply strictly
with the Rules and Regulations set forth in Exhibit E attached hereto and made part hereof entitled “Rules and Regulations“ and such
other and further reasonable rules and regulations as Landlord or Landlord’s
agents may from time to time adopt; provided, however, that in case of any
conflict or inconsistency between the provisions of this Lease and of any of
the Rules and Regulations as originally or as hereafter adopted, the provisions
of this Lease shall control.  Reasonable
written notice of any additional rules and regulations shall be given to
Tenant.  Landlord shall not enforce the
Rules and Regulations in a manner discriminatory to Tenant.


 


Nothing in this Lease contained shall be construed to
impose upon Landlord any duty or obligation to enforce the Rules and
Regulations or the terms, covenants or conditions in any other lease, against
any other tenant of the Building, and Landlord shall not be liable to Tenant
for violation of the same by any other tenant, its


 


67





















 


servants, employees, agents, visitors or licensees.  Landlord agrees not to enforce any Rules and
Regulations in a manner discriminatory to Tenant.


 


Landlord shall not unreasonably withhold from Tenant
any approval provided for in the rules and regulations and shall exercise its
judgment in good faith.


 


ARTICLE 28


 


NO WAIVER


 


28.1.  No agreement to accept a
surrender of this Lease shall be valid unless in writing signed by
Landlord.  No employee of Landlord or of
Landlord’s agents shall have any power to accept the keys of the demised
premises prior to the termination of this Lease.  The delivery of keys to any employee of
Landlord or of Landlord’s agent shall not operate as a termination of this
Lease or a surrender of the demised premises. 
In the event of Tenant at any time desiring to have Landlord sublet the
demised premises for Tenant’s account, Landlord or Landlord’s agents are
authorized to receive said keys for such purpose without releasing Tenant from
any of the obligations under this Lease. 
The failure of Landlord 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 set forth herein, or hereafter adopted by
Landlord, shall not prevent a subsequent act, which would have originally
constituted a violation, from having all the force and effect of any original
violation.  The receipt by Landlord, or
payment by Tenant, of rent with knowledge of the breach of any covenant of this
Lease shall not be deemed a waiver of such breach.  The failure of Landlord to enforce any of the
Rules and Regulations set forth herein, or hereafter adopted, against Tenant
and/or any other tenant in the Building shall not be deemed a waiver of any
such Rules and Regulations.  No provision
of this Lease shall be deemed to have been waived by Landlord, unless such
waiver be in writing signed by Landlord. 
No payment by Tenant or receipt by Landlord of a lesser amount than the
monthly rent herein stipulated shall be deemed to be other than on the account
of the earliest stipulated rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment of rent 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 rent or pursue any
other remedy in this Lease provided.


 


28.2.  This Lease contains the
entire agreement between the parties, and any executory agreement hereafter
made shall be ineffective to change, modify, discharge or effect an abandonment
of it in whole or in part unless such executory agreement is in writing and
signed by the party against whom enforcement of the change, modification,
discharge or abandonment is sought.


 


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ARTICLE 29


 


WAIVER OF TRIAL BY JURY


 


29.1.  Landlord and Tenant do
hereby waive trial by jury in any action, proceeding or counterclaim brought by
either of the parties hereto against the other on any matters whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant, Tenant’s use or occupancy of the demised premises, and/or
any other claims (except claims for personal injury or property damage), and
any emergency statutory or any other statutory remedy.  It is further mutually agreed that if
Landlord commences any summary proceeding to recover rent or recover possession
of the demised premises, Tenant will not interpose and does hereby waive the
right to interpose any counterclaim of whatever nature or description in any
such proceeding (other than compulsory counterclaims).  The provisions of this Article 29 shall
survive any expiration or sooner termination of this Lease.


 


ARTICLE 30


 


INABILITY TO PERFORM


 


30.1.  If, by reason of
(a) strike, (b) labor troubles, (c) governmental pre-emption in
connection with a national emergency, (d) any rule, order or regulation of
any governmental agency, (e) conditions of supply or demand which are
affected by war or other national, state or municipal emergency, or (f) any
cause beyond Landlord’s reasonable control (the foregoing circumstances
described in this Section 30.1 being herein called “Force Majeure Causes“), Landlord shall
be unable to fulfill, or is delayed in fulfilling, any of its obligations under
this Lease or shall be unable to supply any service which Landlord is obligated
to supply, this Lease and Tenant’s obligations hereunder, including, without
limitation, the payment of rent hereunder, shall in no wise be affected,
impaired or excused nor shall Landlord have any liability whatever to Tenant,
nor shall the same be deemed constructive eviction.


 


ARTICLE 31


 


NOTICES


 


31.1.  Any notice, statement,
demand, consent, approval or other communication required or permitted to be
given, rendered or made by either party to this Lease or pursuant to any
applicable law or requirement of public authority (collectively, “notices”) shall be in writing
(whether or not so stated elsewhere in this Lease) and shall be deemed to have
been properly given, rendered or made only if sent by (a) registered or
certified mail, return receipt requested, posted in a United States post office
station or letter box in the continental United States, (b) nationally
recognized overnight courier (e.g., Federal Express) with verification of
delivery requested or (c) personal delivery with verification of delivery
requested, in any of such cases addressed as follows:


 


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If to Landlord:


 


c/o
Fisher Brothers

299 Park Avenue

New York, New York  10171

Attention:  Mr. Kenneth Fisher, Partner


 


with copies to:


 


c/o
Fisher Brothers

299 Park Avenue

New York, New York  10171

Attention:  Jonathan W. Knipe, Esq.


 


and


 


Paul,
Hastings, Janofsky & Walker LLP

75 East 55th Street

New York, New York  10022

Attention:  Martin L. Edelman, Esq.


 


and if
to Tenant, before Tenant takes occupancy of the demised premises for the
conduct of its business, to the address at the head of this Lease and
thereafter as follows:


 


General
Maritime Corporation

299 Park Avenue

New York, New York 10171

Attention:  Mr. E. Nikolas Tavlarios


 


with a copy to:


 


Kramer
Levin Naftalis & Frankel LLP

919 Third Avenue

New York, New York  10022

Attention:  Thomas E. Constance, Esq.


 


(except that after the Commencement Date, Tenant’s
address, unless Tenant shall give notice to the contrary, shall be the
Building), and shall be deemed to have been given, rendered or made (i) if
mailed, on the third business day following the day so mailed, unless mailed to
a location outside of the State of New York, in which case it shall be deemed
to have been given, rendered or made on the fifth business day after the day so
mailed, (ii) if sent by nationally recognized overnight courier, on the
first business day following the day sent or (iii) if sent by personal
delivery, when delivered and receipted by the party to whom addressed (or on
the date that such receipt is refused, if applicable).


 


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Either party may, by notice as aforesaid, designate a different address
or addresses for notices intended for it. 
Notwithstanding the foregoing, with respect to an occurrence presenting
imminent danger to the health or safety of persons or damage to property in, on
or about the Building, notices may be hand delivered to Tenant at the demised
premises or Landlord at the Building, provided that the same notice is also
sent in the manner set forth above.


 


31.2.  Notices hereunder from
Landlord may be given by Landlord’s managing agent, if one exists, or by
Landlord’s attorney, if in each instance, Landlord has given Tenant notice of
the authority of such agent or attorney. 
Notices hereunder from Tenant may be given by Tenant’s attorney.


 


31.3.  In addition to the
foregoing, either Landlord or Tenant may, from time to time, request in writing
that the other party serve a copy of any notice on one other person or entity
designated in such request, such service to be effected as provided in Section 31.1
or 31.2 hereof.


 


31.4.  Notwithstanding anything
to the contrary contained in this Lease, a rent bill or a bill for services
rendered by the cleaning contractor for the Building, in either case sent to
Tenant by first class mail to the first address to which notices are to be
given to Tenant as set forth in Section 31.1 above, shall be deemed a
proper demand for the payment of the amounts set forth therein (but nothing
contained herein shall be deemed to require Landlord to send any rent bill or
otherwise make any demand for the payment of rent except in those cases, if
any, explicitly provided for in this Lease).


 


ARTICLE 32


 


SERVICES


 


32.1.  Throughout the term of
this Lease, Landlord shall provide the following services to the demised
premises in the manner hereinafter more particularly set forth:  (a) heat, ventilation and air
conditioning; (b) elevator service; (c) domestic hot and cold water;
and (d) cleaning.


 


32.2.  (a)  Landlord shall, through the air conditioning
system of the Building, furnish air conditioning, ventilation and heating (“HVAC“) to the demised premises, on
an all-year-round basis, during the hours from 8:00 A.M. to 6:00 P.M. on
business days (herein called “business hours”).  The peripheral and interior HVAC systems will
be automatically controlled to achieve a design standard providing (a) air
conditioning at a dry bulb temperature of 78 degrees Fahrenheit when the
outdoor dry bulb temperature is 95 degrees Fahrenheit, and the outdoor wet bulb
is 75 degrees Fahrenheit, (b) heat at 70 degrees Fahrenheit in zero
degrees Fahrenheit weather and (c) proper ventilation for the interior
spaces at all seasons of the year.  This
specification is predicated on occupancy of one person per 100 usable square
feet and appropriate use of window blinds.


 


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(b)           Tenant agrees to
keep and cause to be kept closed all the doors to the demised premises at all
times, and Tenant agrees to abide by all the regulations and requirements which
Landlord may reasonably prescribe for the proper functioning and protection of
said air conditioning systems.


 


(c)           Tenant acknowledges
it has been advised that the Building has sealed windows and that, therefore,
the air in the demised premises can become stale and even unbreatheable when
the ventilating, air-conditioning, and heating system is not operating.  Tenant agrees that Landlord shall not be
obligated to operate such ventilating, air-conditioning, and heating system
after or before business hours, except after prior written notice from Tenant
as hereinafter specified.  Tenant agrees
that Landlord’s failure to operate such system in the absence of such notice
shall not be deemed a partial or other eviction, or disturbance of Tenant’s
use, enjoyment, or possession of the demised premises, and shall not render
Landlord liable for damages, by abatement of rent or otherwise, and Tenant
shall not be relieved from any obligation under this Lease.


 


(d)           Landlord will upon
reasonable advance notice provide Tenant with ventilation, air conditioning, or
heating at times other than business hours at Landlord’s then established rates
for such after hours service, payable by Tenant as additional rent when billed.  Landlord’s established rate is currently $1,228.44
per hour.  In the event more than one
tenant has requested after hours service, said charges shall be pro rated.


 


(e)           Landlord shall
provide Tenant with, and Tenant agrees to purchase from Landlord, up to twenty
(20) tons of condenser water for the supplemental air conditioning needs of
Tenant at the current rates of $800.00 per ton per annum (which charge for condenser
water shall be increased or decreased (but not below $800) annually commencing
with calendar year 2005, determined by multiplying the charge for the
immediately prior calendar year by the percentage increase in the CPI for the
month of December preceding the current calendar year over the CPI for the
month of December preceding the immediately preceding calendar year).  If Tenant’s actual supplemental heating,
ventilation and air conditioning needs call for less than twenty (20) tons of
condenser water, Landlord shall reserve for Tenant the remainder of such twenty
(20) tons of condenser water until the date that is sixty (60) days following
the date on which Tenant takes occupancy of all or any portion of the demised
premises for the conduct of its business. 
Tenant shall commence payment for the condenser water for the demised
premises from and after such time as Tenant first uses the condenser
water.  Tenant shall not be responsible
for the cost and expense of “tap-in” charges for the installation of a
supplemental air conditioning system.


 


32.3.  Subject to Section 3.4,
Landlord shall provide necessary elevator facilities, including reasonable
freight elevator service and loading dock facilities, during business hours and
shall have sufficient passenger elevators available at all other times.  Landlord will provide Tenant with after-hours
freight elevator service and loading dock facilities at Landlord’s then
established rates in the Building for same and pursuant to


 


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Landlord’s Rules and Regulations. 
Landlord’s established rates are currently $98.35 per hour plus $65 per
hour for loading dock security.


 


32.4.  Landlord will supply
Tenant at Landlord’s expense with an adequate quantity of hot and cold water
for ordinary lavatory, drinking and cleaning purposes and for a single shower.  Should Tenant require or consume water for
any additional purpose, Tenant shall pay Landlord a reasonable charge therefor
and for any required pumping or heating thereof, as well as any taxes, sewer
rents or other charges which may be imposed by any governmental authority based
on the quantity of water so used by Tenant. 
Landlord may elect to install a water meter, at Tenant’s expense and
thereby measure Tenant’s water consumption for all such material additional
purposes, said meter to be maintained at Tenant’s expense.


 


32.5.  Landlord agrees to cause
the demised premises to be cleaned on business days as set forth in Exhibit F
annexed hereof.  Landlord shall have no
obligation to perform cleaning services in those portions of the demised
premises which are below grade, bank space, or which are used for the
preparation, dispensing or consumption of food or beverages, for use as
training rooms, trading rooms/floors, for files, storage, mailing or shipping
purposes, for the operation of computer, telex, data processing, reproduction
or similar equipment or as private lavatories or toilets or other special
purposes requiring greater or more difficult cleaning work than office areas,
all of which portions Tenant shall cause to be kept clean at Tenant’s cost and
expense.  Tenant shall pay to Landlord,
on demand, a reasonable charge for the removal from the demised premises of any
refuse and rubbish of Tenant as shall not be contained in waste receptacles of
customary office size and for the removal of refuse and rubbish of Tenant’s
machines and of eating facilities requiring special handling (known as wet
garbage).  Landlord, its cleaning
contractor and their employees shall have access to the demised premises after
business hours and the use of Tenant’s light, power and water in the demised
premises, without charge therefor, as may be reasonably required for the
purpose of cleaning the demised premises, and shall turn off all such utilities
when the cleaning is completed.


 


32.6.  If Tenant is permitted
hereunder to and does have a separate area for the preparation or consumption
of food in the demised premises,


 


32.7.  Tenant has been advised by
Landlord that the cleaning contractor for the Building is an entity under
common control with Landlord and Tenant agrees to employ said contractor or
such other contractor as Landlord may from time to time reasonably designate
for all waxing, shampooing, polishing, lamp replacement and other special
cleaning or maintenance work of the demised premises and of Tenant’s furniture,
fixtures and equipment.  Landlord
represents that the cost and quality thereof shall be reasonably comparable to
that of other contractors doing comparable work in comparable buildings in the
area of the Building.  Tenant shall not
employ any other such contractor or individual without Landlord’s prior written
consent, but nothing herein contained shall


 


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prohibit
Tenant from utilizing a limited number of “on staff” day porters hired directly
by Tenant to perform special cleaning of a nature not provided by the employees
of Landlord’s designated cleaning contractor in the Building, but only for so
long as the employment by Tenant of such day porters does not result in
jurisdictional disputes or strikes.


 


32.8.  Subject to the provisions
of Articles 13 and 14 hereof, Landlord reserves the right, without liability to
Tenant and without it being deemed a constructive eviction, to stop or
interrupt any heating, elevator, escalator, lighting, ventilating,
air-conditioning, steam, power, electricity, water, cleaning or other service
and to stop or interrupt the use of any Building facilities and systems at such
times as may be necessary and for as long as may reasonably be required by
reason of accidents, strikes, or the making of repairs, alterations or
improvements,  or inability to secure a
proper supply of fuel, gas, steam, water, electricity, labor or supplies, or by
reason of any other similar or dissimilar cause beyond the reasonable control
of Landlord.  Subject to the provisions
of Articles 13 and 14 hereof, no such stoppage or interruption shall result in
any liability from Landlord to Tenant or entitle Tenant to any diminution or abatement
of rent or other compensation nor shall this Lease or any of the obligations of
Tenant be affected or reduced by reason of any such stoppage or
interruption.  Except in emergency
circumstances, Landlord shall give Tenant reasonable prior notice (which notice
need not be in writing) of its intention to make any repairs, alterations or
improvements referred to in this Section 32.10 or any other stoppages of
services of which Landlord has prior notice and shall use reasonable efforts in
making such repairs, alterations or improvements and in dealing with such other
stoppages of service so as to minimize interference with Tenant’s business
operations, provided that Landlord shall not be required to perform any such
work on an overtime or premium-pay basis. 
Notwithstanding the foregoing provisions of this Section 32.8, if
the demised premises is rendered untenantable, in whole or in part, for a
period of three (3) or more consecutive business days as a result of any
interruption of services or work performed by Landlord, then, unless caused by
the default or negligence of Tenant, its agents or employees, the fixed annual
rent and Additional Rent applicable to the demised premises or the part thereof
so rendered untenantable shall abate commencing on the fourth (4th) business
day that the demised premises or part thereof are untenantable, for such period
as the demised premises or part thereof shall remain untenantable or until
Tenant shall occupy such portion of the demised premises for the substantially normal
conduct of its business, regardless of any delay by Tenant in resuming the
operation of its business, whichever is earlier; provided, however, that if the
demised premises are rendered untenantable as a result of Force Majeure Causes
which are not insured against under Landlord’s insurance policies for the
Building, then, in such event, (a) the provisions of this sentence shall
apply if and only if such untenantability shall be for a period of ten (10) or
more consecutive business days and (b) the fixed annual rent and
Additional Rent applicable to the demised premises or the part thereof so
rendered untenantable shall abate subject to and in accordance with this Section 32.8
commencing on the eleventh (11th) business day of such untenantability.  As used in this Section 32.8, the term “untenantable”
shall mean


 


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the
extent to which Tenant is actually unable to, and actually does not, use any or
all of the demised premises (other than a de minimis portion
thereof) for the substantially normal conduct of its business.  Notwithstanding the penultimate sentence
above, if Landlord’s rent insurance does not insure such untenantability from
the fourth (4th) business day, then rent shall not abate until the eighth (8th)
business day after seven (7) consecutive business days of untenantability.


 


32.9.  It is expressly agreed
that providers reasonably approved by Landlord shall be permitted to
furnish:  laundry, linen, towels,
drinking water, ice and other similar supplies and services to tenants and
licensees in the Building. Landlord may fix, in its own absolute discretion, at
any time and from time to time, the hours during which and regulations under
which such supplies and services are to be furnished.


 


32.10.  In the event that
Landlord reasonably objects to the use by Tenant of a specific provider of food
or beverages for consumption within the demised premises or elsewhere in the
Building, Tenant shall discontinue using such provider.


 


32.11.  Tenant shall not clean,
nor require, permit, suffer or allow any windows in the demised premises to be
cleaned, from the outside in violation of Section 202 of the Labor Law, or
any other applicable law.


 


32.12.  Landlord shall operate
and maintain the Building Class E system, communications system, sprinkler
system and provide a concierge.  Except
as otherwise expressly provided in this Article, Landlord shall not be required
to provide any services to the demised premises.  Landlord shall operate the Building as a class
A building comparable to other class A Park Avenue buildings.


 


32.13.  In addition to any
remedies which Landlord may have under this Lease, and without reducing or
adversely affecting any of Landlord’s rights and remedies contained elsewhere
in this Lease, if there shall be a default hereunder by Tenant which shall not
have been remedied within the applicable grace period, Landlord shall not be
obligated to furnish to Tenant or the demised premises any services outside of
business hours on business days; and the discontinuance of any one or more such
services shall be without liability by Landlord to Tenant and shall not reduce,
diminish or otherwise affect any of Tenant’s covenants and obligations under
this Lease.


 


32.14.  If and for so long as
Landlord maintains a Building directory, Landlord, at Tenant’s request, shall
maintain listings on a Building directory of the names of Tenant, or its
permitted subtenants, assignees or affiliates and the names of any of their
officers and employees, provided that the names so listed shall not use more
than The Percentage of the space on the Building directory.  The actual cost to Landlord for making any
changes in such listings requested by Tenant shall be paid by Tenant to
Landlord within thirty (30) days after delivery of an invoice therefor.


 


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ARTICLE 33


 


ARBITRATION


 


33.1.  In each case specified in
this Lease in which resort to arbitration shall be required, such arbitration
(unless otherwise specifically provided in other Sections of this Lease) shall
be in New York City in accordance with the Commercial Arbitration Rules of the
AAA and the provisions of this Lease, and judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof.


 


ARTICLE 34


 


CONSENTS AND APPROVALS


 


34.1.  Wherever in this Lease
Landlord’s consent or approval is required, if Landlord shall delay or refuse
such consent or approval, Tenant in no event shall be entitled to make, nor
shall Tenant make, any claim, and Tenant hereby waives any claim, for money
damages (nor shall Tenant claim any money damages by way of set-off,
counterclaim or defense) based upon any claim or assertion by Tenant that
Landlord unreasonably withheld or unreasonably delayed its consent or
approval.  Tenant’s sole remedy shall be
an action or proceeding to enforce any such provision, for specific
performance, injunction or declaratory judgment, or to commence an arbitration
pursuant to the Expedited Procedures provisions of the Commercial Arbitration
Rules of the American Arbitration Association (presently Rules 53 through 57);
provided, however, that with respect to any such arbitration, (i) the list
of arbitrators referred to in Rule 54 shall be returned within five (5) business
days from the date of mailing, (ii) the parties shall notify the American
Arbitration Association, by telephone, within four (4) days of any objections
to the arbitrator appointed and will have no right to object if the arbitrator
so appointed was on the list submitted by the American Arbitration Association
and was not objected to in accordance with the second sentence of Rule 54, (iii) the
Notice of Hearing referred to in Rule 55 shall be four (4) days in advance of
the hearing, (iv) the hearing shall be held within seven (7) days after
the appointment of the arbitrator, and (v) the arbitrator shall have no
right to award damages.  Judgment upon
any decision rendered in any arbitration held pursuant to this Article 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 Article, including the expenses and fees of any
arbitrator selected by it in accordance with the provisions of this Article,
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.


 


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ARTICLE 35


 


INDEMNITY


 


35.1.  Tenant shall indemnify and
hold harmless Landlord and all Superior Lessors and Superior Mortgagees and its
and their respective partners, directors, officers, principals, shareholders,
agents and employees from and against any and all claims arising from or in
connection with (a) the conduct or management of the demised premises or
of any business therein, or any work or thing whatsoever done, or any condition
created (other than by Landlord, its agents, or employees) in or about the
demised premises during the term of this Lease; (b) any negligence of
Tenant or any of its subtenants or licensees or its or their partners,
directors, principals, shareholders, officers, agents, employees or
contractors; and (c) any accident, injury or damage whatever (except to
the extent caused by Landlord’s negligence or willful misconduct or the
negligence or willful misconduct of Landlord’s agents, employees, or
contractors) occurring in, at or upon the demised premises during the Term;
together with all reasonable costs, expenses and liabilities incurred in or in
connection with each such claim or action or proceeding brought thereon,
including, without limitation, all reasonable attorneys’ fees and
expenses.  In case any action or
proceeding be brought against Landlord and/or any Superior Lessor or Superior
Mortgagee and/or its or their partners, directors, officers, principals,
shareholders, agents and/or employees by reason of any such claim, Tenant, upon
notice from Landlord or such Superior Lessor or Superior Mortgagee, shall
resist and defend such action or proceeding (by counsel reasonably satisfactory
to Landlord or such Superior Lessor or Superior Mortgagee).  The rights and obligations of Landlord and
Tenant contained in this Article 35 shall survive the expiration or early
termination of this Lease.


 


35.2.  Landlord shall indemnify
and hold harmless Tenant and its and their respective partners, directors,
officers, principals, shareholders, agents and employees from and against any
and all claims arising from or in connection with any willful misconduct or
negligence of Landlord, or any of its partners, directors, principals,
shareholders, officers, agents, employees or contractors; together with all
reasonable costs, expenses and liabilities incurred in or in connection with
each such claim or action or proceeding brought thereon, including, without
limitation, all reasonable attorneys’ fees and expenses.  In case any action or proceeding be brought
against Tenant and/or its partners, directors, officers, principals,
shareholders, agents and/or employees by reason of any such claim, Landlord,
upon notice from Tenant, shall resist and defend such action or proceeding (by
counsel reasonably satisfactory to Tenant). 
The rights and obligations of Landlord and Tenant contained in this Article 35
shall survive the expiration or early termination of this Lease.


 


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ARTICLE 36


 


CERTIFICATES


 


36.1.  Tenant shall, without
charge, at any time and from time to time, within ten (10) business days after
request by Landlord, deliver a written instrument to Landlord or any other
person, firm or corporation specified by Landlord, duly executed and
acknowledged, certifying:


 


(a)                                  that this Lease is unmodified and in full
force and effect or, if there has been any modification, that the same is in
full force and effect as modified and stating any such modification;


 


(b)                                 whether the term of this Lease has
commenced and rent become payable thereunder; and whether Tenant has accepted
possession of the demised premises;


 


(c)                                  whether or not to Tenant’s knowledge there
are then existing any defenses or offsets which are not claims under paragraph (e)
of this Section 36.1 against the enforcement of any of the agreements,
terms, covenants, or conditions of this Lease and any modification thereof upon
the part of Tenant to be performed or complied with, and, if so, specifying the
same;


 


(d)                                 the dates to which the fixed annual rent,
and additional rent, and other charges hereunder, have been paid;


 


(e)                                  whether or not Tenant has made any claim
against Landlord under this Lease and if so the nature thereof and the dollar
amount, if any, of such claim; and


 


(f)                                    such other information concerning this
Lease as Landlord may reasonably request.


 


36.2.  Landlord shall, without
charge, at any time and from time to time, within ten (10) business days after
request by Tenant, deliver a written instrument to Tenant and/or any other
person, firm or corporation specified by Tenant, duly executed and
acknowledged, certifying:


 


(a)                                  that this Lease is unmodified and in full
force and effect or, if there has been any modification, that the same is in
full force and effect as modified and stating any such modification;


 


(b)                                 whether the term of this Lease has
commenced and rent become payable thereunder; and whether Tenant has accepted
possession of the demised premises;


 


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(c)                                  whether or not to Landlord’s knowledge
there are then existing any defenses or offsets which are not claims under paragraph (e)
of this Section 36.1 against the enforcement of any of the agreements,
terms, covenants, or conditions of this Lease and any modification thereof upon
the part of Landlord to be performed or complied with, and, if so, specifying
the same;


 


(d)                                 the dates to which the fixed annual rent,
and additional rent, and other charges hereunder, have been paid;


 


(e)                                  whether or not Landlord has made any
claim against Tenant under this Lease and if so the nature thereof and the
dollar amount, if any, of such claim; and


 


(f)                                    such other information concerning this
Lease as Tenant may reasonably request.


 


ARTICLE 37


 


NAME OF BUILDING


 


37.1.  Landlord shall have the
full right at any time to name and change the name of the Building and to
change the designated address of the Building. 
The Building may be named after any person, firm, or otherwise, whether
or not such name is, or resembles, the name of a tenant of the Building.


 


ARTICLE 38


 


MEMORANDUM OF LEASE


 


38.1.  Tenant shall not record
this Lease or any memorandum thereof.


 


ARTICLE 39


 


BROKERAGE


 


39.1.  Each party represents and
warrants that it neither consulted nor negotiated with any broker or finder
with regard to the demised premises except CB Richard Ellis and Cushman &
Wakefield (collectively, “Broker”).  Each party agrees to indemnify, defend and
save the other harmless from and against any claims for fees or commissions
from anyone (other than, in the case of Tenant, Broker) with whom such party
has dealt in connection with the demised premises or this Lease.  Landlord shall pay the commissions due Broker
in connection with this Lease pursuant to a separate agreement.  The provisions of this Article 39 shall
survive the expiration or early termination of this Lease.


 


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ARTICLE 40


 


INVALIDITY OF ANY PROVISION


 


40.1.  If any term, covenant,
condition or provision of this Lease or the application thereof to any
circumstance or to any person, firm or corporation shall be invalid or
unenforceable to any extent, the remaining terms, covenants, conditions and
provisions of this Lease or the application thereof to any circumstance or to
any person, firm or corporation other than those as to which any term,
covenant, condition or provision is held invalid or unenforceable, shall not be
affected thereby and each remaining term, covenant, condition and provision of
this Lease shall be valid and shall be enforceable to the fullest extent
permitted by law.


 


40.2.  If any term, covenant,
condition or provision of this Lease is found invalid or unenforceable to any
extent, by a final judgment or award which shall not be subject to change by
any appeal, then either party to this Lease may initiate an arbitration in
accordance with the provisions of Article 33 hereof, which arbitration
shall be by three (3) arbitrators each of whom shall have at least ten (10)
years’ experience in the supervision of the operation and management of major
office buildings in Manhattan.  Said
arbitrators shall devise a valid and enforceable substitute term, covenant,
condition or provision for this Lease which shall as nearly as possible carry
out the intention of the parties with respect to the term, covenant, condition
or provisions theretofore found invalid or unenforceable.  Such substitute term, covenant, condition or
provision, as determined by the arbitrators, shall thereupon be deemed a part
of this Lease.


 


ARTICLE 41


 


MISCELLANEOUS


 


41.1.  The captions are inserted
only as a matter of convenience and for reference, and in no way define, limit
or describe the scope of this Lease nor the intent of any provision thereof.


 


41.2.  It is understood and
agreed that this Lease is submitted to Tenant on the understanding that it
shall not be considered an offer and shall not bind Landlord in any way
whatsoever until (a) Tenant has duly executed and delivered duplicate
originals to Landlord, and (b) Landlord has executed and delivered one of
said fully executed originals to Tenant.


 


41.3.  The demised premises shall
not be a reentry floor.


 


41.4.  Except as otherwise
expressly provided in this Lease, the obligations of this Lease shall bind and
benefit the successors and assigns of the parties hereto with the same effect
as if mentioned in each instance where a party is named or referred to;
provided, however, that (a) no violation of the provisions of Article 15
shall


 


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operate
to vest any rights in any successor or assignee of Tenant and (b) the
provisions of this Article 41 shall not be construed as modifying the
conditions of limitation contained in Article 19 hereof.


 


41.5.  Upon the expiration or
other termination of this Lease neither party shall have any further obligation
or liability to the other except as otherwise expressly provided in this Lease
and except for such obligations as 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; and, in any event, unless otherwise expressly
provided in this Lease, any liability for a payment (including, without
limitation, additional rent under Articles 4 and 5 hereof) which shall
have accrued to or with respect to any period ending at the time of expiration
or other termination of this Lease shall survive the expiration or other
termination of this Lease.


 


41.6.  If the demised premises be
or become infested with vermin as a result of any misuse or neglect of the
demised premises by Tenant, its agents, employees, visitors or licensees,
Tenant shall at Tenant’s expense cause the same to be exterminated from time to
time to the reasonable satisfaction of Landlord and shall employ such
exterminators and such exterminating company or companies as shall be
reasonably approved by Landlord.


 


41.7.  Irrespective of the place
of execution or performance, this Lease shall be governed by and construed in
accordance with the laws of the State of New York.  This Lease shall be construed without regard
to any presumption or other rule requiring construction against the party
causing this Lease to be drafted.  All
terms and words used in this Lease, shall be deemed to include any other number
and any other gender as the context may require.


 


41.8.  If under the terms of this
Lease Tenant is obligated to pay Landlord a sum in addition to the fixed annual
rent under the lease and no payment period therefor is specified, Tenant shall
pay Landlord the amount due within thirty (30) days after being billed.


 


41.9.  Notwithstanding anything
to the contrary contained in this Lease, during the continuance of any default
by Tenant after the giving of notice and the expiration of any applicable grace
periods hereunder, Tenant shall not be entitled to exercise any rights or
options, or to receive any funds or proceeds being held, under or pursuant to
this Lease.


 


41.10.  Each party represents and
warrants that this Lease has been duly authorized, executed and delivered by such
party.  Tenant further represents and
warrants that the Office of Foreign Assets Control of the United States
Department of the Treasury has not listed Tenant or any of Tenant’s affiliates,
or any person that controls, is controlled by, or is under common Control with
Tenant, on its list of Specially Designated Nationals and Blocked Persons.


 


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41.11.  Any bill for additional
rent rendered by Landlord to Tenant, and any bill for services rendered to
Tenant by the cleaning contractor for the Building shall constitute a final
determination as between Landlord (or such cleaning contractor, as the case may
be) and Tenant of the accuracy and appropriateness of the additional rent or
cleaning charges set forth on such bill, unless Tenant, within fourteen (14)
months after such bill is furnished to Tenant, shall give a notice to Landlord
that it disputes the accuracy or appropriateness of such bill, which notice
shall specify the particular respects in which the bill is inaccurate or
inappropriate.  Pending the resolution of
such dispute, Tenant shall pay the additional rent or cleaning charges in
accordance with the bill furnished by Landlord or the cleaning contractor for
the Building, as the case may be.  The
provisions of this Section 41.11 shall not apply to bills for the Expense
Payment or for additional rent relating to real estate taxes, each of which are
governed by other provisions of this Lease.


 


41.12.  Tenant acknowledges that
it has no rights to any development rights, “air rights” or comparable rights
appurtenant to the building project, and consents, without further
consideration, to any utilization of such rights by Landlord and agrees to
promptly execute and deliver any instruments which may reasonably be requested
by Landlord, including instruments merging zoning lots, evidencing such
acknowledgment and consent.  The
provisions of this Section 41.12 shall be deemed to be and shall be
construed as an express waiver by Tenant of any interest Tenant may have as a “party
in interest” (as such quoted term is defined in Section 12-10 Zoning Lot
of the Zoning Resolution of the City of New York) in the building project.


 


41.13.  Tenant shall indemnify
and hold Landlord harmless from and against any loss, damage or liability
suffered or incurred by Landlord on account of any sales or other tax payable by
tenant with respect to any cleaning or other services which Tenant obtains or
contracts for directly from any third party or parties.


 


41.14.  If the demised premises
or any additional space to be included within the demised premises shall not be
available for occupancy by Tenant on the specific date hereinbefore designated
for the commencement of the term of this Lease or for the inclusion of such
space for any reason whatsoever, then this Lease shall not be affected thereby
but, in such case, said specific date shall be deemed to be postponed until the
date when the demised premises or such additional space shall be available for
occupancy by Tenant, and Tenant shall not be entitled to possession of the
additional space until the same are available for occupancy by Tenant;
provided, however, Tenant shall have no claim against Landlord, and Landlord
shall have no liability to Tenant by reason of any such postponement of said
specific date, and the parties hereto further agree that any failure to have
the demised premises or such additional space available for occupancy by Tenant
on said specific date or on the Commencement Date shall in no way affect the
obligations of Tenant hereunder nor shall the same be construed in any way to
extend the Term.  This Section 41.13
shall be deemed to be an express provision


 


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to the
contrary of Section 223-a of the Real Property Law of the State of New
York and any other law of like import now or hereafter in force.


 


41.15.  (a)  Tenant shall not cause or permit “Hazardous Materials” (as hereafter
defined) to be used, transported, stored, released, handled, produced or
installed in, on or from, Tenant’s premises or the Building in violation of any
applicable laws.  The term “Hazardous
Materials” shall, for the purposes hereof, mean any flammable explosives,
radioactive materials, hazardous wastes, hazardous and toxic substances, or
related materials, asbestos or any material containing asbestos, or any other
substance or material, as defined by any federal, state or local environmental
law, ordinance, rule or regulation including, without limitation, the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended, the Hazardous Materials Transportation Act, as amended, the Resource
Conservation and Recovery Act, as amended, and in the regulations adopted and
publications promulgated pursuant to each of the foregoing.  In the event of a breach of the provisions of
this Section 41.14, Landlord shall, in addition to all of its rights and
remedies under this Lease and pursuant to law, require Tenant to remove any
such Hazardous Materials from the demised premises in the manner prescribed for
such removal by Legal Requirements.


 


(b)                                 Landlord represents and warrants that the
demised premises and the public areas in the Building are free of Hazardous
Materials.


 


(c)                                  The provisions of this Section 41.14
shall survive the expiration or sooner termination of this Lease.


 


ARTICLE 42


 


SECURITY


 


42.1.  Tenant shall deliver to
Landlord on the Commencement Date, and Tenant shall maintain in effect at all
times during the term hereof, as security for the full and faithful performance
and observance by Tenant of Tenant’s covenants and obligations under this
Lease, an unconditional irrevocable letter of credit in the amount of Six
Hundred Fifty-Eight Thousand Three Hundred Forty-Four ($658,344.00)) Dollars,
substantially in the form annexed hereto as Exhibit G and otherwise
reasonably satisfactory to Landlord and issued by a banking corporation
reasonably satisfactory to Landlord and either having its principal place of
business or a duly licensed branch or agency in the borough of Manhattan, City
and County of New York.  Such letter of
credit shall have an expiration date no earlier than the first anniversary of
the date of issuance thereof and shall be automatically renewed from year to year
unless terminated by the issuer thereof by notice to Landlord given not less
than thirty (30) days prior to the expiration thereof.  Tenant shall, throughout the term of this
Lease, deliver to Landlord, in the event of the termination of any such letter
of credit, replacement letters of credit in lieu thereof (each such letter of
credit and such extensions or replacements thereof, as the case may be, is
herein called a “Security Letter”)
no later than thirty (30) days prior to


 


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the
expiration date of the preceding Security Letter.  The term of each such Security Letter shall
be not less than one (1) year and shall be automatically renewable from year to
year as aforesaid.  Notwithstanding the
foregoing, if Landlord shall elect, in its sole discretion, to accept a
Security Letter which is subject to a final expiration date, Tenant shall
deliver a replacement of or amendment to such Security Letter no later than
thirty (30) days prior to such final expiration date, and the final Security
Letter delivered to Landlord pursuant to this Section 42.1 shall have a
final expiration date occurring not earlier than sixty (60) days following the
Expiration Date of this Lease.  If Tenant
shall fail to obtain any replacement of or amendment to a Security Letter
within any of the applicable time limits set forth in this Section 42.1,
Tenant shall be in default of its obligations under this Article 42 and
Landlord shall have the right (but not the obligation), at its option, to draw
down the full amount of the existing Security Letter and use, apply and retain
the same as security hereunder.  Provided
that Tenant is not then in default under this Lease beyond the expiration of
any applicable notice and cure periods, Landlord shall return the Security
Letter to Tenant on the first anniversary of the Rent Commencement Date.


 


42.2.  If Tenant defaults in
respect of the full and prompt payment and performance of any of the terms,
provisions, covenants and conditions of this Lease beyond notice (the delivery
of which shall not be required for purposes of this Section 42.2 if
Landlord is prevented or prohibited from delivering the same under applicable
law, including, but not limited to, all applicable bankruptcy and insolvency
law) and the expiration of any applicable cure periods (except that no notice
and cure period shall be required for purposes of this Section 42.2 with
respect to any default by Tenant hereunder if, at the time of such default, any
of the events set forth in Article 18 hereof shall have occurred with or
without the acquiescence of Tenant), including, without limitation, the payment
of fixed annual rent and additional rent, Landlord may, at its election, (but
shall not be obligated to) draw down the entire Security Letter or any portion
thereof and use, apply or retain the whole or any part of the security
represented by the Security Letter to the extent required for the payment
of:  (a) fixed annual rent,
additional rent or any other sum as to which Tenant is in default, (b) any
sum which Landlord may expend or may be required to expend by reason of Tenant’s
default in respect of any of the terms, provisions, covenants, and conditions
of this Lease, including, without limitation, any reletting costs or expenses
(including, without limitation, any free rent, tenant improvement allowance,
leasing commissions, attorneys’ fees, costs and expenses, and other fees, costs
and expenses relating to the reletting of all or any portion of the demised
premises), (c) any damages or deficiency in the reletting of the demised
premises, whether such damages or deficiency accrued before or after summary
proceedings or other re-entry by Landlord, or (d) any damages awarded to
Landlord in accordance with the terms and conditions of Article 20 hereof,
it being understood that any use of the whole or any part of the security
represented by the Security Letter shall not constitute a bar or defense to any
of Landlord’s other remedies under this Lease or any law, rule or regulation,
including, without limitation, Landlord’s right to assert a claim against
Tenant under 11 U.S.C. §502(b)(6) or any other provision


 


84





















 


of
title 11 of the United States Code.  To
insure that Landlord may utilize the security represented by the Security Letter
in the manner, for the purpose, and to the extent provided in this Article 42,
each Security Letter shall provide that the full amount or any portion thereof
may be drawn down by Landlord upon the presentation to the issuing bank (or the
advising bank, if applicable) of Landlord’s draft drawn on the issuing bank
without accompanying memoranda or statement of beneficiary.  In no event shall the Security Letter require
Landlord to submit evidence to the issuing (or advising) bank of the truth or
accuracy of any such written statement and in no event shall the issuing bank
or Tenant have the right to dispute the truth or accuracy of any such statement
nor shall the issuing (or advising) bank have the right to review the
applicable provisions of this Lease.  In
no event and under no circumstance shall the draw down on or use of any amounts
under the Security Letter constitute a basis or defense to the exercise of any
other of Landlord’s rights and remedies under this Lease or under any law, rule
or regulation, including, without limitation, Landlord’s right to assert a
claim against Tenant under 11 U.S.C. §502(b)(6) or any other provision of title
11 of the United States Code.


 


42.3.  If Tenant defaults in
respect of any of the terms, provisions, covenants and conditions of this Lease
beyond notice and the expiration of any applicable cure periods (except to the
extent that such notice and cure periods are not applicable pursuant to Section 42.2
hereof) and Landlord utilizes all or any part of the security represented by
the Security Letter but does not terminate this Lease as provided in Article 20
hereof, Landlord may, in addition to exercising its rights as provided in Section 42.2 hereof,
retain the unapplied and unused balance of the portion of the Security Letter
drawn down by Landlord (herein called the “Cash
Security”) as security for the faithful performance and
observance by Tenant thereafter of the terms, provisions, and conditions of
this Lease, and may use, apply, or retain the whole or any part of said Cash
Security to the extent required for payment of fixed annual rent, additional
rent, or any other sum as to which Tenant is in default or for any sum which
Landlord may expend or be required to expend by reason of Tenant’s default in
respect of any of the terms, covenants, and conditions of this Lease.  In the event Landlord uses, applies or
retains any portion or all of the security represented by the Security Letter,
Tenant shall forthwith restore the amount so used, applied or retained (at Tenant’s
option, either by the deposit with Landlord of cash or the provision of a
replacement Security Letter) so that at all times the amount of the security
represented by the Security Letter and the Cash Security (if any) shall be not
less than the security required by Section 42.1 hereof, failing which
Tenant shall be in default of its obligations under this Article 42 and
Landlord shall have the same rights and remedies as for the non-payment of
fixed annual rent beyond the applicable grace period.


 


42.4.  If Tenant shall fully and
faithfully comply with all of Tenant’s covenants and obligations under this
Lease, the Security Letter and the Cash Security (if any) shall be returned to
Tenant within thirty (30) days after both (i) the expiration or early termination
of this Lease and (ii) the delivery to Landlord of entire possession of
the demised premises as provided in this Lease; provided, however, that in no
event shall


 


85





















 


any
such return be construed as an admission by Landlord that Tenant has performed
all of its obligations hereunder.  In the
event of any sale, transfer or leasing of Landlord’s interest in the Building
whether or not in connection with a sale, transfer or leasing of the Land to a
vendee, transferee or lessee, Landlord shall transfer the Security Letter and
the Cash Security (if any) to the vendee, transferee or lessee or, in the
alternative, to require Tenant to deliver a replacement Security Letter naming
the new landlord as beneficiary, and, upon such delivery by Tenant of such
replacement Security Letter, Landlord shall return the existing Security Letter
to Tenant.  Upon such transfer or return
of the Security Letter and the Cash Security (if any), Landlord shall thereupon
be released by Tenant from all liability for the return thereof, and Tenant
shall look solely to the new landlord for the return of the same.  The provisions of the preceding sentence
shall apply to every subsequent sale, transfer or leasing of the Building, and
any successor of Landlord may, upon a sale, transfer, leasing or other
cessation of the interest of such successors in the Building, whether in whole
or in part, transfer the Security Letter and the Cash Security (if any) to any
vendee, transferee or lessee of the Building (or require Tenant to deliver a
replacement Security Letter as hereinabove set forth) and shall thereupon be
relieved of all liability with respect thereto. 
If Tenant shall fail to timely deliver such replacement Security Letter,
Tenant shall be in default of its obligations under this Article 42 and
Landlord shall have the right (but not the obligation), at its option, to draw
down the existing Security Letter and retain the proceeds as security hereunder
until a replacement Security Letter is delivered.  Landlord and Tenant hereby agree that, in
connection with the transfer by Landlord or its successors or assigns hereunder
of Landlord’s interest in the Security Letter, Tenant shall be solely liable to
pay any transfer commission and other costs charged by the issuing bank in
connection with any such transfer of the Security Letter.  Except in connection with a permitted
assignment of this Lease, Tenant shall not assign or encumber or attempt to
assign or encumber the security represented by the Security Letter, and neither
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.  In any event, in the absence of evidence satisfactory
to Landlord of an assignment of the right to receive the security represented
by the Security Letter, Landlord may return the Security Letter to the original
Tenant regardless of one or more assignments of this Lease.


 


42.5.  Neither the Security
Letter, any proceeds therefrom or the Cash Security, if any, shall be deemed an
advance rent deposit or an advance payment of any other kind, or a measure or
limitation of Landlord’s damages or constitute a bar or defense to any of the
Landlord’s other remedies under this Lease or at law or in equity upon Tenant’s
default.


 


42.6.  Tenant hereby acknowledges
and agrees that the Security Letter and the proceeds thereof (including,
without limitation, any Cash Security created by the draw down of all or any
portion of the Security Letter) and the obligation to make available or pay to
Landlord all or a portion thereof in satisfaction of any obligation of Tenant
under this Lease, shall be deemed third-party obligations and not the
obligation of Tenant hereunder and, accordingly, (a) shall not be subject
to any limitation on damages


 


86





















 


contained
in Section 502(b)(6) of Title 11 of the United States Code or any other
limitation on damages that may apply under any federal, state or local law,
rule or regulation in connection with a bankruptcy, insolvency or other similar
proceeding by, against or on behalf of Tenant, (b) shall not diminish or
be offset against any amounts that Landlord would be able to claim against
Tenant pursuant to 11 U.S.C. §502(b)(6) as if no Security Letter existed, and
(c) may be relied on by Landlord in the event of an assignment of this
Lease that is not expressly in accordance with the terms of this Lease even if
such assignment has been authorized and approved by a court exercising
jurisdiction in connection with a bankruptcy, insolvency or other similar
proceeding by, against or on behalf of Tenant.


 


ARTICLE 43


 


ROOFTOP COMMUNICATIONS EQUIPMENT


 


43.1.  (a) Landlord agrees that,
subject to (x) the availability of suitable space on the rooftop of the
Building in Landlord’s reasonable discretion, (y) all legal requirements,
and (z) the terms and provisions as are hereinafter set forth, during the
term of the Lease, Tenant, at Tenant’s cost and expense, may install on a
portion of the rooftop of the Building designated by Landlord, acting
reasonably (herein called the “Antenna
Area”) and thereafter maintain, repair, and operate one
communications apparatus (e.g., an antenna, microwave dish or satellite
communications apparatus; herein called, together with related support
structures, wires and cables, the “Antenna”)
as an incident to the conduct of Tenant’s business in the demised premises,
provided and on condition that:


 


(i)                                     the size and dimensions of the Antenna,
and the size and dimensions of any required support structures, shall be
subject to Landlord’s prior consent (provided, however, that Landlord hereby
approves of an Antenna having a diameter of up to two (2) meters);


 


(ii)                                  the installation and position of such
Antenna and reasonably required support structures shall comply with all legal
requirements;


 


(iii)                               the installation of any electrical or
communications lines (herein called “Wiring”)
and related equipment in connection with the installation and operation of the
Antenna, as well as the manner and location (i.e., routing) of all Wiring and
related equipment in connection therewith shall (1) be at Tenant’s cost
and expense, (2) be subject to Landlord’s prior consent; such consent not
to be unreasonably withheld with respect to the reasonable use of the existing
risers of the Building for the routing of the Wiring from the demised premises
to the Antenna Area if and to the extent Landlord shall determine (in its good
faith reasonable discretion) that adequate space therein is available and
adequate reserves exist therein for the Building and other present and future
tenants of the Building and (3) comply with all legal requirements; and


 


87





















 


(iv)                              the Antenna, reasonably required support
structures, Wiring and related equipment shall be maintained and kept in repair
by Tenant, at Tenant’s cost and expense.


 


(b) The parties agree that Tenant’s use of the rooftop of the Building
is a nonexclusive use and Landlord may permit the use of any other portion of
the roof to any other person, firm or corporation for any use including the
installation of other antennas and support equipment. Tenant covenants and
agrees that the Antenna shall not interfere with or adversely affect any of
Landlord’s equipment, installations, lines or machinery, or the use, repair,
maintenance or removal thereof.  Tenant
shall cooperate reasonably with any other tenant of the Building or other
person (herein called a “Roof User”)
having equipment, installations, lines or machinery on the roof of the Building
(herein called “Rooftop Installations”)
so as not to cause (or to eliminate) any interference or adverse effect caused
to such Rooftop Installations or the use, repair, maintenance or removal
thereof by the Antenna.


 


(c) For the purpose of installing, servicing or repairing the Antenna
and related equipment, Tenant shall have reasonable access to the rooftop of
the Building upon prior reasonable request of Landlord.  All access by Tenant to the roof of the Building
shall be subject to the supervision and control of Landlord and to Landlord’s
reasonable safeguards for the security and protection of the Building, the
Building equipment, and installations and equipment of other Tenants and
occupants of the Building as may be located on the roof of the Building.  Landlord shall have the right to assign a
Building representative to be present during the duration of Tenant’s access to
the rooftop and Tenant shall pay to Landlord the amount of Landlord’s
commercially reasonable, actual out-of pocket costs therefor within thirty (30)
days after demand.


 


(d) Tenant, at Tenant’s cost and expense, agrees to promptly and
faithfully obey, observe and comply with all laws, ordinances, regulations,
requirements and rules of all governmental authorities in any manner affecting
or relating to Tenant’s use of said roof as to the installation, repair,
maintenance and operation of any support structures, Antenna and related
equipment erected or installed by Tenant pursuant to the provisions of this Article 43.  Tenant, at Tenant’s cost and expense, shall
secure and thereafter maintain all permits and licenses required for the
installation and operation of the Antenna and any support structures and
related equipment erected or installed by Tenant pursuant to the provisions of
this Article 43, including, without limitation, any approval, license or
permit required from the Federal Communications Commission.  In no event shall the maximum level of
microwave emissions from the Antenna exceed an amount equal to Tenant’s
proportionate share of the total microwave emissions allowable for the Building
as determined by the governmental authorities having jurisdiction thereof.


 


(e) Tenant agrees that Tenant will pay for all electrical service required
for Tenant’s use of the Antenna and related equipment erected or installed by
Tenant pursuant to the provisions of this Article 43 in accordance with
the applicable provisions


 


88





















 


of the
Lease.  Tenant further agrees that such
electric service shall, at Landlord’s election, either (i) feed off a new
electrical panel to be installed by Landlord on the rooftop of the Building, in
which event, Tenant shall be responsible for the cost of such panel and the installation
of same and for the cost of all electrical service supplied to such panel by
the public utility or other electricity provider or if same is present and
available, (ii) feed off of an existing electric supply on the rooftop of
the Building, in which event Tenant shall pay Landlord’s reasonably estimated
cost of the electrical load and usage of the Antenna as well as the cost of
connecting the Antenna thereto.  In the
event Landlord makes the election set forth in the preceding clause (ii),
Landlord’s estimate may be increased from time to time based upon increases in
the electrical load or usage of the Antenna or increases or changes in Landlord’s
electricity rates or charges (in order to determine any such increases in load
or usage, Landlord may, from time to time, at Tenant’s cost and expense, have
Landlord’s electrical consultant perform a survey with respect to the
electrical load and usage of the Antenna). 
The estimate by Landlord set forth in clause (ii) or any change
thereto by Landlord’s consultant shall be binding and conclusive on Tenant,
unless within ninety (90) days after the delivery of the amount of Landlord’s
estimate or any changes thereto, Tenant disputes such determination by
providing written notice of such dispute to Landlord.  If Tenant disputes the determination, it
shall, at its own expense, obtain from a reputable, independent electrical
consultant its own survey of the electrical load and usage of the Antenna, and
a determination of such change in the Landlord’s estimate or change
thereto.  Tenant’s consultant and
Landlord’s consultant then shall seek to agree on a finding of such
determination of a proper charge for the provision of electrical service to the
Antenna.  If they cannot agree, they
shall choose a third reputable electrical consultant whose cost shall be borne
by Tenant, to make a similar survey, and the determination of the charge for
the provision of electrical service to the Antenna by such third electrical
consultant shall be controlling (If they cannot agree on such third consultant,
within ten (10) days, then either party may apply to the Supreme Court in the
County of New York for the appointment of such third consultant.)  However, pending such determination, Tenant shall
pay to Landlord the amount of Landlord’s estimate or any change thereto,
provided, however, if the amount of the charge for the provision of electrical
service to the Antenna is determined as aforesaid is different from that
determined by Landlord’s electrical consultant, then Landlord and Tenant shall
make adjustment for any deficiency owed by Tenant or overage paid by Tenant.


 


(f) The Antenna, support structures and related equipment installed by
Tenant pursuant to the provisions of this Article 43 shall be Tenant’s
personal property, and, upon the expiration, or earlier termination of this
Lease, shall be removed by Tenant, at Tenant’s cost and expense.  All wiring and related electrical equipment
installed by Tenant in connection with the installation and operation of the
Antenna shall be Tenant’s personal property. 
Upon the expiration, or earlier termination of this Lease, if Landlord
so directs by written notice to Tenant, Tenant shall promptly remove the Wiring
and electrical equipment as designated in such notice, at Tenant’s cost and
expense.  Tenant, at Tenant’s cost and
expense, shall promptly repair any and all damage to the rooftop of


 


89





















 


the
Building and to any other part of the Building caused by or resulting from the
installation, maintenance and repair, operation or removal of the Antenna,
support structures, Wiring and related equipment erected or installed by Tenant
pursuant to the provisions of this Article 43 and restore said affected
areas to their condition as existed prior to the installation of the Antenna
and related equipment, subject to normal wear and tear and damage by fire or
other casualty.  Notwithstanding anything
to the contrary contained in the preceding sentence, in the event Tenant fails
to perform such repair work after notice and expiration of applicable cure
periods, if any, Landlord shall have the option of performing any such repairs,
at Tenant’s cost and expense, to the extent that same are commercially
reasonable, which cost and expense shall be payable by Tenant to Landlord
within thirty (30) days after demand.


 


(g) Except for electrical service pursuant to Section 43.1(e)
above, Tenant agrees that Landlord shall not be required to provide any
services whatsoever to the rooftop of the Building.


 


(h) Tenant covenants and agrees that all installations made by Tenant
on the rooftop of the Building or in any other part of the Building pursuant to
the provisions of this Article 43 shall be at the sole risk of Tenant, and
neither Landlord nor Landlord’s agent or employees shall be liable for any
damage or injury thereto caused in any manner unless arising out of the
negligence of Landlord or Landlord’s agents or employees.


 


(i) With respect to the Antenna and Tenant’s use of a portion of the
rooftop of the Building, Tenant shall obtain and thereafter maintain during the
term of this Lease insurance coverage for the benefit of Landlord (and its
managing agent and mortgagee, if applicable) in such amount and of such type as
Landlord may reasonably require but not in excess of such amounts required by
prudent landlords of comparable first class office buildings located in midtown
Manhattan.  If any installations made by
or on behalf of Tenant referred to in this Article 43 should revoke,
negate or in any manner impair or limit any roof warranty or guaranty obtained
by Landlord, then Tenant shall reimburse Landlord for any loss or damage
sustained or costs or expenses incurred by Landlord as a result thereof.


 


(j) All plans and specifications of Tenant’s work and installations to
be done and made by Tenant pursuant to the provisions of this Article 43
shall be subject to the prior approval of Landlord, such approval not to be
unreasonably withheld or delayed (subject to the provisions of Article 8
hereof), and shall be further subject to inspection and reasonable supervision
by Landlord, it being agreed and acknowledged that Landlord shall not be deemed
to incur any liability by reason of the provisions of this Section.


 


(k) Tenant acknowledges being advised by Landlord that Landlord has
granted, and shall be granting, to third parties various rights and licenses to
utilize various portions of the Building and rooftop thereof for the
installation of microwave dishes, satellite communications equipment, whip
antennae and other communications equipment and related equipment (all of the
foregoing are herein collectively referred to


 


90





















 


as “Other Communications Equipment”) and
that, inasmuch as Landlord’s ability to facilitate the installation and
operation of such Other Communications Equipment will be of paramount
importance to Landlord, Landlord shall have the right, at any time and from
time to time, upon thirty (30) days’ prior written notice to Tenant, to
relocate Tenant’s Antenna, support structures and related equipment to other
areas of the Building and rooftop thereof (provided that the Antenna shall be
relocated to a portion of the rooftop), as Landlord, in its reasonable
discretion, may determine, so as to accommodate such Other Communications
Equipment on the roof of the Building and so as to eliminate, or not to create,
problems of interference with respect to or between Other Communications
Equipment now, or in the future, installed on the roof or other areas of the
Building.  Such relocation shall, to the
extent practicable, be performed during hours other than Tenant’s regular
business hours so as to minimize any disruption of Tenant’s normal business
activities and, except for such downtime, such relocation shall not prevent
Tenant from using its Antenna for its original intended purpose, without any
material decrease in the quality of communications or material increase in the
cost of operating, maintaining, repairing and removing the Antenna.  Tenant shall cooperate with Landlord to
effectuate the relocation of Tenant’s Antenna, support structures and related
equipment as shall be required by Landlord. 
All costs involved in such relocation shall be borne by Landlord and
such relocation shall be performed by Landlord in compliance with all
applicable legal requirements.


 


(l) Tenant shall not be permitted to assign or transfer all or any
portion of the rights granted to Tenant pursuant to this Article 43 unless
Tenant assigns this Lease or sublets all of the demised premises to the party
to whom such rights are assigned or transferred pursuant to the applicable
provisions of this Lease


 


91





















 


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


 


	
   

  	
  Landlord

  
	
   

  	
   

  
	
   

  	
  FISHER-PARK LANE OWNER
  LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Fisher-Park Lane
  Management Corp., its

  Manager

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Richard L.
  Fisher

  	
   

  
	
   

  	
   

  	
  Name: Richard L. Fisher

  
	
   

  	
   

  	
  Title: President

  
	
   

  
	
   

  
	
   

  	
  Tenant

  
	
   

  	
   

  
	
   

  	
  GENERAL MARITIME CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ John C.
  Georgiopoulos

  	
   

  
	
   

  	
   

  	
  Name: John C.
  Georgiopoulos

  
	
   

  	
   

  	
  Title: Chief
  Administrative Officer

  
						



 


Tenant’s Federal
Identification Number is as follows: 


 


92





















 


ACKNOWLEDGMENT


 


	
  State of New York)

  	
  )

  
	
   

  	
  ):ss

  
	
  County of New York)

  	
  )

  



 


On the 13 day of December in
the year 2004, before me, the undersigned, a Notary Public in and for said
state, personally appeared Richard L. Fisher personally known to me or
proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their capacity(ies) as President
of Fisher-Park Lane Owner LLC and that by his/her/their signature(s) on
the instrument, the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.


 


 


	
   

  	
  /s/ Dana L. Green

  	
   

  
	
   

  	
  Notary Public

  	
   

  



 





















 


ACKNOWLEDGMENT


 


	
  State of New York)

  	
  )

  
	
   

  	
  ):ss

  
	
  County of New York)

  	
  )

  



 


On the 13 day of December in
the year 2004, before me, the undersigned, a Notary Public in and for said
state, personally appeared John C. Georgiopoulos personally known to me
or proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their capacity(ies) as CAO
of General Maritime Corporation, and that by his/her/their signature(s)
on the instrument, the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.


 


 


	
   

  	
  /s/ Dana L. Green

  	
   

  
	
   

  	
  Notary Public

  	
   

  



 





















 


EXHIBIT A


 


FLOOR PLAN


 


 


(annexed hereto)


 


A-1





















 


EXHIBIT B


 


CLEANING FEE CALCULATION


 


B-1





















 


EXHIBIT C


 


WAGE RATE CALCULATION


 


C-1





















 


EXHIBIT D


 


LANDLORD’S WORK


 


(a)                                  Demolish
the entire demised premises in accordance with Tenant’s specifications.


 


(b)                                 All
exposed structural steel shall be fireproofed for any demolished space.


 


(c)                                  Cause
all floors in the demised premises to be reasonably level in accordance with
industry standards.


 


(d)                                 All
core and exterior columns and walls shall be ready to receive Tenant finish.


 


(e)                                  Deliver
4 original ACP-5 certificates.


 


(f)                                    Landlord
shall provide Tenant with sufficient fire alarm system connection points for
Tenant’s present and future needs.


 


(g)                                 Install
Check Meters.


 


Landlord anticipates that
Landlord’s Work will be completed by November 30, 2004.  In addition to Landlord’s Work, Landlord will
remove the elevator between the ground floor and the demised premises and
repair the slab (collectively, the “Elevator Work”)
at Landlord’s expense which shall be completed by November 30, 2004.


 


Landlord represents that
the induction units in the demised premises are in operating condition [and will replace any damaged covers thereon.]


 


D-1





















 


EXHIBIT E


 


RULES AND REGULATIONS


 


(A)                              The sidewalks, and public portions of the
Building, such as entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by any
tenant or used for any purpose other than ingress and egress to and from the
demised premises.


 


(B)                                No awnings or other projections shall be
attached to the outside walls of the Building.


 


(C)                                No sign, advertisement, notice or other
lettering shall be exhibited, inscribed, painted or affixed by any tenant on
any part of the outside of the demised premises or Building or on corridor
walls.  Signs on entrance door or doors
shall conform to building standard signs, samples of which are on display in
Landlord’s rental office.  Signs on doors
shall, at the tenant’s expense, be inscribed, painted or affixed for each
tenant by sign makers approved by Landlord, acting reasonably.  In the event of the violation of the
foregoing by any tenant, Landlord may remove same without any liability, and
may charge the actual, out-of-pocket, reasonable expense incurred by such
removal to the tenant or tenants violating this rule.


 


(D)                               The sashes, sash doors, skylights, windows,
heating, ventilating and air conditioning vents and doors that reflect or admit
light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by any tenant, nor shall any
bottles, parcels, or other articles be placed outside of the demised premises.


 


(E)                                 No show cases or other articles shall be
put in front of or affixed to any part of the exterior of the Building, nor
placed in the public halls, corridors or vestibules without the prior written
consent of Landlord.


 


(F)                                 Intentionally deleted.


 


(G)                                The water and wash closets and other
plumbing fixtures shall not be used for any purposes other than those for which
they were constructed, and no sweepings, rubbish, rags, or other substances
shall be thrown therein.  Subject to the
provisions of Section 12.6(a), all damages resulting from any misuse of
the fixtures shall be borne by the Tenant who, or whose servants, employees,
agents, visitors or licensees, shall have caused the same.


 


(H)                               No tenant shall in any way deface any
part of the demised premises or the Building of which they are a part.  No tenant shall lay linoleum, or other
similar floor covering, so that the same shall come in direct contact with the
floor of the demised premises, and, if linoleum or other similar floor covering
is desired to be used,


 


E-1





















 


an
interlining of builder’s deadening felt shall be first affixed to the floor, by
a paste or other material, soluble in water, the use of cement or other similar
adhesive material being expressly prohibited.


 


(I)                                    No bicycles, vehicles or animals of any
kind (except seeing eye dogs) shall be brought into or kept in or about the
premises.  No cooking shall be done or
permitted by any Tenant on said premises except in conformity to law and then
only in the utility kitchen or pantry, if any, as set forth in Tenant’s layout,
which is to be primarily used by Tenant’s employees for heating beverages and
light snacks.  No tenant shall cause or
permit any unusual or objectionable odors to be produced upon or permeate from
the demised premises.


 


(J)                                   No space in the Building shall be used
for the distribution or for the storage of merchandise or for the sale at
auction or otherwise of merchandise, goods or property of any kind.


 


(K)                               No tenant shall make, or permit to be
made, any unseemly or disturbing noises or disturb or interfere with occupants
of the Building or neighboring buildings or premises or those having business
with them, whether by the use of any musical instrument, radio, talking
machine, unmusical noise, whistling, singing, or in any other way.  No tenant shall throw anything out of the
doors or windows or down the passageways.


 


(L)                                 No tenant, nor any of the tenant’s
servants, employees, agents, visitors or licensees, shall at any time bring or
keep upon the demised premises any inflammable, combustible or explosive fluid,
or chemical substance, other than reasonable amounts of cleaning fluids and
solvents required in the normal operation of tenant’s business offices.


 


(M)                            No additional locks or bolts of any kind
shall be placed upon any of the doors or windows by any tenant, nor shall any
changes be made in existing locks or the mechanism thereof, without the prior
written approval of the Landlord and unless and until a duplicate key is
delivered to Landlord.  Each tenant must,
upon the termination of his tenancy, restore to the Landlord all keys of
stores, offices and toilet rooms, either furnished to, or otherwise procured
by, such tenant, and in the event of the loss of any keys so furnished, such
tenant shall pay to Landlord the cost thereof.


 


(N)                               All removals, or the carrying in or out
of any safes, freight, furniture or bulky matter of any description must take
place during the hours which Landlord or its agent may reasonably determine
from time to time.  Landlord reserves the
right to inspect all freight to be brought into the Building and to exclude
from the Building all freight which violates any of these Rules and Regulations
or the Lease of which these Rules and Regulations are a part.


 


E-2





















 


(O)                               No tenant shall occupy or permit any
portion of the premises demised to it to be occupied as, by or for a public
stenographer or typist, barber shop, bootblacking, beauty shop or manicuring,
beauty parlor, telephone or telegraph agency, telephone or secretarial service,
messenger service, travel or tourist agency, employment agency, public
restaurant or bar, commercial document reproduction or offset printing service,
public vending machines, retail, wholesale or discount shop for sale of
merchandise, retail service shop, labor union, school or classroom,
governmental or quasi-governmental bureau, department or agency, including an
autonomous governmental corporation, a firm the principal business of which is
real estate brokerage, or a company engaged in the business of renting office
or desk space; or for a public finance (personal loan) business, or for
manufacturing.  No tenant shall engage or
pay any employees on the demised premises, except those actually working for
such tenant on said premises, nor advertise for laborers giving an address at
said premises.


 


(P)                                 Nothing shall be done or permitted in any
tenant’s premises, and nothing shall be brought into or kept in any tenant’s
premises, which would impair or interfere with any of the Building’s services
or the proper and economic heating, ventilating, air conditioning, cleaning or
other servicing of the Building or the premises, or the use or enjoyment by any
other tenant of any other premises, nor shall there be installed by any tenant
any ventilating, air-conditioning, electrical or other equipment of any kind
which causes any such impairment or interference.  For purposes hereof, the term “EMI” shall
mean electromagnetic interference, and the term “Excessive EMI” shall mean EMI
at a level exceeding thirty (30) milligaus. 
Tenant, at Tenant’s sole cost and expense, promptly following its
receipt of notice from Landlord to the effect that the installation or manner
of operation of any equipment by Tenant is causing Excessive EMI in any portion
of the Building other than the Premises, shall take steps to bring such
Excessive EMI below thirty (30) milligaus in a manner that is appropriate, as reasonably
determined by Landlord.  Tenant shall not
install any equipment or operate any equipment in a manner which would result
in the electrical voltage and current distortion at the service switchboards of
any floor of the Building failing to be within the limits stated in IEEE 519.


 


(Q)                               Landlord shall have the right to prohibit
any advertising by any tenant mentioning the Building which, in Landlord’s
reasonable opinion, tends to impair the reputation of the Building or its
desirability as a building for offices, and upon written notice from Landlord,
tenants shall refrain from or discontinue such advertising.


 


(R)                                Except as otherwise agreed to in writing
by Landlord, Tenant shall not use or permit the use of the Premises for the
sale, lease, license or other delivery of electronic commerce services to any
tenants or occupants of the Building, including but not limited to, hardware
and software services that allow users to conduct business-to-business or
business-to-consumer services over networks utilizing, by way of example,
e-mail, electronic data interchange, data archiving, e-forms, electronic file 


 


E-3





















 


transfer,
facsimile transfer or similar services or any other services not expressly
permitted under the Lease.


 


(S)                                 No noise, including, but not limited to,
music or the playing of musical instruments, recordings, radio or television,
which, in the reasonable judgment of Landlord, might disturb other tenants in
the Building, shall be made or permitted by any tenant. Supplementing the
foregoing, Tenant shall not permit noise to emanate from the portions of the
Premises to any other portion of the Building (i) at a sound level that is
greater than NC-35 for constant noises (such as, for example, air-handling
equipment or transformers), (ii) at a sound level that is greater than
NC-30 for noises that are not constant noises, or (iii) that is at a sound
level in any one-third octave band which is greater than 5dB above both
adjacent one-third octave bands, in the range from 45 to 11,200 Hz.  Landlord and Tenant acknowledge that the
parties shall determine whether Tenant is meeting the parameters set forth in
this paragraph by obtaining one-third octave band noise measurements in a
fully finished tenant space or a fully finished common area that in either case
is outside of and adjacent to the Premises, using a Type I meter (per latest
ANSI Standard S1.4) on “Fast” response, at four (4) feet above the finished
floor and at least three (3) feet from any vertical surface. Nothing shall be
done or permitted in the premises of any tenant which would impair or interfere
with the use or enjoyment by any other tenant of any other space in the
Building.


 


(T)                                Landlord reserves the right to exclude
from the Building between the hours of 6:00 P.M. and 8:00 A.M. and at all hours
on non-business days all persons who do not present a pass to the Building
signed by a tenant.  Each tenant shall be
responsible for all persons for whom such pass is issued and shall be liable to
Landlord for all acts of such persons.


 


(U)                               The premises shall not be used for
lodging or sleeping or for any immoral or illegal purpose.


 


(V)                                The requirements of tenants will be
attended to only upon application at the office of the Building.  Building employees shall not perform any work
or do anything outside of their regular duties, unless under special
instructions from the office of Landlord.


 


(W)                           Canvassing, soliciting and peddling in
the Building are prohibited and each tenant shall cooperate to prevent the
same.


 


(X)                               There shall not be used in any space, or
in the public halls of any building, either by any tenant or by jobbers or
others, in the delivery or receipt of merchandise, any hand trucks, except
those equipped with rubber tires and side guards.  No hand trucks shall be used in passenger
elevators.


 


E-4





















 


(Y)                                Tenants, in order to obtain maximum
effectiveness of the cooling system, shall lower and/or close venetian or
vertical blinds or drapes when sun’s rays fall directly on windows of demised
premises.


 


(Z)                                Intentionally deleted.


 


(AA)                    All paneling, grounds or other wood
products not considered furniture shall be of fire retardant materials.  Before installation of any such materials,
certification of the materials’ fire retardant characteristics shall be
submitted to Landlord, or its agents.


 


Whenever and to the
extent that the above rules conflict with any of the rights or obligations of
Tenant pursuant to the provisions of the Articles of this Lease, the provisions
of the Articles shall govern.


 


E-5





















 


EXHIBIT F


 


CLEANING SPECIFICATIONS


 


SECTION 1.                                Regular Cleaning - done
nightly and as needed.


 


1.                                       Empty
and dust or wipe all cigarette ashtrays and urns nightly, and replace sand or
water as needed.


 


2.                                       Empty
all dry waste in wastepaper baskets nightly, and dust as needed.


 


3.                                       Sweep
and dust mop all uncarpeted private stairways and floors nightly.


 


4.                                       Vacuum
all exposed rugs and carpeted areas weekly, to be done in equal proportions
nightly.


 


5.                                       Dust
and wipe all glass and table tops nightly.


 


6.                                       Wash
clean all water fountain tops nightly.


 


7.                                       Dust
and wipe desk tops, furniture tops, fixtures and window sills within normal
reach, as needed.


 


8.                                       Clean
all slop sinks, slop closets, and store all cleaning equipment nightly.


 


9.                                       Lock
all entrance doors nightly after completion of cleaning.


 


SECTION 2.                                Periodic Cleaning -
done as specified.


 


1.                                       Wipe
clean normal amount of interior metal quarterly.


 


2.                                       Dust
door louvers and other ventilating louvers quarterly.


 


3.                                       Dust
venetian blinds quarterly.


 


4.                                       Clean
all windows, inside and outside, quarterly.


 


5.                                       Clean
normal amount, but in no event an amount in excess of 25% of interior
partitions, of interior and partition glass quarterly.


 


6.                                       High
dust pictures, frames, charts, graphs and similar wall hangings not reached in
nightly cleaning, overhead pipes and sprinklers quarterly.


 


F-1





















 


SECTION 3.                                Lavatory cleaning, other
than executive lavatories.


 


1.                                       Mop
floors nightly; polish mirrors, powder shelves, bright work (including
flushometers, piping, and toilet seat hinges), if not clean and bright,
nightly; wash sinks, urinals and bowls, nightly.


 


2.                                       Wash
both sides of all toilet seats with soap and water nightly.


 


3.                                       Wash
tile walls with a disinfectant monthly.


 


4.                                       Fill
and clean all soap, towel, toilet tissue and sanitary napkin dispensers as
needed, supplies therefor to be furnished by Landlord at a reasonable charge to
Tenant.  If the demised premises consists
of a part of a rentable floor, said charge to Tenant shall be that portion of a
reasonable charge for such supplies that is reasonably allocable to Tenant.


 


5.                                       Empty
and clean all wastepaper cans and other receptacles nightly.


 


6.                                       Wash
down tiled walls and enameled stalls from trim to floor once a month.


 


7.                                       Scrub
all floors as needed.


 


SECTION 4.                                Building Entrances –
Nightly;


 


1.                                       Sweep
and wash flooring.


 


2.                                       Wash
all rubber mats.


 


3.                                       Clean
all cigarette urns and replace sand or water necessary (sand to be furnished by
Owner or its contractors).


 


4.                                       Wash,
wax, and polish floors in elevator cabs, or vacuum clean if carpeted.


 


5.                                       Dust
and rub down walls, metal work and saddles in elevator cabs.


 


6.                                       Dust
all elevator doors, mail chutes and mail depository.


 


SECTION 5.                                Window Cleaning:


 


1.                                       Clean
Building entrance doors daily.  Clean all
windows inside and out approximately 4 times per year, weather and scaffolding
permitting.


 


2.                                       Clean
Building entrance lobby glass daily.


 


F-2





















 


3.                                       Clean
mail chute glass as necessary.


 


F-3





















 


EXHIBIT G


 


FORM OF LETTER OF CREDIT


 


	
   

  	
  Standby Letter of
  Credit No.

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Date of Issue:

  	
   

  	
   

  
	
   

  
	
  Issuing Bank:

  	
   

  	
   

  
	
   

  
	
  Beneficiary:

  	
  Applicant:

  
	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Amount: $

  	
   

  	
   

  	
   

  	
   

  	
   

  
													



 


Dear Sir/Madam:


 


We hereby issue in your
favor our irrevocable Letter of Credit under the above referenced number and
amount which is available against presentation of your draft drawn on us at
sight and bearing our Letter of Credit number
             .


 


The original Letter of
Credit plus any subsequent amendments thereto must accompany such draft when
presented for payment.  We hereby agree
with the Beneficiary that such drafts will be duly honored upon presentation to
us with the original Letter of Credit plus any subsequent amendments thereto
without any further investigation.


 


It is a condition of this
Letter of Credit that it shall be deemed automatically extended without
amendment for periods of one year each from the present or any future
expiration date hereof, unless thirty (30) days prior to any expiration date we
shall notify you in writing that we elect not to consider this Letter of Credit
renewed for any such additional period. 
After receipt by you of such notice, you may, until the expiration date
hereof, draw the full amount of the credit hereunder, against your draft.  The final expiry date hereof shall be no
earlier than         [thirty (30) days
following the Expiration Date].


 


Partial drawings under
this Letter of Credit are permitted.


 


This Letter of Credit is
transferable by the Beneficiary upon payment of our customary transfer charges
which shall be debited to the account of applicant.


 


G-1





















 


We hereby engage with you
that all drafts drawn under and in compliance with the terms of this
irrevocable letter of credit will be duly honored if presented at our counters
at [Insert address of a New York City branch] on or before the expiration date
indicated above.


 


This documentary credit
is subject to the International Standby Practices (“ISP98”) International
Chamber of Commerce (Publication No. 590), and as to matters not governed by
the ISP98, shall be governed by and construed in accordance with the laws of
the State of New York.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  (Name of Bank)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


G-2





















 


EXHIBIT H


 


PRE-APPROVED CONTRACTORS


 


(annexed hereto)


 


H-1





















 


TABLE OF DEFINED TERMS


 


	
  1st Rental Period

  	
  2

  
	
  2nd Rental Period

  	
  2

  
	
  3rd Rental Period

  	
  2

  
	
  AAA

  	
  21

  
	
  Alterations

  	
  25

  
	
  Antenna

  	
  87

  
	
  Antenna Area

  	
  87

  
	
  Applicable Comparative Year

  	
  14

  
	
  Arbiter

  	
  20

  
	
  Assignment Profit

  	
  51

  
	
  Audit Representative

  	
  20

  
	
  Base Cleaning Fee

  	
  14

  
	
  Base Cleaning Year

  	
  14

  
	
  Base Management Fee

  	
  13

  
	
  Base Rate

  	
  65

  
	
  Broker

  	
  79

  
	
  Building

  	
  1

  
	
  building project

  	
  10

  
	
  Cash Security

  	
  85

  
	
  Check Meters

  	
  24

  
	
  Cleaning Fee

  	
  14

  
	
  Commencement Date

  	
  1

  
	
  control

  	
  45

  
	
  Electricity Additional Rent

  	
  24

  
	
  Expense Base Factor

  	
  13

  
	
  Expense Payment

  	
  19

  
	
  Expenses

  	
  13

  
	
  Expiration Date

  	
  1

  
	
  Federal Reserve Funds

  	
  2

  
	
  Force Majeure Causes

  	
  69

  
	
  Hazardous Materials

  	
  83

  
	
  HVAC

  	
  71

  
	
  Interest Rate

  	
  65

  
	
  KW

  	
  24

  
	
  KWH

  	
  24

  
	
  Land

  	
  9

  
	
  Landlord

  	
  1, 65

  
	
  Landlord’s Cost

  	
  24

  
	
  Landlord’s Restoration Work

  	
  39

  
	
  Landlord’s Statement

  	
  19

  
	
  Landlord’s Work

  	
  5

  
	
  Legal Requirements

  	
  66

  
	
  LLC

  	
  44

  
	
  Management Fee

  	
  13

  
	
  Marketing Notice

  	
  47

  
	
  Material Alteration

  	
  26

  
	
  Other Communications Equipment

  	
  91

  
	
  Prior Year Cleaning Fee

  	
  14

  
	
  Records

  	
  20

  
	
  Rent Abatement Period

  	
  4

  
	
  Rent Commencement Date

  	
  4

  
	
  Roof User

  	
  88

  
	
  Rooftop Installations

  	
  88

  
	
  Rules and Regulations

  	
  67

  
	
  Security Letter

  	
  83

  
	
  Specialty Alterations

  	
  29

  
	
  Sublease Profit

  	
  51

  
	
  substantially

  	
  21

  
	
  substantially different from

  	
  50

  
	
  Successor Landlord

  	
  35

  
	
  Superior Leases

  	
  34

  
	
  Superior Lessor

  	
  34

  
	
  Superior Mortgagee

  	
  34

  
	
  Superior Mortgages

  	
  34

  
	
  Tenant

  	
  1, 67

  
	
  Tenant’s Affiliate

  	
  46

  
	
  Tenant’s Cost

  	
  52

  
	
  Tenant’s Property

  	
  29

  
	
  Tenant’s Property Removal Obligation

  	
  39

  
	
  Tenant’s Restoration Work

  	
  39

  
	
  Tenant’s Statement

  	
  20

  
	
  Tenant’s Work

  	
  6

  
	
  The Percentage

  	
  9, 13

  
	
  Union

  	
  14

  
	
  Wage Rate

  	
  14

  
	
  Wiring

  	
  87

  
	
  Work Credit

  	
  6, 7