Exhibit 10.32


 





















 


HISTORIC TW INC.,


 


 


Landlord


 


 


and


 


 


WARNER MUSIC GROUP INC.,


 


 


Tenant


 


 










 


LEASE


 










 


 


Dated: as of February 29, 2004


 


75 Rockefeller Plaza 

New York, New York


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE
  1

  	
  DEMISE,
  RENT AND DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2

  	
  USE,
  COMPLIANCE AND SIGNS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3

  	
  CONDITION
  OF PREMISES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4

  	
  TAX
  PAYMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5

  	
  OPERATING
  PAYMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6

  	
  SUBORDINATION
  TO MORTGAGES, LEASES AND DECLARATION OF RESTRICTIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7

  	
  QUIET
  ENJOYMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8

  	
  ASSIGNMENT,
  SUBLETTING AND MORTGAGING

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
  COMPLIANCE WITH LEGAL AND INSURANCE
  REQUIREMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
  INSURANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
  RULES AND REGULATIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
  ALTERATIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  	
  LANDLORD’S AND TENANT’S PROPERTY; REMOVAL
  AT END OF TERM

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14

  	
  REPAIRS AND MAINTENANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15

  	
  ELECTRIC ENERGY

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 16

  	
  HEAT, VENTILATION AND AIR CONDITIONING

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 17

  	
  OTHER SERVICES, SERVICE INTERRUPTION AND
  BUILDING DIRECTORY

  	
   

  



 


i





















 


	
  ARTICLE 18

  	
  ACCESS, NOTICE OF OCCURRENCES, WINDOWS,
  NAME OF BUILDING AND NO DEDICATION

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 19

  	
  NON-LIABILITY AND INDEMNIFICATION

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 20

  	
  DAMAGE OR DESTRUCTION

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 21

  	
  EMINENT DOMAIN

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 22

  	
  SURRENDER AND HOLDING OVER

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 23

  	
  DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 24

  	
  RE-ENTRY BY LANDLORD

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 25

  	
  DAMAGES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 26

  	
  WAIVERS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 27

  	
  CURING TENANT’S DEFAULTS AND COSTS OF
  ENFORCEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 28

  	
  BROKER

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 29

  	
  NOTICES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 30

  	
  ESTOPPEL CERTIFICATES AND MEMORANDUM OF
  LEASE

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 31

  	
  FORCE MAJEURE

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 32

  	
  CONSENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 33

  	
  RENT CONTROL

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 34

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 35

  	
  SIGNAGE

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 36

  	
  [INTENTIONALLY OMITTED.]

  	
   

  



 


ii





















 


	
  ARTICLE 37

  	
  ADDITIONAL SPACE .

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 38

  	
  LANDLORD RELOCATION OPTION

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 39

  	
  SUPERIOR LEASE

  	
   

  



 


iii





















 


EXHIBITS:


 


	
  Exhibit A - FLOOR PLANS OF PREMISES

  
	
   

  
	
  Exhibit B - LAND

  
	
   

  
	
  Exhibit C - [Intentionally omitted]

  
	
   

  
	
  Exhibit D - RULES AND REGULATIONS

  
	
   

  
	
  Exhibit E - CURRENT OVERTIME CHARGES

  
	
   

  
	
  Exhibit F - CLEANING SPECIFICATIONS

  
	
   

  
	
  Exhibit G - [INTENTIONALLY OMITTED]

  
	
   

  
	
  Exhibit H - ADDITIONAL FLOORS

  



 


iv





















 


EXECUTION
VERSION


 


LEASE, dated
as of February 29, 2004, between HISTORIC TW INC. (f/k/a Time Warner
Inc.), a Delaware corporation, having its principal office at 75 Rockefeller
Plaza, New York, New York 10019 (“Landlord”) and WARNER MUSIC GROUP INC.,
having an office at 75 Rockefeller Plaza, New York, New York 10019 (“Tenant”).


 


W  I  T  N
E  S  S  E  T  H :


 


ARTICLE 1


 


DEMISE, RENT AND DEFINITIONS


 


1.1                                 Landlord
hereby leases to Tenant, and Tenant hereby hires from Landlord, upon and
subject to all of the terms and conditions of this Lease, floors 7, 8, 12, 30
and 31 and the space in the concourse of the Building (the “Concourse Space”),
substantially as shown (by diagonal lines or shading) on the floor plans
attached hereto as Exhibit A (the “Premises”), in the building (the “Building”)
known by the street numbers 75 Rockefeller Plaza and 15 West 51st Street, New
York, New York, together with the non-exclusive right to use the common areas
of the Building for ingress to and egress from the Premises. The Building and
the land described in Exhibit B attached hereto (the “Land”) are collectively
called the “Property”. The parties agree that for all purposes of this Lease,
the Building shall be deemed to have a rentable area of 582,428 square feet and
the Premises other than the Concourse Space shall be deemed to have a total
rentable area of 82,266 square feet (the “Rentable Square Footage”), subject to
adjustment as provided in Article 37 hereof.


 


1.2                                 The
term of this Lease (“Term”) shall commence on the date hereof (“Commencement
Date”) and shall end at 11:59 p.m. July 30, 2014 (the


 





















 


“Expiration Date”) or on such
earlier date upon which this Lease shall terminate for any reason.


 


1.3                                 The
rents shall consist of:


 


(a)                                  fixed
rent (“Fixed Rent”) at the annual rate of:


 


(i)                                     for
the Concourse Space the product of 2,500 square feet (subject to adjustments as
provided in this subsection) and Fifteen and 00/100 ($15.00) Dollars from the
Commencement Date through and including the Expiration Date. Landlord and
Tenant agree that they will equally share the cost to have the Concourse Space
measured based on the standard in effect on the date hereof of the Real Estate
Board of New York and based on such measurement, the 2,500 square feet of the
Concourse Space will be adjusted and the Fixed Rent payable under this
subsection (i) will also be adjusted.


 


(ii)                                  the
product of the Rentable Square Footage and Thirty-Four and 42/100 ($34.42)
Dollars from the Commencement Date through and including December 31, 2008, and


 


(iii)                               the
product of the Rentable Square Footage and Thirty-Nine and 42/100 ($39.42)
dollars from January 1, 2009 through and including the Expiration Date, which
amounts shall be payable in equal monthly installments in advance on the first
day of each and every calendar month during the Term. Landlord and Tenant
acknowledge that the Rentable Square Footage will be subject to adjustment pursuant
to Article 37 hereof. Any references herein to the Square Footage or Rentable
Square Footage of the Premises or the Building, Tenant’s Tax Percentage (as
defined herein) or Wage Rate Multiple (as defined herein), are otherwise for
purposes of


 


2





















 


arbitrary formulas only, and not a representation as to the actual
square footage or actual percentage interest in the Building.


 


(b)                                 additional rent (“Additional
Charges”) consisting of all other sums of money that become due from Tenant and
payable to Landlord hereunder.


 


(c)                                  Tenant shall pay all
Fixed Rent and Additional Charges in lawful money of the United States to
Landlord and at the election of Landlord by (i) wire transfer to an account
designated by Landlord or (ii) by good and sufficient check (subject to
collection) drawn on a bank which is a member of the New York Clearinghouse at
Landlord’s address set forth above (attention: Accounts Receivable Department),
or such other place as Landlord shall hereafter designate by notice to Tenant.


 


1.4                                 Tenant
shall pay Fixed Rent and Additional Charges promptly when due without notice or
demand therefor and without any abatement, deduction or setoff for any reason
except as otherwise expressly provided in this Lease. Landlord shall have the
same remedies for default in payment of Additional Charges as Landlord has for
default in payment of Fixed Rent. If the Commencement Date or Expiration Date
occurs on a day other than the first or last day of a calendar month, as
applicable, Fixed Rent for the partial calendar month shall be prorated.


 


1.5                                 No
payment by Tenant or receipt or acceptance by Landlord of a lesser amount than
the correct Fixed Rent or Additional Charges 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


 


3





















 


Landlord may accept such check or payment without prejudice to Landlord’s
right to recover the balance or pursue any other remedy provided in this Lease
or at law.


 


1.6                                 If
Tenant fails to make any payment of Fixed Rent or Additional Charges within
five (5) days after the due date thereof, such unpaid amount shall bear interest
from the due date at a rate (“Lease Interest Rate”) equal to the lesser of (a) the rate announced by JPMorgan Chase Bank, or its
successor, from time to time as its prime or base rate (“Prime Rate”) plus 4%,
or (b) the maximum applicable rate allowed by law, from the date such amount
became due and payable to the date of payment thereof by Tenant. Such interest
shall be due and payable on demand.


 


1.7                                 The
following terms, whenever used in this Lease (including all Exhibits attached
hereto, all of which shall be deemed to be a part of this Lease), shall have
the meanings indicated:


 


(a)                                  The
term “Business Days” shall mean such Mondays, Tuesdays, Wednesdays, Thursdays
and Fridays that do not fall on the days celebrated as New Year’s Day, Martin
Luther King Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day,
Columbus Day, Veterans Day, Thanksgiving Day, day after Thanksgiving or
Christmas Day, or on such other days as may now or hereafter be celebrated as
holidays under the contract from time to time in effect between Locals 32B and
32J of the Building Service Employees Union AFL-CIO (or any successor thereto)
and the Real Estate Advisory Board of New York, Inc. (or any successor thereto)
or on which there is no regular United States postal service and the New York
Stock Exchange (or any successor thereto) is closed.


 


4





















 


(b)                                 The term “Business
Hours” shall mean 8:00 a.m. to 6:00 p.m. but only on Business Days.


 


(c)                                  The term “Calculation
Rate” shall mean the yield on U.S. Treasury Bonds with a maturity
closest to 10 years after the date on which a particular expense is incurred,
plus 2%.


 


(d)                                 The term “Insurance
Requirements” shall mean rules, regulations, orders and requirements of the New
York Board of Fire Underwriters, the New York Fire Insurance Rating
Organization and any other similar body performing the same or similar
functions, whether now or hereafter in force, and requirements of any insurance
policy maintained by Landlord at any time or of the issuer of such policy.


 


(e)                                  The term “Landlord”
shall mean only the owner at the time in question of the Building or of a lease
of the Building, so that in the event of any transfer or transfers of title to
the Building or of Landlord’s interest in a lease of the Building (as tenant
thereunder),whether by assignment or sublease of all or substantially all of
the Building, the transferor shall be relieved and freed of all obligations of
Landlord under this Lease accruing after such transfer, and such transferee
shall be deemed to have assumed and agreed to perform and observe all
obligations of Landlord under this Lease during the period it is the holder of
Landlord’s interest under this Lease, subject, however, to the provisions of
Article 19 and any other provisions of this Lease.


 


(f)                                    The term “Landlord-Related
Occupant” shall mean any one or more of (i) Landlord; (ii) any corporation or
other business entity which controls, is controlled by, or is under common
control with Landlord (a “Landlord Affiliate”); (iii) any corporation,
partnership, joint venture, or other entity in which Landlord or a


 


5





















 


Landlord Affiliate has an interest of 50% or more (other than Tenant),
or which has an interest of 50% or more in Landlord or a Landlord Affiliate;
and (iv) a person or entity unrelated to Landlord but with which Landlord or a
Landlord Affiliate has an ongoing business relationship.


 


(g)                                 The term “Legal
Requirements” shall mean laws and ordinances of federal, state, city, town,
county, borough and village governments and rules, regulations, orders and
directives of all departments, subdivisions, bureaus, agencies or offices
thereof, and of any other governmental, public or quasi-public authorities, and
the directions of any public officers pursuant to law, whether now or hereafter
in force.


 


(h)                                 The term “Tenant”
shall mean the original Tenant herein or any permitted assignee or other
successor in interest (immediate or remote) of the original Tenant herein named
that at the time in question is the owner of Tenant’s interest in this Lease.


 


(i)                                     The term “Tenant’s
Affiliate” shall mean any corporation or other business entity which controls,
is controlled by, or is under common control with Tenant.


 


(j)                                     The words “Tenant
indemnifies Landlord against liability,” “Tenant shall indemnify Landlord
against liability,” “Landlord indemnifies Tenant against liability” or “Landlord
shall indemnify Tenant against Liability” and words of similar import shall
mean that the indemnifying party agrees to indemnify, hold and save harmless
the indemnified party, each Superior Lessor and Superior Mortgagee (where
Landlord is the indemnified party), and their respective partners, directors,
officers,


 


6





















 


agents and employees from and against all loss, cost, liability, claim,
damage, fine, penalty and expense, including reasonable attorneys’ fees and
disbursements (whether incurred in resisting and defending any action or proceeding
or incurred in enforcing the indemnification rights of the indemnified party
against the indemnifying party), and that in case any action or
proceeding is brought against the indemnified party or any indemnified
person, the indemnifying party shall resist and defend such action or
proceeding by attorneys reasonably satisfactory to the indemnified party (it
being agreed that the attorney for the indemnifying party’s
insurers shall be deemed satisfactory to the indemnified party). The
indemnified party shall notify the indemnifying party promptly of any claim for
which indemnification may be sought, and will cooperate with the indemnifying
party and its insurers in the defense of any such claim. The indemnifying party
shall pay to the indemnified party upon rendition of bills or statements
therefor, an amount equal to all losses, costs, liabilities, claims, damages,
fines, penalties and expenses (i) incurred by the indemnified party or any
other indemnified person and (ii) for which the indemnifying party has
indemnified the indemnified party or any other indemnified person, but the
indemnified party shall in no event settle any third party claim without the
prior written consent of the indemnifying party, such consent not to be
unreasonably withheld. Nothing herein contained shall be deemed to require any
party to indemnify any other party against its own negligence or willful
misconduct, or against any consequential damages.


 


(k)                                  The term “untenantable”
shall mean a condition resulting in Tenant being unable to use all or a portion
of the Premises for the normal conduct of Tenant’s business.


 


7





















 


ARTICLE 2


 


USE, COMPLIANCE AND SIGNS


 


2.1                                 The
Premises shall be used and occupied by Tenant (and its permitted subtenants and
Tenant’s Affiliates) solely as general and executive offices, uses ancillary thereto and Identified Ancillary Uses.
All such uses must be in compliance with Legal Requirements. The Premises may
be used only for the benefit of Tenant’s employees or the employees of Tenant’s
permitted subtenants and Tenant’s Affiliates, in each case occupying any part
of the Premises and reasonable numbers of guests, of the foregoing.
Notwithstanding any provision herein to the contrary, the Concourse Space may
only be used for storage of files, records and office furniture. In no event
shall any of such uses be made available to employees of Tenant or Tenant’s
Affiliates who are not located at the Building (other than reasonable numbers
of senior executives) or to the general public. The following uses are intended
to benefit and to be ancillary to the use of the Premises and not to benefit
persons not located in the Premises, other than incidentally and in limited
numbers): (i) a dining facility located on the 32nd floor of the Premises (the “Dining
Room”); provided, that if cooking will be done (other than only
microwave cooking) (A) Tenant shall install all flues, vents, grease traps and
ansul systems and other similar items reasonably requested by Landlord, (B) Tenant
shall install an exhaust system that, in Landlord’s reasonable judgment, is
consistent with the standards of a first class office building in midtown
Manhattan, (C) all ducts and flues shall be installed within the Premises and
shall exit the Building from a location reasonably acceptable to Landlord, (D)
Tenant shall clean all grease traps as appropriate, (E) Tenant shall bag all
wet garbage, place such garbage in containers that prevent the escape of odors,
and provide for a refrigerated waste facility to store such garbage


 


8





















 


pending disposal and (F)
Landlord shall cause such Dining Room to be serviced on a regular basis by
the Building’s exterminator, and Tenant shall pay to Landlord within thirty (30)
days after demand, the cost of providing any additional extermination service
required by reason of such Dining Room; and further  provided
(whether or not cooking will be done), (v) Tenant shall not
allow any odors to escape from the Premises to other portions of the Building,
(w) Tenant shall otherwise maintain and operate the Dining Room
consistent with the standards of a first class office building in midtown
Manhattan, and (x) the entire floor on which such Dining Room is located and
the entire floor immediately above and the entire floor immediately below the
floor on which such Dining Room is located shall be fully leased by Tenant or
Tenant’s Affiliates; and (ii) Tenant may install music, sound or video
demonstration areas (a “Music  Room”) provided that (A) the entire
floor on which any music, sound or video demonstration areas of Tenant, its
subtenants or Tenant’s Affiliates are located and the entire floor immediately
above and the entire floor immediately below shall be fully leased by Tenant, its
subtenants or Tenant’s Affiliates and (B) no sound or vibration from such space
is detected elsewhere in the Building other than the Premises (the ancillary
uses described in clauses (i)-(ii) above are called the “Identified
Ancillary Uses”)). Notwithstanding anything in this Lease to the contrary,
Tenant shall be responsible for complying with all Legal Requirements
applicable to the use of the Premises for the Identified Ancillary Uses
(including, without limitation, any structural and nonstructural alterations to
the Premises or Building required by such Legal Requirements) and for
obtaining, at Tenant’s sole cost and expense, all consents, approvals and
permits (including, without limitation, any amendment to the certificate of
occupancy for the


 


9





















 


Building and any public assembly permit) required by reason of any such
use and Landlord makes no representation to Tenant as to the suitability of the
Premises for any of the Identified Ancillary Uses. Landlord, at Tenant’s
expense, shall cooperate with Tenant’s efforts to obtain any such consents,
approvals and permits, including, without limitation, executing and delivering
any documents or instruments reasonably required by Tenant in connection
therewith. Nothing in this Section which permits the Premises or any part
thereof to be used for Identified Ancillary Uses shall be interpreted to mean
that Tenant is permitted to make any Alterations other than in compliance with
all of the terms and conditions set forth in this Lease including the
requirement to obtain Landlord’s prior consent, where required.


 


2.2                                 If
any governmental license or permit is required for the proper and lawful
conduct of Tenant’s business in the Premises, Tenant, at its expense, shall procure
and 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. Tenant shall not use, or suffer or permit any
person to use, the Premises, or any part thereof, in any manner which (a)
violates the certificate of occupancy for the Premises or for the Building or
any other permit or license issued pursuant to any Legal Requirements, (b)
causes injury to the Building, (c) constitutes a violation of the Legal
Requirements or Insurance Requirements pursuant to Article 9 hereof, (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, or (f) annoys or inconveniences other
tenants of the Building.


 


10





















 


2.3                                 In
addition to the limitations set forth in Section 2.2, Tenant shall not use,
suffer or permit any person to use the Premises or any part thereof for: sale
or rental to the public of any products or materials; financial services to the
public such as those provided by a commercial bank, trust company, savings
bank, safe deposit or savings and loan association or other lender; issuance or
sale to the public of traveller’s checks, foreign drafts, letter of credit,
foreign exchange or domestic money orders; receipt of money for transmission
from the public; data processing services rendered primarily to others than
Tenant and which are not strictly ancillary to Tenant’s business; stock
brokerage board room; school; broadcasting center for communications firms;
reservation center for airlines or for travel agencies; public auction; or as
an office for any of the following: (a) employment agency, (b) foreign
government or political subdivision thereof, (c) governmental bureau or agency
of the United States or any state or political subdivision thereof, (d) health
care professional, (e) clerical support business, or (f) union; nor shall
Tenant use, suffer or permit any person to use the Premises or any part thereof
for any other use or purpose that (i) in the reasonable judgment of Landlord is
not in keeping with the character and dignity of the Building or (ii)
predominantly involves direct patronage of the general public not incidental to
the Tenant’s business.


 


Unless it is an affiliate of Historic TW Inc., neither Tenant nor any
occupant of the Premises shall use the words “Time Warner”, “Historic TW Inc.”,
“Warner Bros.”, “Time”, “Warner”, “AOL”, or “America Online”, or any
combination or simulation thereof, or any other business or trade name from
time to time used by Time Warner Inc. or its subsidiaries, for any purpose
whatsoever, including (but not limited to) as or for any corporate, firm or
trade name, trademark or designation or description of


 


11





















 


merchandise or services, or as Tenant’s business address; provided that
the foregoing restriction shall not be deemed to apply to (i) any trade name
currently used by Tenant which is hereafter adopted by Landlord and (ii) Tenant’s
current name “Warner Music Group, Inc.” Neither Tenant nor any occupant of the
Premises shall use the words “Rockefeller”, “Center” or “Radio City”, or any
combination or simulation thereof, for any purpose whatsoever, including (but
not limited to) as or for any corporate, firm or trade name, trademark or
designation or description of merchandise or services, or as Tenant’s business
address; provided that the foregoing restriction shall not be deemed to apply
to any trade name currently used by Tenant which is hereafter adopted by
Landlord. Notwithstanding the foregoing, Tenant may use “75 Rockefeller Plaza”
as its business address so long as Landlord is permitted to use such
designation for the Building by Rockefeller Center, Inc. and its successors and
by the City of New York and the United States Postal Service, provided that (a)
Tenant will not use the words “Rockefeller Plaza” except in a conventional
manner and without emphasis as part of its business address, and (b) whenever
such address is used by Tenant other than on stationery, Tenant will also
indicate that the other address for the Building is 15 West 51st Street.
Notwithstanding any provision herein to the contrary, Tenant may utilize such
trade names as are permitted under the WCI Trademark Agreement between Warner
Communications Inc. and WMG Acquisition Corp.


 


2.4                                 Subject
to Article 35 hereof, Tenant may not place signs anywhere in the Property,
including on the exterior of the Building, without the prior consent of
Landlord, except for a sign on Tenant’s interior entry doors which shall be
approved by Landlord in advance of the placement thereof, such approval not to
be unreasonably


 


12





















 


withheld or delayed. Consent will not be required for signs within the
Premises which are not visible from outside the Premises.


 


ARTICLE 3


 


CONDITION OF PREMISES


 


3.1                                 Tenant
hereby agrees to accept the Premises in its current condition, “as is,” without
requiring any improvements or decorations to be made by Landlord. Tenant
acknowledges that it has been in occupancy of the Premises prior to the date
hereof and is fully familiar with the condition of the Premises.


 


ARTICLE 4


 


TAX PAYMENTS


 


4.1                                 For
the purposes of this Article and other provisions of this Lease:


 


(a)                                  (1)                                  The term “Taxes”
shall mean the aggregate amount of all real estate and personal property taxes
and any general or special assessments (excluding penalties and late interest
thereon but including interest on assessments payable in installments) assessed
or imposed upon or in respect of the Property, including (i) taxes and
assessments in respect of any air rights or development rights now or hereafter
appurtenant to, or used in connection with the construction of, the Building,
(ii) fees, taxes and charges in respect of any vaults, vault space or other
space within or outside the boundaries of the Land, (iii) Business Improvement
District assessments and other assessments for public improvements or benefits
to the Building, the Land, or the locality in which the Land is situated, and
(iv) taxes, assessments and charges in respect of any fixtures, equipment,
facilities, systems or personal property of Landlord serving or


 


13





















 


used exclusively in connection with the Building or the Land, and shall
also include all Tax Expenses (as hereinafter defined).


 


(2)                                  All income, estate,
succession, inheritance, gift, transfer, franchise profit, use, occupancy,
gross receipts, rental, capital gains, capital stock and income taxes of
Landlord shall be excluded from Taxes; provided, however, that if the method of
taxation of real estate is changed and as a result thereof any other tax or
assessment, however denominated, including any franchise, income, profit, use,
occupancy, gross receipts or rental tax, shall be imposed upon Landlord or the
owner of the Property or the rents or income there from, in substitution for or
in addition to, in whole or in part, any of the taxes or assessments listed in
the preceding sentence, such other tax or assessment shall be included in and
deemed part of Taxes, but calculated for this purpose as if the Property and
all appurtenances thereto (including development rights) were the only property
of Landlord.


 


(3)                                  The amount of any
special assessments for public improvements or benefits to be included in Taxes
for any year (and such installments shall be the maximum permissible amount
thereof), in the case where the same may at the option of the taxpayer be paid
in installments, shall be limited to the amount of the installment due in
respect of such year, together with any interest payable in connection
therewith (other than interest or penalties payable by reason of the delinquent
payment of such installments).


 


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(b)                                 The term “Tax Year”
shall mean each period from July 1 through June 30 (or such other fiscal period
as may hereafter be adopted by the City of New York as the fiscal year for any
tax, levy or charge included in Taxes).


 


(c)                                  The term “Base Tax
Year” shall mean the Tax Year July 1, 2004 through June 30, 2005.


 


(d)                                 The term “Tax Expenses”
shall mean all reasonable expenses, including attorneys’ fees and disbursements
and experts’ and other witnesses’ fees and disbursements, incurred by Landlord
in seeking to reduce the amount of any assessed valuation of the Land and/or
the Building, in contesting the amount or validity of any Taxes, or in seeking
a refund of any Taxes.


 


(e)                                  The term “Tenant’s
Tax Percentage” shall mean 14.12466%, subject to adjustment as provided in
Article 37 hereof.


 


4.2                                 If
Taxes for any calendar year during the Term are greater than Taxes for the Base
Tax Year, Tenant shall pay to Landlord Tenant’s Tax Percentage of such excess.
Such payments shall be made as provided in Section 4.3. Payments with respect
to any partial Tax Year which falls within the Term shall be appropriately pro
rated.


 


4.3                                 Landlord
shall give Tenant, prior to or after commencement of each calendar year, a
notice setting forth Landlord’s reasonable estimate of the payments to be made
by Tenant on account of Taxes during such year. Tenant shall make such payments
in installments in the same manner that Taxes for such Tax Year are due and
payable by Landlord, whether to the City of New York or to a Superior Lessor or
Superior Mortgagee. Such payment will be retroactive to the later to occur of
the


 


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Commencement Date or the first
month of such calendar year if Landlord’s notice is given after the
commencement of such calendar year, provided, however, that if payments to be
made by Tenant on account of Taxes are retroactive to the Commencement Date and
the Commencement Date is other than the first day of the month in which the
same occurs, then any such payments in respect of the month in which the
Commencement Date occurs shall be prorated). Landlord may amend such estimate
by notice given to Tenant from time to time to reflect additional information
about Taxes that comes to Landlord’s attention or to correct any error made in
any prior estimate; said notice may require an increase in monthly payments or
a separate individual payment and Tenant’s payments shall be adjusted or made
as provided in said notice. Promptly after receipt by Landlord of bills for
such Taxes, Landlord shall give Tenant copies thereof and the computation of
Tenant’s payment on account thereof, and (i) in the event of a deficiency,
Tenant shall pay to Landlord the amount thereof within fifteen (15) Business
Days after demand therefor, or (ii) in the event of an overpayment, Landlord
shall promptly refund to Tenant the amount thereof.


 


4.4                                 If
Landlord receives a refund of Taxes for any Tax Year, Landlord shall either pay
to Tenant Tenant’s Tax Percentage of the net refund after deducting from such
refund the costs and expenses of obtaining same (to the extent that such costs
and expenses were not included in Tax Expenses); provided, however, such
payment or credit to Tenant shall in no event exceed Tenant’s Tax Payment paid
for such Tax Year. Only Landlord shall be authorized to contest Taxes.
Notwithstanding any provision herein to the Contrary, Tenant shall not be
responsible for any Tax Payment payable under this


 


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Article that is not billed to Tenant within two (2) years after
Landlord makes the corresponding payment of taxes.


 


ARTICLE 5


 


OPERATING PAYMENTS


 


5.1                                 For
each Operating Year (as hereinafter defined) during the Term of this Lease,
Tenant shall pay, as additional rent, the Operating Payment (as hereinafter
defined) for such Operating Year, in accordance with the further provisions of
this Section.


 


(a)                                  For purposes hereof
the following definitions shall apply:


 


(i)                                     The term “Operating
Year” shall mean the calendar year in which the Term of this Lease
commences and each succeeding calendar year thereafter.


 


(ii)                                  The term “Wage
Rate” shall mean the undiscounted regular hourly wage rate payable to or in
respect of Porters (as hereinafter defined) of Class A office buildings in New
York County, in effect as of January 1 of the Operating Year in question,
pursuant to agreement(s) (herein individually or collectively called “Agreement”)
between the Real Estate Advisory Board on Labor Relations, Incorporated (“RAB”)
and Local 32B-32J of the Service Employees International Union, AFL-CIO (“Local
32B-32J”) (or, if either or both of such entities is not in existence or
acting in respect of such matters, then, by any successor(s) or substitute(s)
performing similar functions).


 


(iii)                               The term “Class A
office buildings” shall mean the class of office buildings defined as such
under the current Agreement with Local 32B-32J.


 


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(iv)                              The term “regular
hourly wage rate” shall include all payments of every kind (excluding,
however, fringe benefits) then payable to or in respect of Porters, computed on
the basis of the total undiscounted annual amount payable to or in respect of
Porters pursuant to the Agreement, provided, however, if any union agreement
shall require the regular employment of Porters on days or during hours when
overtime or other premium pay rates are in effect, then the “regular hourly
wage rate,” as used above and subject to the other adjustments provided for
herein, shall be deemed to mean the actual weekly wage rate, divided by the
actual hours in a calendar week during which Porters are required to be
employed (if, for example, as of the Commencement Date, an agreement between
RAB and Local 32B-32J shall require the regular employment of Porters for forty
(40) hours during a calendar week at a minimum hourly wage rate of $3.00 for
the first thirty (30) hours, and premium or overtime hourly wage rate of $4.50
for the remaining ten (10) hours, the minimum regular hourly wage rate under
this Article 38B, as of the Commencement Date, shall be deemed to be the total
weekly wage rate of $135.00 divided by the total number of required hours of
employment, forty (40), or $3.375). If no Agreement shall be in effect as of
any such January 1 with reference to which the regular hourly wage rate for
Porters is to be determined, then the applicable computations and payments
under this Lease shall be made upon the basis of the regular hourly wage rate
(determined in accordance with the preceding provisions of this Article) being
paid by Landlord or by the contractor performing the cleaning services for
Landlord on such January 1 to or in respect of Porters, and thereafter
appropriate retroactive adjustment shall be made when the regular hourly wage
rate payable to or in respect of such Porters is determined pursuant to


 


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Agreement. For the purposes hereof, if the regular hourly wage rate of
Porters shall increase during
any Operating Year the regular hourly wage rate “in effect as of January 1” of
such Operating Year shall be adjusted for the portion of the year for which the increase shall be effective.
The Wage Rate and Base Wage Rate shall be calculated by dividing the annual
undiscounted cost for a Porter receiving the regular hourly wage rate, by the
number of hours that a Porter is expected to work in the calendar year
involved. In determining said number of hours, Landlord’s management may make
reasonable estimates of the average number of days or hours not worked by an
average Porter, where such days or hours are not specified by, or vary with
individual circumstances pursuant to, the union contract. In calculating the
regular hourly wage rate Landlord shall apply such procedures and practices as
are generally applied in such calculations by the owners of Class A office
buildings in the midtown area of the Borough of Manhattan, City and State of
New York, and any dispute or controversy as to or relating to the calculation
of the “Wage Rate” shall be determined by arbitration, which arbitration shall
be by three arbitrators each of whom shall have at least ten years’ experience
in the supervision of the operation and management of Class A office buildings
in Manhattan.


 


(v)                                 The term “Porters”
shall mean that classification of employee engaged in the general maintenance
and operation of office buildings classified as “others” in the current Agreement,
or failing such classification in any subsequent Agreement, the most nearly
comparable classification in such Agreement.


 


(vi)                              The term “Base Wage
Rate” shall mean the Wage Rate in effect as of January 1, 2004.


 


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(b)                                 The term “Wage Rate
Multiple” shall mean 82,266, but subject to adjustment as provided in
Article 37 hereof.


 


(c)                                  In the event that the
Wage Rate in effect as of the January 1 of any Operating Year shall exceed the
Base Wage Rate, Tenant shall pay to Landlord, as Additional Charges for such
Operating Year, an amount (the “Operating Payment”) equal to the
product obtained by multiplying (a) the number of cents (including any fraction
of a cent) by which the Wage Rate exceeds the Base Wage Rate, by (b) the Wage
Rate Multiple. By or after the start of the Operating Year commencing January
1, 2003 and by or after the start of each Operating Year thereafter, Landlord
shall furnish to Tenant an Escalation Statement relating to such Operating Year
and a statement of the Base Wage Rate, showing the escalation, if any, which
shall be due hereunder from Tenant to Landlord and the additional rent then
payable by Tenant to Landlord shall be paid as provided below. The obligation
of Tenant to pay additional rent pursuant to this Section is not predicated
upon the rendition by Landlord of any cleaning service to the Premises or upon
the employment by Landlord of Porters or cleaners or by the application to
Landlord or to the Building of the collective bargaining agreements referred to
above. Tenant acknowledges that the payment of Additional Charges to Landlord
pursuant to the provisions of this Section is intended to be an escalation
payment to provide additional rent to Landlord and is not a measurement of
actual increased costs incurred by Landlord in the operation of the Building.


 


5.2                                 Any
such adjustment payable by reason of the provisions of this Section shall
commence to be payable in equal monthly installments, as of the first day of
the period for which the Wage Rate shall exceed the Base Wage Rate, and after
Landlord


 


20





















 


shall furnish Tenant with an Escalation Statement relating to such
Operating Year, all monthly installments of rental shall reflect one-twelfth of
the annual amount of such adjustment until a new adjustment becomes effective
pursuant to the provisions of this Section; provided, however, that if said
Escalation Statement is furnished to Tenant after the commencement or effective
date of any change in the Wage Rate, there shall be promptly paid by Tenant to
Landlord, an amount equal to the portion of such adjustment allocable to the
period prior to the date upon which said Escalation Statement is furnished to
Tenant. In the event that the Wage Rate shall be changed or shall change more
frequently than once a year, the adjustment hereunder shall similarly be made
by Landlord in a supplemental Escalations Statement furnished by Landlord to
Tenant, so as to reflect such change in the monthly installments due hereunder,
and the effective date of each such change. Notwithstanding anything herein to
the contrary, Tenant shall not be responsible for payment of any Operating
Payment payable under this Article that is not billed to Tenant within one (1)
years after the expiration of the appropriate calendar year.


 


ARTICLE 6


 


SUBORDINATION TO MORTGAGES, 

LEASES AND DECLARATION OF RESTRICTIONS


 


6.1                                 (a)                                  This
Lease and all rights of Tenant hereunder shall be subject and subordinate to
all ground leases, overriding leases and underlying leases of the Land and/or
the Building now or hereafter existing and to all mortgages now or hereafter
existing affecting the Land and/or the Building and/or any of such leases,
whether or not such mortgages 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


 


21





















 


renewals, modifications, replacements and extensions of such leases and
mortgages, and spreaders and consolidations of such mortgages. This Section
shall be self-operative and no further instrument of
subordination or priority (as described in the first sentence of this Section)
shall be required. In confirmation of such subordination or priority Tenant
shall promptly execute, acknowledge and deliver any instrument that Landlord,
the Lessor under any such lease or the holder of any such mortgage may
reasonably request to evidence such subordination or
priority; and if Tenant fails to execute, acknowledge or deliver any such
instrument within ten (10) days after request therefor, Tenant hereby
irrevocably constitutes and appoints Landlord as Tenant’s attorney-in-fact,
coupled with an interest, to execute and deliver such instrument on behalf of
Tenant. Any lease to which this Lease is subject and subordinate is herein
called a “Superior Lease,” and the Lessor of a Superior Lease is herein called
a “Superior Lessor.” Any mortgage to which this Lease is subject and
subordinate is herein called a “Superior Mortgage” and the holder of a Superior
Mortgage is herein called a “Superior Mortgagee.”


 


(b)                                 Landlord agrees to
make a reasonable effort to obtain from the Superior Lessor and the Superior
Mortgagee for the benefit of Tenant an agreement, in recordable form, to the
effect that if such Superior Lessor or Superior Mortgagee or any successor or
assign of such Superior Lessor or Superior Mortgagee shall take any action to
enforce it’s rights, or if such Superior Lease shall terminate or be terminated
by reason of a default by the tenant thereunder, then, provided no Event of
Default shall have occurred and then be continuing hereunder, such Superior
Lessor, Superior Mortgagee, or such successor or assign, as the case may be,
will not make Tenant a party defendant to, or otherwise name or join Tenant in,
such action and, upon termination of


 


22





















 


such Superior Lease, will recognize Tenant as the direct tenant of such
landlord or such successor or assign, as the case may be, on the same terms and
conditions as are contained in this Lease, except that such Superior Lessor,
Superior Mortgagee or successor or assign shall not be (i) liable for any
previous act or omission of Landlord under this Lease, (ii) subject to any
offsets or defenses, not expressly provided in this Lease, which theretofore
accrued to the Tenant against Landlord, (iii) liable for any security deposited
by Tenant which has not been transferred to such holder, (iv) bound by any previous
prepayment of more than one month’s rent, other than overpayments in respect of
Taxes or Operating Expenses, (v) bound by any covenant to undertake or complete
any construction of the Premises or any portion thereof demised by this Lease,
(vi) bound by an obligation to make any payment to, or on behalf of, the Tenant
or provide any services or perform any repairs, maintenance or restoration
provided for under this Lease to be performed before the date that such holder
succeeded to the interest of Landlord under this Lease or bound by any
obligation to make any payment to Tenant with respect to construction performed
by, or on behalf of, Tenant at the Premises, and (vii) bound by any obligation
to repair, replace, rebuild or restore the Premises demised in the event of
damage by fire or other casualty, or in the event of partial condemnation, in
any such case in excess of the insurance proceeds or condemnation award
actually collected by such holder.


 


6.2                                 If any act or omission
of Landlord 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 until (a) Tenant gives notice of
such act or omission to Landlord and to each Superior Mortgagee and Superior


 


23





















 


Lessor whose name and address were previously furnished to Tenant, and (b) a reasonable period of time for
remedying such act or omission elapses following the time when such Superior
Mortgagee or Superior Lessor becomes entitled under such Superior Mortgage or
Superior Lease to remedy same (which reasonable period shall in no event be less than the period to
which Landlord is entitled under this Lease or otherwise, after similar notice,
to effect such remedy). Tenant is hereby advised that the Superior Lessor is 75
Plaza LLC, with an address c/o Park Lane Investments LLC, 240 Greenwich Avenue,
Greenwich, Connecticut 06830 and the Superior Mortgagee is German American Capital
Corporation with an address at 31 West 52nd Street, New York, New York 10019.


 


6.3                                 Tenant
covenants and agrees that if for any reason a Superior Lease (including a
Superior Lease through which Landlord derives its leasehold estate in the
Premises) is terminated, or if the holder of a Superior Mortgage succeeds to
the interest of Landlord hereunder, then at the option of the then holder of
the reversionary interest in the Premises demised by this Lease, Tenant will
attorn to such holder and will recognize such holder as the Tenant’s Landlord
under this Lease, except that such holder shall not be (i) liable for any
previous act or omission of Landlord under this Lease, (ii) subject to any
offsets or defenses, not expressly provided in this Lease, which theretofore
accrued to the Tenant against Landlord, (iii) liable for any security deposited
by Tenant which has not been transferred to such holder, (iv) bound by any
previous prepayment of more than one month’s rent, other than overpayments in
respect of Taxes or Operating Expenses, (v) bound by any covenant to undertake
or complete any construction of the Premises or any portion thereof demised by
this Lease, (vi) bound by


 


24





















 


any obligation to make any payment to, or on behalf of, the Tenant or
provide any services or perform any repairs, maintenance or restoration
provided for under this Lease to be performed before the date that such holder
succeeded to the interest of Landlord under this Lease or bound by any
obligation to make any payment to Tenant with respect to construction performed
by, or on behalf of, Tenant at the Premises, and (vii) bound by any obligation
to repair, replace, rebuild or restore the Premises demised in the event of
damage by fire or other casualty, or in the event of partial condemnation, in
any such case in excess of the insurance proceeds or condemnation award
actually collected by such holder. Tenant agrees to execute and deliver, at any
time and from time to time, upon the request of Landlord or of the Lessor under
any such Superior Lease or holder of any Superior Mortgage any instrument which
may be necessary or appropriate to evidence such attornment and Tenant hereby
appoints Landlord or such Lessor under such Superior Lease or holder of a
Superior Mortgage the attorney-in-fact, irrevocable, of the Tenant to execute
and deliver for and on behalf of Tenant any such instrument. Tenant further
waives the provision of any statute or rule of law now or hereafter in effect
which may give or purport to give the Tenant any right of election to terminate
this Lease or to surrender possession of the Premises in the event any
proceeding is brought by the Lessor under any Superior Lease or holder of a
Superior Mortgage to terminate the same, and agrees that unless and until such
Lessor, in connection with any such proceeding, shall elect to terminate this
lease and the rights of Tenant hereunder, this Lease shall not be affected in
any way whatsoever by any such proceeding.


 


6.4                                 If
any prospective or actual Superior Mortgagee or Superior Lessor requires any
modification of this Lease, Tenant shall, upon notice thereof from Landlord,


 


25





















 


promptly execute and deliver to Landlord the instrument accompanying
said notice from Landlord to effect such modification if such instrument does
not except to a de minimis extent adversely affect Tenant’s rights under this
Lease and does not increase except to a de minimis extent Tenant’s obligations
under this Lease.


 


6.5                                 Tenant
hereby irrevocably waives all rights it has, if any, in connection with any
zoning lot merger or transfer of development rights in respect of the Property,
including any rights it has to be a party to, to contest, or to execute, any
declaration of restrictions which would cause the Property to be merged with
any other zoning lot. This Lease shall be subject and subordinate to any
declaration of restrictions or any other document of similar nature and purpose
now or hereafter affecting the Property. In confirmation of such waiver and
subordination, Tenant shall promptly execute, acknowledge and deliver any
instrument that Landlord reasonably requests.


 


ARTICLE 7


 


QUIET ENJOYMENT


 


7.1                                 So
long as Tenant pays all Fixed Rent and Additional Charges and performs all of
Tenant’s other obligations under this Lease, in each case within the periods
after notice (if any) and grace provided for in this Lease, Tenant shall
peaceably and quietly have, hold and enjoy the Premises without hindrance,
ejection or molestation by Landlord or any person lawfully claiming through or
under Landlord, subject to the provisions of this Lease and to any Superior
Leases and Superior Mortgages. This covenant shall be construed as a covenant
running with the Land and shall not be construed as a personal covenant of
Landlord except to the extent of Landlord’s interest in this Lease.


 


26





















 


7.2                                 Landlord
shall indemnify Tenant against any loss,
damage or expense which
Tenant may suffer or incur if Tenant is evicted from the Premises as the result
of Landlord’s default under any Superior Lease not caused by a default by Tenant under this Lease.


 


ARTICLE 8


 


ASSIGNMENT, SUBLETTING AND
MORTGAGING


 


8.1                                 Tenant
shall not, voluntarily, involuntarily, by operation of law or otherwise, except
as provided in Article 8 hereof: (a) assign or otherwise transfer this Lease,
(b) sublet the Premises or any part thereof, or allow same to be used, occupied
or utilized by any person other than Tenant or (c) mortgage, pledge, encumber
or otherwise hypothecate this Lease. Notwithstanding the foregoing, Tenant may
permit Tenant’s Affiliates to occupy portions of the Premises, subject to all
applicable provisions of this Lease. Tenant will promptly advise Landlord in
writing of the identity of all Tenant’s Affiliates who begin or terminate
occupancy of any portion of the Premises.


 


8.2                                 (a)


 


(i)                                     If
and so long as Tenant is a corporation, a partnership, a limited liability
company or other entity, the following shall be deemed to be an assignment of
this Lease under Section 8.1, prohibited by said Section: one or more sales or
transfers of stock, partnership interests, membership interests or equity
interests, voluntarily, involuntarily, by operation of law or otherwise, or the
issuance of new stock, partnership interests, membership interests or equity
interests, by which an aggregate of more than 49% of Tenant’s stock,
partnership interests, membership interests or equity interests, directly or
indirectly, by sale of an interest in Tenant or that of any of Tenant’s
Affiliates, shall be vested in a party or parties who are not


 


27





















 


stockholders, partners or members as of the date hereof; provided
however, that if following such transaction, Tenant will meet the Financial
Test (as defined herein), Landlord’s consent thereto will not be unreasonably
withheld or delayed.


 


(ii)                                  The
sale of all or substantially all of Tenant’s assets which results in a Tenant
failing to meet the Financial Test, notwithstanding that the Tenant under this
Lease after such sale is the same Tenant under this Lease as prior to such
sale, shall be deemed an assignment of this Lease whether such sale is made by
one or more transactions.


 


(iii)                               This
Section shall not apply to transactions with a corporation, partnership,
limited liability company or entity into or with which Tenant is merged or
consolidated or to which substantially all of Tenant’s assets are transferred
or to any corporation, partnership or limited liability company which controls
or is controlled by Tenant or is under common control with Tenant if (x) the
successor to Tenant meets the Financial Test, and (y) proof satisfactory to
Landlord that Tenant meets the Financial Test is delivered to Landlord at least
ten (10) days prior to the effective date of any such transactions. The
provisions of this Section shall not apply to and Landlord’s consent shall not
be required in connection with, sales or transfers by persons other than “insiders”
in the shares of any corporation all the outstanding voting stock of which is
listed on a national securities exchange (as defined in the Securities Exchange
Act of 1934, as amended) or is traded in the over-the-counter market with
quotations reported by the National Association of Securities Dealers through
its automated system for reporting quotations.


 


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(b)                                 (i)                                     As
used herein the term “Financial” Test shall mean a Leverage Ratio (as defined
herein) of less than 3.5.


 


(ii)                                  “Leverage
Ratio” of Tenant or Qualified Guarantor (as defined herein), as the case might
be, means a ratio, determined as of the end of the most recent fiscal period
for such entity for which financial statements prepared in accordance with GAAP
(as defined herein), certified by a financial officer of such entity as fairly
presenting the financial condition and results of operations of such entity have been
delivered to Landlord, of: (x) consolidated indebtedness (including, without
limitation, all guarantees, capital leases and mandatorily redeemable preferred
stock, but excluding undrawn letters of credit) net of aggregate unrestricted
cash and cash equivalents of Tenant or Qualified Guarantor and its Subsidiaries
in excess of $50,000,000; provided  that in no event shall
indebtedness determined pursuant to this clause (x) in respect of any
calculation of the Leverage Ratio be reduced by more than $200,000,000 on the
basis of unrestricted cash and cash equivalents, to (y) the sum of (a) net
income for such entity for the latest 12 months or four quarters reflected in
such certified financial statements and, to the extent reflected as a charge in
the calculation of such net income, (b) interest expense, (c) provisions for
taxes, and (d) depreciation and amortization expense.


 


8.3                                 If
this Lease is assigned, whether or not in violation of the provisions of this
Lease, Landlord may collect rent from the assignee. If the Premises or any part
thereof is sublet or occupied by any person 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,


 


29





















 


Landlord may apply the net amount collected to Fixed Rent and
Additional Charges herein reserved, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver of any of the provisions of
this Article, 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 any assignment,
mortgaging, subletting or occupancy by others shall not relieve Tenant of the
obligation to obtain the consent of Landlord to any other or further
assignment, mortgaging, subletting or occupancy by others not expressly
permitted by this Article.


 


8.4                                 Any
assignment or transfer, whether or not Landlord’s consent is required, shall be
made only if and shall not be effective until the assignee executes,
acknowledges and delivers to Landlord an agreement in form and substance
reasonably satisfactory to Landlord whereby the assignee assumes the
obligations of Tenant under this Lease and whereby the assignee agrees that the
provisions of this Article shall, notwithstanding such assignment or transfer,
continue to be binding upon it in respect of all future assignments and
transfers. Notwithstanding any assignment or transfer, whether or not in
violation of the provisions of this Lease, and notwithstanding the acceptance
of Fixed Rent or Additional Charges by Landlord from an assignee, transferee,
or any other person, the original Tenant herein named and any and all
successors in interest of the original Tenant herein named shall remain fully
liable (jointly and severally with any immediate or remote successor in
interest, including the then Tenant) for the payment of Fixed Rent and
Additional Charges and for the other obligations of Tenant under this Lease.


 


30





















 


8.5                                 The
liability under this Lease of the original Tenant herein named and any
immediate or remote successor in interest of the original Tenant herein named
shall not be discharged, released or impaired in any respect by any agreement
or stipulation made by Landlord with the then Tenant extending the time of, or
modifying any of the obligations under, this Lease, or by any waiver or failure
of Landlord to enforce any of the obligations of Tenant under this Lease.


 


8.6                                 Neither
the listing of any name other than that of Tenant, whether on the door of the
Premises or the Building directory, or otherwise, nor the acceptance by
Landlord of any check drawn by a person other than Tenant in payment of Fixed
Rent or Additional Charges, shall operate to vest in any person any right or
interest in this Lease or in the Premises, nor shall same be deemed to be the
consent of Landlord to any assignment or transfer of this Lease or to any
sublease of the Premises or to the occupancy thereof by any person other than
Tenant.


 


8.7                                 Except
as specifically provided to the contrary in this Article, if Tenant desires to
assign this Lease or sublet all or any part of the Premises, including any
assignment or sublet in connection with any proceeding under the United States
Bankruptcy Code or any federal, state or foreign law of like impact
(collectively, “Insolvency Laws”), Tenant shall give notice thereof to
Landlord, which notice shall be accompanied by a term sheet setting forth the
material business terms of such proposed assignment or sublease. (i) If such
notice is given in connection with a proposed assignment of this Lease, other
than an assignment of the type referred to in Section 8.2 hereof, then such
notice shall be deemed an offer from Tenant to Landlord whereby Landlord may,
at Landlord’s option, terminate this Lease. (ii) If such notice is given in


 


31





















 


connection with a proposed sublease of a portion of the Premises to a
party other than a Tenant’s Affiliate, then such notice shall be deemed an
offer from Tenant to Landlord whereby Landlord (or Landlord’s designee) may, at
its option, sublease such space (hereinafter referred to as the “Leaseback Space”)
from Tenant upon the terms and conditions hereinafter set forth. The option in
question may be exercised by Landlord by notice to Tenant at any time within
thirty (30) days after such notice given by Tenant to Landlord, and during such
30-day period Tenant shall not assign this Lease or sublet such space to any
person.


 


8.8                                 If
Landlord exercises its option to sublet the Leaseback Space, such sublease to
Landlord or its designee (as subtenant) (“Landlord’s Sublease”) shall be at the
rentals and for the same term as set forth in the term sheet described in
Section 8.7 hereof, and such Landlord’s Sublease shall:


 


(a)                                  be expressly subject
to all of the covenants, agreements, terms, provisions and conditions of the
Lease except such as are irrelevant or inapplicable, and except as otherwise
expressly set forth to the contrary in this Article;


 


(b)                                 be upon terms and
conditions consistent with those contained in the term sheet described in
Section 8.7 hereof, except such as are irrelevant or inapplicable and except as
otherwise expressly set forth to the contrary in this Article.


 


(c)                                  give the sublessee
the unqualified and unrestricted right, without Tenant’s permission, to assign
such Landlord’s Sublease or any interest therein and/or to sublet the Leaseback
Space or any part or parts of the Leaseback Space and to make any and all
changes, alterations, and improvements in the space covered by such Landlord’s
Sublease as Landlord deems necessary or desirable;


 


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(d)                                 provide that any
assignee or further subtenant of Landlord may, at the election of Landlord, be
permitted to make alterations, decorations and installations in the Leaseback
Space or any part thereof as Landlord deems necessary or desirable and shall
also provide in substance that any such alterations, decorations and
installations in the Leaseback Space therein made by any assignee or subtenant
of Landlord may be removed, in whole or in part, by such assignee or subtenant,
at its option, prior to or upon the expiration or other termination of such
assignment or sublease provided that such assignee or subtenant, at its
expense, shall repair any damage and injury to that portion of the Leaseback
Space so sublet caused by such removal; provided, however, that if the proposed
sublease delivered to Landlord sets forth that the subtenant named therein
shall use the space “as is” and make no alterations throughout the term of the
sublease, or is required to restore the space to its pre-existing condition,
then Landlord shall, or shall cause its assignee or subtenant to, restore the
Leaseback Space substantially to its pre-existing condition to the extent
required under the proposed sublease unless the term of such proposed sublease
expires within the last year of the term of this Lease;


 


(e)                                  also provide that (i)
the parties to a Landlord’s Sublease expressly negate any intention that any
estate created under such Landlord’s Sublease be merged with any other estate
held by either of said parties, (ii) occupancy of the Premises by Landlord or
its assignee or subtenant shall be for a use in conformance with Section 2.1 of
this Lease (except that occupancy of the Premises pursuant to a Landlord’s
Sublease may be for any lawful purpose, if such Landlord’s Sublease is for all
or a portion of the Premises, provided such portion of the Premises constitutes
at a full floor,


 


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(iii) Tenant, at Tenant’s expense, shall and will at all times provide
and permit reasonably appropriate means of ingress to and
egress from the Leaseback Space so sublet by. Tenant to Landlord,
(iv) Landlord shall make such alterations as shall be reasonably required or deemed
necessary by Landlord to physically separate the Leaseback Space from the balance
of the Premises and to comply with any laws and requirements of public
authorities relating to such separation, and Tenant will promptly reimburse
Landlord for the reasonable cost thereof on demand, and (v) at the expiration
of the term of a Landlord’s Sublease, Tenant will accept the space covered by
such Landlord’s Sublease in its then existing condition, subject to the
obligations of the Landlord as tenant under such Landlord’s Sublease to make
such repairs thereto as may be necessary to preserve the premises demised by
such Landlord’s Sublease in reasonable order and condition, and subject to the
condition as to restoration set forth in (d) above; and


 


(f)                                    Tenant shall have
no obligation, at the expiration or earlier termination of the term of this Lease,
to remove any alteration, installation or improvement made in the Leaseback
Space by Landlord or its assignee or subtenant. Performance by Landlord, under
a Landlord’s Sublease, shall be deemed performance by Tenant of any similar
obligation under this Lease and any default under any such Landlord’s Sublease
shall not give rise to a default under a similar obligation contained in this
Lease, nor shall Tenant be liable for any default under this Lease or deemed to
be in default hereunder if and to the extent such default arises directly from
any act or omission of the tenant under such Landlord’s Sublease or arises
directly from any act or omission of any occupant holding under or pursuant to
any such Landlord’s Sublease (including, without limitation, as to payment of
Fixed Rent and/or Additional Charges), and


 


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Landlord shall indemnify and hold harmless Tenant from any loss, damage
or expense which Tenant may suffer or incur arising out of the leasing or
occupancy of the space demised under a Landlord’s Sublease, except to the
extent the same arises from any act or omission of Tenant.


 


8.9                                 If
Landlord exercises its option pursuant to Section 8.7 to terminate this Lease,
then this Lease shall terminate on the date that the assignment was to be
effective or the sublet was to commence, and Fixed Rent and Additional Charges
shall be apportioned as of such date.


 


8.10                           If
Landlord does not exercise an option provided to it pursuant to Section 8.7 and
Tenant is not in default of any of its obligations under this Lease beyond the
applicable period after notice (if any) and grace provided for herein,
Landlord’s consent (which shall be in form reasonably satisfactory to Landlord)
to the proposed assignment or sublease shall not be unreasonably withheld,
provided and upon condition that:


 


(a)                                  Tenant
has complied with the provisions of this Article,


 


(b)                                 in
Landlord’s judgment the proposed assignee or subtenant is a reputable person of
good character and is engaged in a business and the Premises will be used in a
manner which (i) is in keeping with the then standards of the Building, (ii) is
limited to the use expressly permitted under Section 2.1, and (iii) will not
violate any negative covenant as to use contained in any other lease of space
in the Building,


 


(c)                                  neither
the proposed assignee or subtenant nor any person that, directly or indirectly,
controls, is controlled by, or is under common control with, the proposed
assignee or subtenant or any
person who controls the proposed assignee or


 


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subtenant, is then an occupant of any part of the Building, and
Landlord has other space in the
Building available to let to such proposed assignee or subtenant that is substantially
comparable in square footage to the space covered by this Lease or the space
proposed to be sublet by Tenant, as applicable,


 


(d)                                 the
proposed assignee or subtenant is not a person with whom Landlord is then
actively negotiating or in the prior six-month period was negotiating to lease
space in the Building, and


 


(e)                                  there
shall not be more than two subtenants (excluding Tenant’s Affiliates) on each
floor of the Premises that is 20,000 square feet or less and no more than four
subtenants (excluding Tenant’s Affiliates) on each floor of the Premises that
is more than 20,000 square feet, at any time.


 


8.11                           Except
to the extent the same are incurred by Landlord as subtenant under a Landlord’s
Sublease, Tenant shall reimburse Landlord on demand for any reasonable costs
incurred by Landlord in connection with any proposed assignment or sublease,
whether or not consented to by Landlord, including the cost of making
investigations as to the acceptability of the proposed assignee or subtenant,
and reasonable attorneys’ fees and disbursements in connection with the
granting of any requested consent.


 


8.12                           Except
as provided in Section 8.8(f) as to any subletting to Landlord or its designee,
with respect to any subletting to any other subtenant and/or acceptance of rent
or additional rent by Landlord from any other subtenant, (a) Tenant shall
remain fully liable for the payment of Fixed Rent and Additional Charges due
and to become due hereunder and for all of the other obligations of Tenant
under this Lease


 


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and (b) Tenant shall remain fully liable for all acts and omissions of
any licensee or subtenant or any person claiming through or under any licensee
or subtenant that are in violation of any of the obligations of Tenant under
this Lease, and any such violation shall be deemed to be a violation by Tenant.
Notwithstanding any such subletting, no other or further subletting of the
Premises by Tenant or any person claiming through or under Tenant shall be made
except in compliance with and subject to the provisions of this Article. If
Landlord declines to give its consent to any proposed assignment or sublease,
or if Landlord exercises its option under Section 8.7, Tenant shall indemnify
Landlord against liability in connection with any claims made against Landlord
by the proposed assignee or subtenant or by any brokers or other persons
claiming a commission or similar compensation in connection with the proposed
assignment or sublease.


 


8.13                           If (a)
Landlord does not exercise an option provided to it under Section 8.7 and
Landlord consents to a proposed assignment or sublease and (b) Tenant fails to
execute and deliver the assignment or sublease to which Landlord consented
within one hundred eighty (180) days after the giving of such consent, then
Tenant shall again be required to comply with the provisions of this Article
(as if Tenant had not requested such consent) before assigning this Lease or
subletting all or any part of the Premises.


 


8.14                           In
respect of every permitted sublease (except a Landlord’s Sublease):


 


(a)                                  no
sublease shall be for a term ending later than the day before the Expiration
Date,


 


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(b)                                 no
sublease shall be valid, and no subtenant shall take possession of the Premises
or any part thereof, until an executed counterpart of such sublease has been
delivered to Landlord,


 


(c)                                  each
sublease shall provide that it is subject and subordinate to this Lease and to
the 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 and execute and deliver such instruments as Landlord may
reasonably request to evidence and confirm such attornment, except that
Landlord shall not be (i) liable for any previous act or omission of Tenant
under such sublease, (ii) subject to any offset which had accrued to such
subtenant against Tenant, (iii) bound by any previous modification of such
sublease not consented to by Landlord or by any prepayment of more than one
month’s rent or additional rent, (iv) obligated to make any payment to or on
behalf of such subtenant or to perform any repairs or other work in the
subleased space or the Building beyond Landlord’s obligations under this Lease,
or (v) required to account for any security deposit other than any actually
delivered to Landlord,


 


(d)                                 the
rental and other terms and conditions of each sublease shall be substantially
the same as those contained in the proposed sublease furnished to Landlord pursuant
to Section 8.7 (except that the rental may deviate by up to 5%), and


 


(e)                                  Tenant
shall not publicly advertise the rental rate or any description thereof to be
paid by the proposed subtenant or assignee.


 


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8.15                           If
Landlord does not exercise an option provided to it under Section 8.7 and
Landlord gives its consent to any assignment of this Lease (other than an
assignment pursuant to Section 8.2 hereof) or to any sublease (other than to a
Tenant’s Affiliate), Tenant shall in consideration therefor pay to Landlord:


 


(a)                                  in
the case of an assignment, an amount equal to 50% of all sums and other
consideration paid to Tenant by the assignee or any other person for or in
connection with such assignment (including sums paid for the sale of Tenant’s
fixtures, leasehold improvements, equipment, furniture, furnishings or other
personal property, less the then net unamortized or undepreciated cost thereof
determined on the basis of Tenant’s federal income tax return, but excluding
the obligations assumed by the assignee to pay all rent and other sums and
charges due under this Lease from and after the effective date of such
assignment), less reasonable expenses incurred by Tenant for legal expenses,
brokerage and fix-up in connection with such assignment,


 


(b)                                 in
the case of a sublease, an amount equal to 50% of all rents, additional charges
or other consideration payable to Tenant, plus any sums paid for the sale or
rental of Tenant’s fixtures, leasehold improvements, equipment, furnishings or
other personal property, less the then net unamortized or undepreciated cost
thereof determined on a straight line basis over the term of the Lease to the
extent that the sum thereof is in excess of the Fixed Rent and Additional
Charges accruing during the term of the sublease in respect of the subleased
space (at the rate per square foot payable by Tenant hereunder), less
reasonable expenses incurred by Tenant for legal expenses, brokerage and fix-up
in connection with such sublease. The deduction for the net unamortized or
undepreciated cost of Tenant’s fixtures, etc. and sublessee’s expenses


 


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shall be made in equal monthly installments over the term of the
sublease. The sums payable under this subsection shall be paid to Landlord as
and when paid by the subtenant or any other person to Tenant. For the purpose
of this subsection 8.15(b), the determination of amounts due Landlord in
connection with a sublease shall be made in respect of each sublease on an
individual basis.


 


8.16                           If
Tenant at any time requests Landlord to sublet the Premises for Tenant’s
account, Landlord is authorized to receive keys for such purpose without
releasing Tenant from any of its obligations under this Lease, and Tenant
hereby releases Landlord of and from any liability for loss or damage to any
Tenant’s Property in connection with such subletting, provided Landlord
exercises reasonable care to prevent damage to Tenant’s Property.


 


8.17                           Landlord
shall, at Tenant’s request and expense execute and deliver to a Major Subtenant
(as defined herein), a nondisturbance and attornment agreement; provided, that
(I) Tenant is not then in default under this Lease after notice and beyond
applicable grace period, (II) the sublease with the Major Subtenant is a
Qualifying Major Sublease (as defined herein), (III) Tenant has furnished
evidence to Landlord’s reasonable satisfaction that the subtenant is a Major
Subtenant and will continue to be a Major Subtenant after execution and
delivery of the sublease and (IV) such Major Subtenant executes and delivers to
Landlord the subordination and nondisturbance agreement reasonably satisfactory
to Landlord and consistent with this Section 8.17. A “Qualifying Major Sublease”
shall mean a sublease from Tenant to a Major Subtenant to which Landlord shall
have actually given its consent (not including where Landlord’s consent is not
required) and which (A) consists of a full floor or


 


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multiple full floors in the Building, (B) provides that, at the time
when the attornment provided for in the non-disturbance and attornment
agreement hereinafter referred to becomes effective between Landlord and the
Major Subtenant following the termination of this Lease, the rental payable
thereunder, after taking into account any free rent periods, credits, offsets
or deductions to which the subtenant may be entitled thereunder, will be equal
to or in excess (on a per rentable square foot basis) of the greater of (ww)
the Fixed Rent and the recurring Additional Charges payable by Tenant under
this Lease with respect to such space and (xx) rent provided for in the
Qualifying Major Sublease, and (C) provides for other obligations of the Major
Subtenant at least substantially identical to the obligations of Tenant under
this Lease. A “Major Subtenant” shall mean a subtenant with an aggregate
tangible net worth which is reasonably satisfactory to Landlord.
Notwithstanding anything to the contrary set forth in this clause, any
non-disturbance and attornment agreement delivered by Landlord pursuant to this
clause shall, pursuant to this Lease, be conditional and by its terms expressly
contain the condition such that, in the event of any termination of this Lease
(x) other than by reason of (1) Tenant’s default, (2) a rejection in bankruptcy
by Tenant or (3) a voluntary surrender of this Lease by Landlord and Tenant,
but (y) including a termination of this Lease by reason of casualty or
condemnation, hereof, then any non-disturbance and attornment agreement to a
Major Subtenant shall, automatically and without further act of the parties,
terminate and be of no further force or effect from and after the applicable
termination date.


 


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ARTICLE 9


 


COMPLIANCE WITH LEGAL AND INSURANCE
REQUIREMENTS


 


9.1                                 Tenant
shall give prompt notice to Landlord of any notice it receives of the violation
of any Legal Requirements or Insurance Requirements in respect of the Premises
or the use or occupancy thereof. Tenant shall, at Tenant’s expense, comply with
all Legal Requirements and Insurance Requirements relating to the Premises or
the use or occupancy thereof, except that Tenant shall not be required to
comply with any Legal Requirement or Insurance Requirement requiring structural
alteration of the Premises unless the necessity therefor results from (a)
Alterations, (b) Tenant’s specific manner of use of the Premises (as opposed to
general office use), (c) the specific manner of conduct of Tenant’s business or
operation of its installations, equipment or other property therein, (d) any
cause or condition created by or at the instance of Tenant, or (e) the breach
of any of Tenant’s obligations under this Lease. Tenant shall pay all the
costs, expenses, fines, penalties and damages imposed upon Landlord or any
Superior Lessors or Superior Mortgagees by reason of or arising out of Tenant’s
failure to fully and promptly comply with and observe the provisions of this
Section. However, Tenant need not comply with any Legal Requirement so long as
Tenant is contesting the validity thereof or the applicability thereof to the
Premises in accordance with Section 9.2. Landlord shall comply with or cause
compliance with all Legal Requirements and Insurance Requirements affecting the
Building and all other Legal Requirements and Insurance Requirements affecting
the Premises but may similarly defer compliance so long as Landlord is
contesting the validity or applicability thereof. If any public authority or
insurance body requires or recommends any additional sprinkler heads or changes
to the sprinkler system in or serving the Premises, Tenant shall, at its
expense, promptly


 


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make and supply such additional sprinkler heads or changes, except that
if prior to the date hereof a violation has been issued against the Premises
with respect to the sprinkler heads or sprinkler system in the Premises,
Landlord at its expense will be responsible for curing such violation.


 


9.2                                 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 Premises of any Legal Requirements provided that (a)
neither Landlord nor any Superior Lessor or Superior Mortgagee is subject to
criminal penalty or to prosecution for a crime, and neither the Building nor
any part thereof is subject to being condemned or vacated, by reason of
noncompliance or otherwise by reason of such contest, (b) before the
commencement of such contest, Tenant furnishes to Landlord either (i) a
completion bond of a corporate surety licensed to do business in the State of
New York and reasonably satisfactory to Landlord, which bond shall be, as to
its provisions and form, reasonably satisfactory to Landlord, in an amount at
least equal to 110% of the cost of such compliance (as estimated by a reputable
and experienced contractor selected by Tenant and reasonably satisfactory to
Landlord), or (ii) other security in place of such bond reasonably satisfactory
to Landlord, and (c) such noncompliance or contest does not constitute or
result in any violation of any Superior Lease or Superior Mortgage (or if any
Superior Lease and/or Superior Mortgage permits such noncompliance or contest
only if Landlord takes some specified action or furnishes security, such action
is taken and/or such security is furnished at the expense of Tenant). Tenant
shall keep Landlord advised as to the status of such proceedings and Tenant
shall indemnify Landlord against liability in connection with such contest or
noncompliance.


 


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Without limiting the application of the above, Landlord, any Superior
Lessor and any Superior Mortgagee shall be deemed subject to prosecution for a
crime if Landlord or any Superior Lessor or Superior Mortgagee, or any managing
agent for the Building, or any officer, director, partner, shareholder or
employee of Landlord or of any managing agent for the Building or of any Superior
Lessor or Superior Mortgagee, is charged with a crime of any kind or degree,
whether by service of a summons or otherwise.


 


ARTICLE 10


 


INSURANCE


 


10.1                           Tenant
shall not violate or permit the violation of any Insurance Requirements and
shall not do, or permit anything to be done, or keep or permit anything to be
kept in the Premises which would subject Landlord or any Superior Lessor or
Superior Mortgagee to liability or responsibility for bodily injury or death or
property damage, or which would increase any insurance rate in respect of
insurance maintained by Landlord over the rate which would otherwise then be in
effect, or which would result in an insurance company refusing to insure all or
any part of the Property or any contents thereof 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 maintained by Landlord.


 


10.2                           If, by
reason of (a) any failure of Tenant to comply with the provisions of Section
9.1 or Section 10.1, (b) Tenant’s use of the Premises, or (c) any cause or
condition created by or at the instance of Tenant, including, without
limitation, the making of or failure to make any Alterations or repairs, the
premiums on any insurance maintained by Landlord shall be higher than they
otherwise would be, Landlord shall give Tenant notice of such occurrence, and
Tenant shall reimburse


 


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Landlord on demand for that part of such premiums attributable to such
failure on the part of Tenant. A schedule or “make up” of rates for any
insurance maintained by Landlord issued by the New York Fire Insurance Rating
Organization or other similar body making rates shall be conclusive evidence of
the facts therein stated and of the several items and charges in the insurance
rate then applicable to such insurance.


 


10.3                           Tenant,
at its expense, shall maintain Commercial General Liability insurance,
including but not limited to a contractual liability endorsement, in respect of
the Premises and the conduct or operation of business therein, with Landlord
and its managing agent, if any, and any Superior Lessors and Superior
Mortgagees whose names and addresses were furnished to Tenant, as additional
insureds, with limits of not less than $10,000,000 per occurrence and
$10,000,000 annual aggregate Bodily Injury and Property Damage liability. The
limits of such insurance shall not limit the liability of Tenant hereunder.
Tenant shall deliver to Landlord and all additional insureds certificates of
insurance evidencing all coverages issued by the insurance company or its
authorized agent prior to the Commencement Date. All such policies shall
include 30 days written notice of cancellation or material change. Tenant shall
procure and pay for renewals of such insurance from time to time before the
expiration thereof. Tenant shall deliver to Landlord and all additional
insureds certificates of insurance at least 30 days prior to the expiration of
said policies. All such policies shall be issued by a licensed insurance
companies with an A.M. Best’s (or its successor) rating of A-VIII or better or
the then equivalent of such rating. Tenant is hereby advised that as of the
date hereof the Superior Lessor and the Superior Mortgagee are as provided in
Section 6.2 hereof.


 


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10.4                           Tenant
shall maintain in full force and effect a policy of All Risk Property covering
the Tenant’s furniture, fixtures, improvements and betterments in an amount not
less than 100% of the total cost of all Tenant’s property. All such policies
shall be issued by a licensed insurance company with an A.M. Best’s rating of
A-VIII or better or the then equivalent of such rating. A certificate of
insurance evidencing coverage shall be issued to Landlord prior to the
Commencement date and Tenant shall deliver to Landlord and all additional
insureds certificates of insurance at least 30 days prior to the expiration of
said policies.


 


10.5                           Each
party shall have included in each of its All Risk Property insurance policies
(insuring the Building and Landlord’s property therein in the case of Landlord,
and insuring Tenant’s Property in the case of Tenant) a waiver of the insurer’s
right of subrogation against the other party or, if such waiver is unobtainable
or unenforceable, (a) an express agreement that such policy shall not be
invalidated if the insured waives the right of recovery against any party
responsible for a loss covered by the policy before the loss, or (b) any other
form of permission for the release of the other party. If such waiver,
agreement or permission is not, or ceases to be, obtainable from either party’s
then current insurance company, the insured party shall so notify the other
party promptly after learning thereof, and shall use its best efforts to obtain
same from another insurance company, without thereby incurring any liability or
expense not expressly provided for in this Lease. If such waiver, agreement or
permission is obtainable only by payment of an additional charge, the insured
party shall so notify the other party promptly after learning thereof, and the
insured party shall not be required to obtain said waiver, agreement or
permission unless the other party pays the additional


 


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charge therefor. Each party hereby releases the other in respect of any
claim which it might otherwise have against the other for loss, damage or
destruction of or to its property to the extent to which it is insured under a
policy containing a waiver of subrogation or express agreement that such policy
shall not be invalidated or permission to release liability, as provided above
in this Section. If notwithstanding the recovery of insurance proceeds by
either party for loss, damage or destruction of or to its property, the other
party is liable to the first party in respect thereof or is obligated under
this Lease to make replacement, repair, restoration or payment, then, provided
the first party’s right of full recovery under its insurance policy is not
thereby prejudiced or otherwise adversely affected, the amount of the net
proceeds of the first party’s insurance against such loss, damage or
destruction shall be offset against the second party’s liability to the first
party therefor, or shall be made available to the second party to pay for
replacement, repair or restoration, as the case may be. Nothing contained in
this Section shall be deemed to (i) relieve either party of any duty imposed
elsewhere in this Lease to repair, restore or rebuild or (ii) nullify any
abatement or reduction of rents provided for elsewhere in this Lease.


 


10.6                           Landlord
may from time to time, but not more frequently than once every year, require that
the amount of Commercial General Liability insurance to be maintained by Tenant
under Section 10.3 be reasonably increased to an amount not in excess of the
amount then customarily required by owners of comparable first class office
buildings in Manhattan to be maintained by tenants of space similar in size,
location and construction to the Premises.


 


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10.7                           The
insurance required to be carried by Tenant pursuant to the provisions of this
Article 10 may, at Tenant’s option, be effected by blanket and/or umbrella
policies issued to Tenant covering the Premises and other properties owned or
leased by Tenant or any Tenant’s Affiliate, provided such policies otherwise
comply with the provisions of this Lease and allocate to the Premises the
specified coverage, including, without limitation, the specified coverage for
all insureds required to be named as insureds hereunder, without possibility of
reduction or coinsurance by reason of, or because of damage to, any other
properties named therein.


 


10.8                           Landlord
shall, throughout the term, maintain in effect, such insurance with respect to
the Building and Landlord’s property against loss due to fire and such other
casualties, and such comprehensive general liability insurance, as are required
by the Master Lease.


 


ARTICLE 11


 


RULES AND REGULATIONS


 


11.1                           Tenant
shall and shall cause its subtenants and licensees, and its and their
respective directors, officers, partners, employees, agents, contractors and
invitees, to observe and comply with the rules and regulations attached hereto
as Exhibit D, and such reasonable changes therein (whether by
modification, elimination or addition) as Landlord at any time or times makes
and notifies Tenant of which in Landlord’s reasonable judgment are necessary or
desirable for the reputation, safety, care or appearance of the Building, or
the preservation of good order therein, or the operation or maintenance of the
Building. Such rules and regulations as changed from time to time are herein
called the “Rules and Regulations.” In case of any conflict or inconsistency


 


48





















 


between the provisions of this Lease and any of the Rules and
Regulations, the provisions of this Lease shall control.


 


11.2                           The
Rules and Regulations shall be uniformly applied and enforced against the tenants of the Building other than
Landlord-Related Occupants.


 


ARTICLE 12


 


ALTERATIONS


 


12.1                           Tenant
may from time to time, at its expense, make such alterations (“Alterations”) to
the Premises as Tenant reasonably considers necessary for the conduct of its
business in the Premises, provided and upon condition that: (a) the Alterations
are non-structural and the structural integrity of the Building is not
affected, (b) the Alterations are to the interior of the Premises, no part of
the Building outside of the Premises is affected, and the outside appearance of
the Building is not affected, (c) the proper functioning of the mechanical,
electrical, sanitary and other service systems of the Building is not adversely
affected, and (d) no change in the Certificate of Occupancy for the Building
will result from the Alterations or be required as a result thereof. Before
proceeding with any Alteration (other than painting and other strictly
decorative work), Tenant shall submit to Landlord for Landlord’s approval
(which shall not be unreasonably withheld or delayed) a description of such
Alteration and if such Alteration will cost more than $200,000 or require the
issuance of a building permit Tenant shall also supply scaled and dimensioned
plans and specifications for the work to be done prepared by a registered
architect or licensed professional engineer, and Tenant shall not proceed with
such work until it obtains such approval. Tenant shall pay to Landlord on
demand the reasonable out-of-pocket costs and expenses of any outside architect
or engineer hired by Landlord for the purpose of (i) reviewing said plans and


 


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specifications and (ii) inspecting the Alterations to determine whether
the same are being performed in accordance with the approved plans and
specifications and all Legal Requirements and Insurance Requirements including
the fees or cost of any architect, engineer or draftsman for such purposes.
Before proceeding with any Alteration that will cost more than $200,000
(exclusive of the cost of decorating work and items constituting Tenant’s
Property), as estimated, at Tenant’s expense, by a reputable and experienced
contractor reasonably satisfactory to Landlord, Tenant shall obtain and deliver
to Landlord either, at Landlord’s option, (x) a performance bond and a labor
and materials payment bond reasonably satisfactory to Landlord issued by a
corporate surety licensed to do business in the State of New York and
reasonably satisfactory to Landlord, each in an amount equal to 125% of such
estimated cost and in form reasonably satisfactory to Landlord, or (y) such
other security as shall be reasonably satisfactory to Landlord. Tenant shall
fully and promptly comply with and observe the Rules and Regulations then in
force in respect of making Alterations. Any review or approval by Landlord of
any plans or specifications in respect of any Alterations is solely for
Landlord’s benefit and without any representation or warranty to Tenant as to
the adequacy, correctness or efficiency thereof or as to the compliance of such
plans and specifications with Legal Requirements or Insurance Requirements.


 


12.2                           Tenant,
at its expense, shall obtain 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 and with all applicable Legal Requirements and
Insurance Requirements. Landlord, upon the request of Tenant, shall join in any
applications for


 


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any permits, approvals or certificates
required to be obtained by Tenant in connection with any Alteration approved by
Landlord, if such approval is required hereunder, (including requesting the
Superior Lessor so to join in) and shall otherwise cooperate with Tenant in
connection therewith, and Tenant shall pay any out-of-pocket expenses incurred
by Landlord in connection therewith. Alterations shall be diligently performed
in a good and workmanlike 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 by contractors first approved by
Landlord, such approval not to be unreasonably withheld or delayed unless such
Alteration affects the base building system, in which case Tenant must use the
Building designated contractors. Alterations shall be performed in such a
manner as not to violate union contracts affecting the Property, or to create
any work stoppage, picketing, labor disruption or dispute or any interference
with the business of Landlord or any tenant of the Building. In addition,
Alterations shall be performed in such a manner as not to otherwise
unreasonably interfere with or delay and as not to impose any additional
expense upon Landlord in the construction, maintenance, repair, operation or
cleaning of the Building, and if any such additional expense is incurred by
Landlord as a result of Tenant’s performance of Alterations, Tenant shall pay
such additional expense to Landlord on demand. Throughout the performance of
Alterations, Tenant shall carry, or cause its contractors to carry, workers’
compensation insurance in statutory limits, “Builder’s Risk” insurance
reasonably satisfactory to Landlord, and comprehensive general liability
insurance, with completed operations endorsement, for any occurrence in or
about the Building, under which Landlord and its managing agent and any
Superior Lessors and


 


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Superior Mortgagees whose names and addresses were furnished to Tenant
shall be named as additional insureds, in such limits as Landlord may
reasonably require, with insurers reasonably satisfactory to Landlord. Tenant
shall furnish Landlord with reasonably satisfactory evidence that such
insurance is in effect before the commencement of Alterations and, on request,
at reasonable intervals during the continuance of Alterations. If any
Alterations involve the removal of any fixtures, equipment or other property in
the Premises which are not Tenant’s Property, such fixtures, equipment or other
property shall be promptly replaced at Tenant’s expense with new fixtures,
equipment or other property of like utility and at least equal value. Upon completion
of any Alterations (other than mere decorations) Tenant shall deliver to
Landlord scaled and dimensioned reproducible mylars of “as-built” plans for
such Alteration and a copy on a diskette format.


 


12.3                           Tenant,
at its expense, shall promptly 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 which are issued by the Department
of Buildings of the City of New York or any other public authority having or
asserting jurisdiction. Tenant shall indemnify Landlord against liability in
connection with any and all mechanics’ 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 security interests in any materials, fixtures or articles so
installed in the Premises. Tenant, at its expense, shall


 


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procure the satisfaction or discharge of record of all such liens and
encumbrances within 30 days after the Tenant receives notice of the filing
thereof.


 


ARTICLE 13


 


LANDLORD’S AND TENANT’S PROPERTY;

REMOVAL AT END OF TERM


 


13.1                           All
fixtures, equipment, improvements and appurtenances, including utility lines
and equipment, attached to or built into the Premises before or after the
Commencement Date, whether by or at the expense of Landlord or Tenant, shall be
and remain a part of the Premises, shall be deemed the property of Landlord and
shall not be removed by Tenant except as provided in Section 13.2.


 


13.2                           All movable partitions,
business and trade fixtures, machinery and equipment, communications equipment
and office equipment, whether or not attached to or built into the Premises,
which are, or were, installed in the Premises by Tenant, or any predecessor in
interest thereto, without expense to Landlord and which can be removed without
structural damage to the Building, and all furniture, furnishings and other
articles of movable personal property owned by Tenant, or any predecessor in
interest thereto, and located in the Premises (collectively, “Tenant’s Property”)
shall be and shall remain the property of Tenant and may be removed by Tenant
at any time during the Term, provided that if any Tenant’s Property is
installed or removed, Tenant shall repair or pay the cost of repairing any
damage to the Premises or to the Building resulting from the installation
and/or removal thereof, other than repainting and purely decorative repairs. At
or before the Expiration Date, or within 15 days after an earlier termination
date, Tenant, at its expense, shall remove from the Premises all Tenant’s
Property, and Tenant shall repair any damage to the Premises and the Building
resulting from any installation


 


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and/or removal of Tenant’s
Property. Any other items of Tenant’s Property
which remain in the Premises after the Expiration Date, or after 15 days
following an earlier termination, may, at the option of Landlord, be deemed to
have been abandoned, and in such case such items may be retained by Landlord as
its property or disposed of by Landlord
without accountability in such manner as Landlord shall determine at Tenant’s
expense.


 


13.3                           At
the time of Landlord’s approval of Tenant’s plans and specifications for any
Alterations, Landlord may include in its approval a requirement that any
Alterations which are of a structural nature and/or are of a type not normally
found in Manhattan general business offices shall, at Landlord’s option, be
removed from the Premises by the Tenant at the end of the Term. If Landlord
notifies Tenant at any time prior to or not more
than 45 days after the Expiration Date or date or sooner termination of this
Lease that any such Alterations are to be removed, Tenant shall remove such
Alterations not later than such Expiration Date or date of sooner termination
unless such request is made after such Expiration Date or date of sooner
termination (or is made prior to such Expiration Date or date of sooner
termination and the Tenant acting with reasonable promptness is not able to so
remove the same prior to the Expiration Date or date of sooner termination), in
which event the same shall be so removed by the Tenant with reasonable
promptness after the receipt of such request. The cost and expense of any such
removal (including removal by Landlord upon Tenant’s failure to do so as
provided herein) and the cost of repairing any damage to the Premises or the
Building arising from such removal, shall be paid by the Tenant upon demand.


 


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ARTICLE 14


 


REPAIRS AND MAINTENANCE


 


14.1                           Tenant
shall, at its expense, take good care of the Premises, the fixtures and
appurtenances therein and any Tenant’s Property. Tenant shall be responsible
for and shall promptly make all repairs, interior and exterior, structural and
nonstructural, ordinary and extraordinary, in and to the Premises and the
Building the need for which arises out of (a) the performance by Landlord or
others or existence of any Work or installations in and to the Premises to
prepare the Premises for occupancy by Tenant, or any predecessor in interest
thereto, Alterations or other work by Tenant, (b) the installation, use or
operation of Tenant’s Property, (c) the moving of Tenant’s Property in or out
of the Premises or the Building, or (d) the act, omission, misuse or neglect of
or by Tenant or any subtenant or licensee, or their respective employees,
agents, contractors or invitees. Tenant, at its expense, shall promptly repair
or replace all scratched, damaged or broken doors and glass in and about the
Premises and shall, subject to the terms of this Lease, be responsible for all
repairs, painting, maintenance and replacement of wall and floor coverings in the
Premises and for the repair and maintenance of all fixtures and equipment
therein. Any repairs required to be made by Tenant to the mechanical,
electrical, sanitary, heating, ventilating, air-conditioning or other systems
shall be performed only by contractors approved by Landlord. Notwithstanding
the foregoing, Tenant shall not be required to make any repairs or replacements
necessitated by, or repair any damage caused by the negligence or willful
misconduct of Landlord and/or Landlord’s servants, contractors, employees or
representatives.


 


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14.2                           Landlord
shall make all repairs, structural and otherwise, interior and exterior, as and
when needed in or to the Building and the systems servicing the Building as a whole (including the
Premises) and including the mechanical, electrical, heating, ventilating, air
conditioning, elevator, plumbing, sanitary, life-safety and other service
systems of the Building providing Building-wide services and the public portions
of the Building, both exterior and interior) in conformity with standards
applicable to first-class office
buildings in Manhattan, City, State and County of New York of comparable age
and quality, except for those repairs for which Tenant or any other tenant is
responsible.


 


14.3                           Except
as otherwise expressly provided in this Lease, Landlord shall have no liability
to Tenant, nor shall Tenant’s obligations under this Lease be reduced or abated in any manner, by
reason of any inconvenience, annoyance, interruption or injury to Tenant’s
business arising from Landlord’s making any repairs or changes which Landlord
is required or permitted to make. In making any such repairs or changes,
Landlord shall use reasonable efforts to limit the duration of any such interruptions.


 


ARTICLE 15


 


ELECTRIC ENERGY


 


15.1                           (a)                                  Landlord,
at Landlord’s expense, shall furnish electrical energy in the Premises for
Tenant’s reasonable use of normal office equipment and such lighting,
electrical appliances, general office computers, fax machines, photocopiers and
other machines and equipment as are reasonably incidental thereto, or as
Landlord shall otherwise permit to be installed in the Premises, through the
feeders, wiring installations and facilities heretofore installed in the Building
and, to the extent not previously


 


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installed, shall install at Landlord’s cost and expense at least one
(1) submeter on each floor of the Premises to measure Tenant’s consumption of
electrical energy. Tenant shall pay to Landlord, as Additional Charges
hereunder, on demand made from time to time but no more frequently than
monthly, for its use of electrical energy in the Premises as evidenced by the
aforesaid submeter(s), based upon both consumption and demand factors, at the
seasonally adjusted rate then payable by Landlord to the utility company
providing service to the Building (net of any energy rebates or energy cost
savings received by Landlord with respect to the Building), plus an amount equal
to three percent (3%) thereof to reimburse Landlord for its overhead,
administration, and supervision in connection therewith. For purposes of this
Article, the rate to be paid by Tenant shall include any taxes, energy charges,
demand charges, fuel adjustment charges, rate adjustment charges, or other
charges actually imposed in connection therewith. If any tax is imposed upon
Landlord’s receipts from the sale or resale of electrical energy to Tenant by
any federal, state, city or local authority, the pro-rata share of such tax
allocable to the electrical energy service received by Tenant shall be passed
onto and paid by Tenant as Additional Charges if and to the extent permitted by
law. Upon request, Landlord shall make available to Tenant a copy of its bill
from the Utility Company and any other documentation reasonably requested by
Tenant in order to confirm the charges billed to Tenant pursuant to this
Section. Notwithstanding any provision herein to the contrary, Landlord will
only provide sufficient electricity to the Concourse Space for lighting.


 


(b)                                 Landlord’s
failure during the term of this Lease to prepare and deliver any statements or
bills under this Article or Landlord’s failure to make a demand under this
Article or any other provisions of this Lease, shall not in any way be


 


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deemed to be a waiver of, or cause Landlord to forfeit or surrender its
rights to collect, any amount of Additional Charges which may have become due
pursuant to this Article during the term of this Lease. Tenant’s liability for
any amounts due under this Article shall continue unabated during the remainder
of the term of this Lease and shall survive
the expiration or sooner termination of this Lease, provided, that Tenant
shall not be responsible for
payment of any of Additional Charges payable under this Article that are not
billed to Tenant within one (1) year after the expiration of the calendar year
in which such costs were incurred.


 


(c)                                  In
order that Landlord may at all times have all necessary information which it
requires in order to maintain and protect its equipment, Tenant agrees that
Tenant will not make any material alteration or material addition to the
electrical equipment and/or appliances in the Premises without the prior
written consent of Landlord in each instance (which consent will not be
unreasonably withheld or delayed) and will promptly advise Landlord of any
other alteration or addition to such electrical equipment and/or appliances; provided,
however, that Tenant shall not be required to advise Landlord of any de
minimis alterations or additions, such as the installation of additional
personal computers, lamps and other ordinary office equipment of low energy
usage, unless, if taken in the aggregate, such alterations and additions are no
longer de  minimis.


 


(d)                                 Landlord
may, at its option, upon not less than ninety (90) days’ prior written notice
to the Tenant (or such longer time as may be required to make arrangements with
the electric utility for direct service provided Tenant exercises its best
efforts to complete said arrangements as soon as possible), discontinue the


 


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furnishing of electric current to the Premises or any part thereof and,
in such event, the Tenant shall
contract for the supplying of such electric current thereto with the public
service company supplying electric current to the neighborhood and the Landlord
shall supply its suitable and safely cable risers, conduits and feeders to
serve the Premises available, for the purpose of supplying such electric
current. Landlord agrees that it will not discontinue the furnishing of
electric current to the Premises in the manner provided herein unless required
to do so by a Legal Requirement, or in connection with a program to convert all
or substantially all of the office space in the Building not occupied by Landlord or Landlord Affiliates to
an alternate form of electrical supply.


 


(e)                                  Except
as may be otherwise provided in this Lease, the Tenant shall, at its own
expense, purchase and install all lamps, starters and ballasts (including
replacements thereof) used in the lighting fixtures in the Premises.


 


15.2                           In the
event that Tenant shall require electric current for use in the Premises in
excess of such reasonable quantity to be furnished as provided in this Lease
and if, in the Landlord’s reasonable judgment, such excess requirements cannot
be furnished unless additional risers, conduits, feeders, switchboards and/or
appurtenances are installed in the Building, Landlord, upon written request of
the Tenant, will proceed with reasonable diligence to install such additional
risers, conduits, feeders, switchboards and/or appurtenances provided the same
and the use thereof shall be permitted by applicable Legal Requirements and
Insurance Requirements and shall not cause permanent damage or injury to the
Building or the Premises or cause or create a dangerous or hazardous condition
or entail excessive or unreasonable alterations or repairs or interfere with or
disturb other tenants or occupants of the Building, and the


 


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Tenant agrees to pay all direct costs and expenses incurred by the
Landlord in connection with such installation and to maintain on deposit with
the Landlord such security for the payment by the Tenant of all such costs and
expenses as the Landlord shall from time to time reasonably request.


 


15.3                           Landlord
shall not be liable or responsible to Tenant for any loss, damage or expense
that Tenant sustains or incurs if either the quantity or character of electric
service is changed or interrupted or is no longer available or suitable for
Tenant’s requirements unless due to the negligence or willful misconduct of
Landlord, its agents, employees or contractors.


 


ARTICLE 16


 


HEAT, VENTILATION AND AIR
CONDITIONING


 


16.1                           Landlord
shall, subject to energy conservation requirements of governmental authorities,
supply during Business Hours of Business Days heat, air conditioning (including
such cooling during the period from April 15 to October 15 (the “AC  Season”),
as is comparable to other first-class office buildings in Manhattan) and
ventilation to all portions of the Premises, if any, which are served by the
Building’s air conditioning and ventilation systems, but the electric current
consumed in furnishing air conditioning and ventilation to such portions of the
Premises shall be paid for by the Tenant in the manner provided in Article 15
hereof. Landlord will, subject to energy conservation requirements or
governmental authorities, provide such heating, air conditioning and
ventilation to meet substantially the same specifications with respect to air
temperature and air volume as has been provided to Tenant during calendar years
to 2002 and 2003. Landlord will promptly furnish to Tenant a schedule of such
specifications. Notwithstanding the foregoing, Landlord will not be required to
provide


 


60





















 


heating, ventilation or air conditioning during non-Business Hours, on
non-Business Days or during the non-AC Season unless Tenant pays the charges as
otherwise provided herein.
Tenant agrees to lower and close the venetian blinds on all windows of the
Premises facing the sun whenever said air conditioning system is in operation
and Tenant will at all times abide with all regulations and requirements which
Landlord may reasonably prescribe for the proper functioning and protection of
said air conditioning system. Landlord will, when and to the extent reasonably
requested by Tenant, furnish additional heat, air conditioning and ventilation
services and Tenant will pay to the Landlord its building standard charge
therefor (which charges will, if applicable, be pro rated as reasonably determined by Landlord among all
tenants requesting such service), a schedule of such charges in effect on the
date hereof being attached hereto as Exhibit E. No representation is made by
Landlord with respect to the adequacy or fitness of such air conditioning or
ventilation to maintain temperatures as may be required for, or because of, the
operation of any computer, data processing or other equipment of Tenant, and
where air conditioning or ventilation is required for any such purpose,
Landlord assumes no responsibility, and shall have no liability, for any loss
or damage, however sustained, in connection therewith.


 


16.2                           The
performance by Landlord of its obligations under Section 16.1 is conditioned
upon Tenant’s connected load not exceeding five watts per rentable square foot
of the Premises (which Landlord represents is available at the Premises) and
upon the occupancy of the Premises not exceeding one individual per 125 square
feet of rentable area in the Premises. Landlord covenants and agrees that in
the event Tenant on the date hereof has and is utilizing more than five watts
per rentable square foot,


 


61





















 


Landlord will not reduce such excess capability without first obtaining
Tenant’s consent thereto, which consent will not be unreasonably withheld or
delayed. Use of the Premises or any part thereof in a manner exceeding the
heating, ventilating and/or air-conditioning design conditions (including
occupancy and connected electrical load), or rearrangement of partitioning which
interferes with normal operation of the heating, ventilating and/or air
conditioning in the Premises, or the use of computer or data processing
machines or other machines or equipment, may require changes in the heating,
ventilating and/or air-conditioning systems servicing the Premises in order to
provide comfortable occupancy. Such changes shall be made at Tenant’s expense
as Alterations in accordance with the provisions of Article 12, but only to the
extent permitted and upon the conditions set forth in that Article. In
furtherance thereof, if Tenant installs a supplemental cooling system to
service the Premises, said system shall be installed and maintained at the sole
cost and expense of Tenant and Tenant shall pay to Landlord, as Additional Charges,
a per ton hook-up fee and an annual per ton charge for condenser water at
Landlord’s building standard charges therefor.


 


ARTICLE 17


 


OTHER SERVICES, SERVICE INTERRUPTION

AND BUILDING DIRECTORY


 


17.1                           Landlord
shall furnish adequate hot and cold water to the Premises for drinking,
lavatory and normal cleaning purposes. If Tenant uses water for any other
purpose, Landlord may install and maintain, at Tenant’s expense, meters to
measure Tenant’s consumption of cold water and/or hot water for such other purpose.
Tenant shall reimburse Landlord on demand for the cost of cold water and hot
water shown on such meters, which cost will also include any sewer rents or
charges imposed thereon.


 


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17.2                           Landlord
shall cause the common area and sidewalks of the Building to be kept reasonably
clean and free from snow and ice, and shall cause the Premises, including the
exterior and interior of the exterior windows, to be cleaned in a manner
standard to the Building pursuant to the specifications attached hereto as
Exhibit F. Landlord shall not be required to clean (x) any portions of the
Premises used for preparation, serving or consumption of food or beverages,
training rooms, data processing or reproducing operations or private lavatories
or toilets or (y) the Concourse Space. Tenant shall pay to Landlord on demand
the costs incurred by Landlord for (a) extra cleaning work in the Premises
required because of (i) the act, omission, misuse or neglect of the Premises or
any portion thereof Tenant or any subtenant or licensee, or their respective
employees, agents, contractors or invitees, (ii) use of portions of the
Premises for special purposes requiring greater or more difficult cleaning work
than required in normal office areas, (iii) unusual quantity of interior glass
partitions or unusual quantity of interior glass surfaces, and (iv) special
materials or finishes (other than carpet) installed by Tenant, any predecessor
in interest thereto, or its subtenants, (b) collection and removal from the
Premises and the Building of any refuse or rubbish of Tenant in excess of that
ordinarily accumulated in general office occupancy.


 


17.3                           Landlord
shall provide passenger elevator service to the Premises during Business Hours,
and Landlord shall have at least one passenger elevator subject to call at all
other times. It Tenant requires freight elevator service at any times, or more
than one passenger elevator at any time other than during Business Hours,
Landlord shall furnish such service upon not less than one Business Day’s
advance notice from Tenant, and Tenant shall pay to Landlord on demand Landlord’s
then established building-wide


 


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charges therfor, a schedule of such charges in effect on the date
hereof being attached hereto as Exhibit E. The use of the elevators shall be
subject to the Rules and Regulations. It is understood and agreed that Landlord
may remove elevators from service for upgrading and/or repairs, but that unless
required to do so by conditions beyond the Landlord’s reasonable control, no
more than two (2) elevators in the elevator bank now servicing Tenants will be
removed from service at any particular time. Subject to the Rules and
Regulations, Tenant may have access to the Building at all times.


 


17.4                           Landlord
shall have the right, without affecting Tenant’s obligations under this Lease,
to temporarily stop or interrupt or reduce service of any of the heating,
ventilating, air conditioning, electric, sanitary, elevator, sprinkler, water
or other Building systems, or to temporarily stop or interrupt or reduce any
other services required or Landlord under this Lease (whether or not specified
in Article 16 or in this Article), whenever and for so long as may be necessary,
by reason of (a) Force Majeure Events or (b) the making of repairs, additions,
changes or replacements which Landlord is required or permitted to make or in
good faith deems necessary.


 


17.5                           Landlord
will, at the written request of Tenant, maintain listings on the Building
directory, if any, of the names of Tenant and any other person, firm or
corporation in occupancy of the Premises or any part thereof as permitted
hereunder, and the names of any officers or employees of any of the foregoing,
provided that the names so listed shall not use more than Tenant’s Operating
Percentage of the space in the Building directory system. If Landlord maintains
a concierge desk and/or a pass/I.D. card entry system in the Building lobby,
Tenant will be incorporated into any such system.


 


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17.6                           Tenant,
provided it complies with the other provisions of the Lease with respect to an
Alteration, may install an electronic key card lock system on the entrances to
the Premises provided that Landlord is provided, at no charge, with a
sufficient number of access cards or keys to allow Building personnel to access
the Premises in accordance with the terms of this Lease.


 


17.7                           Landlord
at its cost will maintain the central Class E System in the Building lobby
required by the applicable Legal Requirements. Tenant will be responsible for
the Class E System in the Premises and for the connection to the central Class
E System in the Building lobby.


 


17.8                           Landlord
will 24 hours a day 7 days a week maintain an attendant in the lobby of the
Building. Landlord will maintain the present card key access system located in
the lobby of the Building. During Non-Business Hours and on Non-Business Days
Landlord may limit access to the Building to only one of the entrances on the
West 51st or West 52nd Street. Landlord will maintain and monitor the existing
closed circuit television system that monitors public area at the Building.
Landlord at its election may replace or upgrade any of the foregoing security
systems, but Landlord will not be required to make such upgrades. If Tenant
requests that Landlord provide additional security and Tenant agrees to pay the
reasonable cost therefore, Landlord shall provide such additional security.


 


ARTICLE 18


 


ACCESS, NOTICE OF OCCURENCES, WINDOWS,

NAME OF BUILDING AND NO DEDICATION


 


18.1                           Except
for the space below the hung ceiling and above the floor and bounded by the
interior surfaces of the walls, windows and doors bounding the


 


65





















 


Premises, all of the Building, including exterior Building walls, core
corridor walls and doors and any core corridor entrances, any terraces or roofs
adjacent to the Premises and any space in or adjacent to the Premises used for
shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other utilities,
sinks or other Building facilities, and the use thereof, as well as access
thereto through the Premises for the purposes of operation, maintenance,
decoration and repair, are reserved to Landlord. Landlord shall have the right,
at any time, without affecting any of Tenant’s obligations under this Lease, to
install, erect, use and maintain pipes, ducts and conduits in and through the
Premises (provided that any such pipes, ducts or conduits are either located
within walls or placed adjacent to walls and appropriately furred), and to make
such changes, alterations, additions and improvements in or to the Building and
common areas as Landlord deems necessary or desirable.


 


18.2                           Landlord
and its agents shall have the right to enter and/or pass through and/or be on
the Premises at any time or times to examine the Premises and to show it to
actual or prospective Superior Lessors or Superior Mortgages or prospective
purchasers of the Building or prospective tenants during the six months of the
term hereof or during the 30-day period during which Landlord is considering to
terminate the Lease or enter into a Landlord Sublease as provided in Article 8
hereof or at any time with respect to the 12th floor if Landlord is considering
to exercise its options pursuant to Article 38 hereof. Landlord, its agents and
contractors (including cleaning contractors), and their respective employees,
(a) shall have the right to enter and/or pass through and/or be on the Premises
to clean the Premises and to make such repairs, alterations and improvements in
or to the Building as Landlord is required or desires to make (except


 


66





















 


that access for Landlord’s cleaning contractor and its employees to
clean the Premises on Business Days shall be only from 5:00 p.m. to 8:00 a.m.)
and (b) shall have the right to use, without charge therfor, all light, power,
and water in the Premises while cleaning or making repairs or alterations in
the Premises. Landlord shall have the right to take all materials into and on
the Premises that may be required in connection therewith and such acts shall
not be deemed an actual or constructive eviction and shall have no effect upon
Tenant’s obligations under this Lease. If during the last thirty (30) days of
the Term, Tenant has removed all or substantially all Tenant’s Property from
the Premises, Landlord may, without notice to Tenant, immediately enter the
Premises and alter, renovate and decorate the Premises, and such acts shall not
be deemed an actual or constructive eviction and shall have no effect upon
Tenant’s obligations under this lease.


 


18.3                           If
at any time any windows of the Premises are temporarily darkened or obstructed
by reason of any repairs, improvements, maintenance and/or cleaning in or about
the Building, or are permanently darkened or obstructed due to Legal
Requirements or Insurance Requirements, or if any part of the Building other
than the Premises is temporarily or permanently closed or inoperable, any such
occurrence shall not be deemed an actual or constructive eviction and shall
have no effect upon Tenant’s obligations under this Lease.


 


18.4                           Landlord
may adopt any name for the Building, and Landlord shall have the right to
change the name and/or address of the Building at any time and from time to
time. Notwithstanding the foregoing, the Building shall not be named for a
Tenant Competitor (as defined herein) for as long as no Event of Default has
occurred and is continuing. Tenant continues to rent and occupy at least 80,000
square feet in the


 


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Premises and Tenant maintains either its headquarters or principal
offices of its music business in the Premises. The term “Tenant Competitor”
shall mean a company whose primary business is the music industry and Tenant’s
principal business continues to be in the music industry.


 


18.5                           Landlord
and its agents shall have the right to permit access to the Premises at any
time, whether or not Tenant shall be present, (a) by any receiver, trustee,
sheriff, marshal, or other public official entitled to, or purporting to be
entitled to, such access (i) for the purpose of taking possession of or
removing any property of Tenant or of any other occupant of the Premises, or
(ii) for any other lawful purpose, or (b) by any representative of the fire,
police, building, sanitation or other department of instrumentality of any
borough, city, state, or federal government. Nothing contained in, nor any
action taken by Landlord under this Section, shall be deemed to constitute
recognition by Landlord that any person other than Tenant has any right or
interest in this Lease or the Premises.


 


18.6                           Tenant
shall give prompt notice to Landlord of any of the following of which Tenant
becomes aware: (a) any occurrence in or about the Premises for which Landlord
might be liable, (b) any fire or other casualty in the Premises, (c) any damage
to or defect in the Premises, including the fixtures, equipment and
appurtenances therof, for the repair of which Landlord might be responsible,
and (d) any damage to or defect in any part of the Building’s sanitary,
electrical, sprinkler, heating, ventilation, air conditioning, plumbing,
elevator or other systems in or passing through the Premises.


 


18.7                           If
an excavation is made upon land adjacent to or under the Building, or is
authorized to be made, Tenant shall afford to the person causing or


 


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authorized to cause such work as said person deems necessary or
desirable to preserve and protect the Building from injury or damage and to
support same by proper foundations, and same shall not be deemed an actual or
constructive eviction and shall have no effect on Tenant’s obligations under
this Lease.


 


18.8                           Prior
to any entry by Landlord into the Premises (other than routine cleaning, and
except emergency situations), Landlord shall use reasonable efforts to give
reasonable advance notice thereof to Tenant (which may be by telephone, email,
or fax), and Tenant shall have the right to have a representative accompany
Landlord’s personnel during the course of any such entry. If Tenant is not
present when for any reason entry into the Premises is necessary or
permissible, Landlord or Landlord’s agents may enter same by a master key, or
may forcibly enter same, without rendering Landlord or such agents liable
therefore (if during such entry Landlord or such agents accord reasonable care
to Tenant’s Property), and such entry shall not be deemed an actual or
constructive eviction and shall have no effect upon Tenant’s obligations under
this Lease.


 


18.9                           In
exercising its rights under this Article 18, Landlord shall use reasonable
efforts under the circumstances to avoid undue disruption of Tenant’s business.
However, Landlord shall not be required to do work in and about the Premises
during non-Business Hours in other Class A office buildings in Midtown
Manhattan.


 


ARTICLE 19


 


NON-LIABILITY AND INDEMNIFICATION


 


19.1                           Neither
Landlord nor any Superior Lessor or Superior Mortgagee shall be liable to
Tenant for any loss, injury or damage to Tenant or to any other person,


 


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or to its or their property, irrespective of the cause of such injury,
damage or loss, unless caused by or resulting from the negligence of willful
misconduct of Landlord, its agents, contractors, employees or the Superior
Lessor or Superior Mortgagee, in the operation or maintenance of the Premises
or the Building. Neither Landlord nor any Superior Lessor or Superior Mortgagee
shall be liable (a) for any damage caused by other tenants or persons in, on or
about the Building, or (b) even if resulting from negligence or willful
misconduct, for consequential damages of Tenant or any subtenant or licensee or
Tenant.


 


19.2                           Notwithstanding
any provision to the contrary, Tenant shall look solely to the estate and
property of Landlord in and to the property in the event of any claim against
Landlord or any partner, director, officer, agent or employee of Landlord
arising out of or in connection with this Lease, the relationship of Landlord
and Tenant or Tenant’s use of the Premises, and the liability of Landlord
arising out of or in connection with this Lease, the relationship of Landlord
and Tenant or Tenant’s use of Premises, shall be limited to such estate and
property of Landlord. No other properties or assets of Landlord or any partner,
director, officer, agent or employee or Landlord shall be subject to levy,
execution or other enforcement procedures for the satisfaction of any judgment
(or other judicial process) or for the satisfaction of any other remedy of
Tenant arising out of or in connection with this Lease, the relationship of
Landlord and Tenant or Tenant’s use of the Premises, and if Tenant acquires a
lien on or interest in any other properties or assets by judgment or otherwise,
Tenant shall promptly release such lien or interest in such other properties
and assets by executing, acknowledging and delivering to Landlord an instrument
to that effect prepared by Landlord’s attorneys.


 


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19.3                           Tenant
shall indemnify Landlord against liability in connection with (a) the conduct
or management of the Premises or of any business therein, or any work or thing
done, or any condition created (other than by Landlord, Superior Landlord or
Superior Mortgagee) in or about the Premises during the Term or during the
period of time, if any, prior to the Commencement Date that Tenant is given
access to the Premises, including, without limitations, the performance of any
Alterations by or on behalf of Tenant, (b) any act, omission or negligence of
Tenant or any subtenant or licensee or their respective employees, agents
contactors, or invitees, (c) any accident, injury or damage, (unless caused
solely by the negligence or willful misconduct of Landlord, Superior Landlord
or Superior Mortgagee) occurring in, at or upon the Premises, (d) the failure
of Tenant or any subtenant or licensee or their respective employees, agents,
contractors, or invitees to comply with those Legal Requirements and Insurance
Requirements which are to be complied with by Tenant pursuant to the terms of
this Lease, or (e) any other breach of default by Tenant under this Lease.


 


19.4                           Landlord
shall indemnify Tenant against liability in connection with (a) Landlord’s
operation or management of the Building (other than the Premises), or any work
or thing done, or any condition created, by Landlord in or about the Building during
the Term, (b) any act, omission or negligence of Landlord or its employees,
agents, contractors or invitees, (c) the failure of Landlord or its employees,
agents, contractors or invitees to comply with those Legal Requirements and
Insurance Requirements which are to be complied with by Landlord pursuant to
the terms of this Lease, or (d) any other breach or default by Landlord under
this Lease.


 


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19.5                           If any
claim, action or proceeding is made or brought against a party indemnified
under Section 19.3 or 19.4 hereof (“Indemnitee”), then upon demand by
Indemnitee, the indemnifying party (“Indemnitor”), at Indemnitor’s sole cost
and expense, shall resist or defend such claim, action or proceeding in Indemnitee’s
name, if necessary, by the attorneys for Indemnitor’s insurance carrier (if
such claim, action or proceeding is covered by insurance), or otherwise by such
attorneys as Indemnitee shall approve, which approval shall not be unreasonably
withheld or delayed, and Indemnitee shall cooperate, at no cost to itself
unless reimbursed by Indemnitor, with Indemnitor’s counsel or such insurance
carrier, in the defense of such claim. Indemnitee shall not enter into any
settlement of any such claim without the prior written consent of Indemnitor,
such consent not to be unreasonably withheld. Indemnitee shall notify
Indemnitor promptly of any claim, action or proceeding made or brought against
Indemnitee as to which indemnification may be sought hereunder. If Indemnitee
shall fail to timely notify Indemnitor of a claim and, as a result of such
failure, Indemnitor’s insurance coverage is prejudiced, or Indemnitor is
otherwise materially prejudiced in the defense of such claim, Indemnitor shall
be released from its obligation to indemnify Indemnitee, but only to the extent
of such prejudice.


 


ARTICLE 20


 


DAMAGE OR DESTRUCTION


 


20.1                           If the
Building is partially or totally damaged or destroyed by fire or other casualty
(and this Lease is not terminated as provided in this Article), Landlord shall,
at Landlord’s cost and expense, repair the damage and restore and rebuild the
Building (except for Tenant’s Property) with reasonable diligence after notice
to it of the damage or destruction.


 


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20.2                           If all
or part of the Premises is damaged or destroyed or rendered completely or
partially untenantable by fire or other casualty, Fixed Rent and any Additional
Charges payable under Article 4 and Article 5 shall be reduced in the proportion
that the untenantable area of the Premises bears to the total rentable square
feet of the Premises for the period from the date of the damage or destruction
to (a) the date the damage to the Premises is substantially repaired and
possession thereof is tendered to Tenant or (b) if the Building and not the
Premises is so damaged or destroyed, the date on which the Premises is made
tenantable; provided, however, should Tenant reoccupy a portion
of the Premises during the period in which repair work is taking place and
prior to the date the Premises is substantially repaired or made tenantable,
Fixed Rent and any Additional Charges payable under Article 4 and Article 5
allocable to such reoccupied portion, based upon the proportion which area of
the reoccupied portion of the Premises bears to the total rentable square feet
of the Premises, shall be payable by Tenant from the date of such occupancy.


 


20.3                           If
the Premises is materially (i.e., 50% or more) damaged or destroyed by
fire or other casualty, or if the Building is so damaged or destroyed by fire
or other casualty (whether or not the Premises is damaged or destroyed) that
its repair or restoration requires the expenditure (as reasonably estimated by
a reputable contractor or architect designated by Landlord) of more than 40% of
the full insurable value of the Building immediately prior to the fire or other
casualty (each a “Substantial Casualty”), then in either such case Landlord may
terminate this Lease by giving Tenant notice to such effect within one hundred
eighty (180) days after the date of the fire or other


 


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casualty and Fixed Rent and any Additional Charges payable under
Article 4 and Article 5 shall be prorated and adjusted as of the date of such
damage or destruction.


 


20.4                           If a
Substantial Casualty shall occur and Landlord shall not elect to terminate this
Lease under Section 20.3 hereof, Landlord shall send a notice to Tenant within
ninety (90) days thereafter setting forth Landlord’s estimate of the length of
time necessary to restore the Premises to a tenantable condition. If Landlord’s
estimate exceeds eighteen (18) months from the date of the Substantial
Casualty, then Tenant may elect to terminate this Lease upon written notice to
Landlord within fifteen (15) days after receipt of Landlord’s notice. If Tenant
does not elect to terminate this Lease, and the restoration of the Premises is
not substantially completed within such 18-month period, then Tenant shall have
the right to terminate this Lease upon notice to Landlord effective as of the
sixtieth day following Tenant’s termination notice, provided the restoration
has not been substantially completed by such sixtieth day.


 


20.5                           Tenant
shall not be entitled to terminate this Lease except as set forth in Section
20.4, and no damages, compensation or claim shall be payable by Landlord for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Premises or of the Building pursuant to this
Article. Landlord shall use reasonable efforts to make such repair or
restoration in such manner as not unreasonably to interfere with Tenant’s use
and occupancy of the Premises, but Landlord shall not be required to do such
repair or restoration work at times other than during Business Hours, except
for work of a type which is customarily done during non-Business Hours in other
Class A office buildings in midtown Manhattan.


 


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20.6                           Landlord
will not carry insurance of any kind on Tenant’s Property and shall not be
obligated to repair any damage to or replace Tenant’s Property.


 


20.7                           The
provisions of this Article shall be deemed an express agreement governing any
case of damage or destruction of the 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
and are hereby waived by the parties hereto.


 


ARTICLE 21


 


EMINENT DOMAIN


 


21.1                           Except
as otherwise provided in Section 21.5, if all or substantially all of the
Building or the Premises is taken by condemnation or in any other manner for
any public or quasi-public use or purpose, this Lease shall terminate as of the
date of vesting of title on such taking (“Date of Taking”), and Fixed Rent and
any Additional charges payable under Article 4 and Article 5 shall be prorated
and adjusted as of such date.


 


21.2                           Except
as otherwise provided in Section 21.5, if any material part (but less than all
or substantially all) of the Building or the Land is so taken, this Lease shall
be unaffected by such taking, except that (a) Landlord may, at its option, terminate
this Lease by giving Tenant notice to that effect within ninety (90) days after
the Date of Taking, and (b) if 25% or more of the Premises is so taken and the
remaining area of the Premises is not reasonably sufficient for Tenant to
continue feasible operation of its business, Tenant may terminate this Lease by
giving Landlord notice to that effect within ninety (90) days after the Date of
Taking. This Lease shall terminate on the date that


 


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such notice from Landlord or Tenant to the other shall be given, and Fixed Rent and Additional Charges
shall be prorated and adjusted as of such termination. Upon such partial taking and this Lease continuing in force as to
any part of the Premises, Fixed Rent and Tenant’s Tax Percentage and Tenant’s
Operating Percentage shall be equitably adjusted according to the rentable area
remaining.


 


21.3                           Except
as otherwise provided in Section 21.5, 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 or otherwise and Tenant
shall receive no part of such award. Tenant hereby assigns to Landlord all of
Tenant’s right, title and interest in and to all such awards or payments. The
foregoing, however, shall not preclude Tenant from recovering a separate award
for Tenant’s moving expenses and Tenant’s Property if such award does not
reduce and is not payable out of the award for the Property.


 


21.4                           Except
as otherwise provided in Section 21.5, in the event of any taking of less than
the whole of the Building and/or Land which does not result in termination of
this Lease, Landlord, whether or not any award or awards shall be sufficient
for the purpose, shall proceed with reasonable diligence to repair the
remaining parts of the Building (other than Tenant’s Property) to substantially
their former condition to the extent that same is feasible (subject to
reasonable changes which Landlord deems desirable) and so as to constitute the
Building complete and tenantable.


 


21.5                           If the
temporary use or occupancy of all or any part of the Premises is taken by
condemnation or in any other manner for any public or quasi-public use or
purpose for a duration of one year or less, this Lease and the Term shall
remain


 


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unaffected by such taking and Tenant shall continue to be responsible
for all of its obligations under this Lease (except to the extent prevented
from so doing by reason of such taking). In such event Tenant shall be entitled
to claim, prove and receive the entire award for such taking unless the period
of temporary use or occupancy extends beyond the Expiration Date, in which
event Landlord shall be entitled to claim, prove and receive that portion of
the award attributable to the restoration of the Premises and the balance of
such award shall be apportioned between Landlord and Tenant as of the
Expiration Date. If such temporary use or occupancy terminates prior to the Expiration
Date, Tenant, at its own expense, shall restore the Premises as nearly as
possible to its condition prior to the taking.


 


ARTICLE 22


 


SURRENDER AND HOLDING OVER


 


22.1                           On the
Expiration Date or on any earlier termination of this Lease or on any reentry
by Landlord on the Premises, Tenant shall quit and surrender the Premises to
Landlord “broom clean” and in good order, condition and repair, except for
ordinary wear and tear, damage or destruction by fire and other casualty and
such other damage as Landlord is required to repair or restore under this
Lease, and Tenant shall remove all Tenant’s Property therefrom except as
otherwise expressly provided in this Lease. No act or thing done by Landlord or
its agents or employees shall be deemed an acceptance of a surrender of this
Lease or the Premises, and no agreement to accept such surrender shall be valid
unless in writing and signed by Landlord.


 


22.2                           If
Tenant remains in possession of the Premises after the termination of this
Lease without the execution of a new lease, Tenant, at the option of Landlord,
shall be deemed to be occupying the Premises as a Tenant from month to


 


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month, subject to all of the other terms and conditions of this Lease
insofar as the same are applicable to a month-to-month tenancy, but at a
monthly rental equal to 150% of the monthly Fixed Rent last payable by
Tenant hereunder, plus all Additional Charges payable hereunder. In addition,
Tenant will indemnify, and hold Landlord harmless from all loss, damage or
expense that Landlord may suffer or incur (including, without limitation,
losses resulting from Landlord’s inability to give possession of the Premises
to another tenant or to any owner in fee of the Property or any Superior
Landlord) resulting from such holding over by Tenant. Nothing contained in this
Section shall (i) imply any right of Tenant to remain in the Premises after the
termination of this Lease without the execution of a new lease, (ii) imply any
obligation of Landlord to grant a new lease or (iii) be construed
to limit any right or remedy that Landlord has against Tenant as a holdover
tenant or trespasser.


 


22.3                           Tenant
expressly waives, for itself and for any person claiming through or under
Tenant, any rights which Tenant or any such person may have under the
provisions of Section 2201 of the New York Civil Practice Law and Rules and of
any similar or successor law of same import then in force, in connection with
any holdover proceedings which Landlord may institute to enforce the terms and
conditions of this Lease.


 


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ARTICLE 23


 


DEFAULT


 


23.1                           This
Lease is subject to the limitations that whenever Tenant makes an assignment
for the benefit of creditors, or files a voluntary petition under the U.S.
Bankruptcy Code or any successor thereto or any state law dealing with relief
of debtors (collectively the “Insolvency Laws”), or an involuntary petition
alleging an act of bankruptcy or insolvency is filed against Tenant under any
Insolvency Laws, or whenever a petition is filed by or against Tenant under the
reorganization provisions of any Insolvency Laws, or whenever a petition is
filed by Tenant under the arrangement provisions of any Insolvency Laws, or
whenever a receiver of Tenant or of or for the property of Tenant is appointed,
then Landlord (a) if such event occurs without the acquiescence of Tenant, at
any time after the event continues for sixty (60) days, or (b) in any other
case at any time after the occurrence of any such event, may give Tenant a
notice of intention to terminate this Lease at the expiration of five days from
the date of service of such notice of intention, and upon the expiration of
said five-day period this Lease, whether or not the Term had commenced, shall
terminate with the same effect as if that day were the Expiration Date, but
Tenant shall remain liable for damages as provided in Article 25.


 


23.2                           This
Lease is subject to the further limitations that:


 


(a)                                  if
Tenant defaults in the payment of any Fixed Rent or Additional Charges and such
default continues for ten (10) days after notice thereof from Landlord to
Tenant, or


 


(b)                                 if
Tenant, whether by action or inaction, is in default of any of its obligations
under this Lease (other than a default in the payment of Fixed Rent or


 


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Additional Charges) and such default continues and is not remedied
within thirty (30) days after Landlord gives to Tenant a notice specifying the
same, or, in the case of a default which with due diligence cannot be cured
within a period of thirty (30) days and the continuance of which for the period
required for cure will not (i) subject Landlord or any Superior Lessor or
Superior Mortgagee to prosecution for a crime (as more particularly described
in Section 9.2) or (ii) result in a default under any Superior Lease or any
Superior Mortgage, if Tenant does not, (x) within said 30-day period advise
Landlord of Tenant’s intention to take all steps necessary to remedy such
default, (y) duly commence within said 30-day period and thereafter diligently
prosecute to completion all steps necessary to remedy the default, and (z)
complete such remedy within a reasonable time after the date of said notice
from Landlord, or


 


(c)                                  if
any event occurs or any contingency arises whereby this Lease, by operation of
law or otherwise, devolves upon or passes to any person other than Tenant,
except as expressly permitted by Article 8, or


 


(d)                                 if
Tenant vacates and abandons the Premises without properly securing the same,


 


then in any of said cases Landlord may give to Tenant a notice of intention
to terminate this Lease at the expiration of ten (10) days from the date of the
service of such notice of intention, and upon the expiration of said ten-day
period this Lease, whether or not the Term had commenced, shall terminate with
the same effect as if that day were the Expiration Date, but Tenant shall
remain liable for damages as provided in Article 25.


 


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ARTICLE 24


 


RE-ENTRY BY LANDLORD


 


24.1                           If
Tenant defaults in the payment of any Fixed Rent or Additional Charges and such
default continues for ten (10) days after notice thereof from Landlord to
Tenant, or if this Lease terminates as provided in Article 23, Landlord or
Landlord’s agents may immediately or at any time thereafter re-enter the
Premises, or any part thereof, either by summary dispossess proceedings or by
any suitable action or proceeding at law, or by force or otherwise, without
being liable for indictment, prosecution or damages therefor, and may repossess
same, and may remove any person therefrom, to the end that Landlord may have,
hold and enjoy the Premises. The word “re-enter” as used herein, is not
restricted to its technical legal meaning. If this Lease is terminated under
the provisions of Article 23, or if Landlord re-enters the Premises under the
provisions of this Article, or in the event of the termination of this Lease,
or of re-entry, 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 Fixed Rent and Additional
Charges payable to the time of such termination of this Lease, or of such
recovery of possession of the Premises by Landlord, as the case may be, and
shall also pay to Landlord damages as provided in Article 25.


 


24.2                           In the
event of a breach or threatened breach by Tenant of any of its obligations
under this Lease, Landlord shall have the right of injunction to enjoin such
breach or threatened breach. 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 such party
may invoke any remedy allowed at law or in equity as if specific remedies were
not provided for herein.


 


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24.3                           If this
Lease is terminated under the provisions of Article 23, or if Landlord
re-enters the Premises under the provisions of this Article, or in the event of
the termination of this Lease, or of re-entry, 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 Rent or Additional Charges due from Tenant at the time of such
termination or re-entry or, at Landlord’s option, against any damages payable by Tenant under Article 25 or pursuant
to law.


 


ARTICLE 25


 


DAMAGES


 


25.1                           If this
Lease is terminated under the provisions of Article 23, or if Landlord
re-enters the Premises under the provisions of Article 24, or in the event of
the termination of this Lease, or of re-entry, 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 pay to Landlord as
damages, at the election of Landlord, either:


 


(a)                                  a
sum which at the time of such termination of this Lease or at the time of any
such re-entry by Landlord, as the case may be, represents the then value of the
excess, if any, of (i) the aggregate amount of Fixed Rent and Additional
Charges which would have been payable by Tenant (conclusively presuming the
average monthly Additional Charges to be the same as were payable for the
twelve-month period, or if less than twelve (12) months have then elapsed since
the Commencement Date, the partial year, immediately preceding such termination
or re-entry) for the period commencing with such earlier termination of this
Lease or the date of any such re-entry,


 


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as the case may be, and ending with the date that would have been the
Expiration Date if this Lease had not so terminated or if Landlord had not so
re-entered the Premises, over (ii)
the aggregate rental value of the Premises for the same period, both discounted
to their present value at the
rate of 4% per annum, or


 


(b)                                 sums
equal to the Fixed Rent and Additional Charges
which would have been payable by Tenant had this Lease not so
terminated, or had Landlord not
so re-entered the Premises, payable upon the due dates therefor (as provided in
this Lease) following such termination or such re-entry until the date that
would have been the Expiration Date if this Lease had not so terminated or if
Landlord had not so re-entered the Premises, provided however, that if Landlord
shall relet the Premises during said period, Landlord shall credit Tenant with
the net rents received by Landlord from such reletting, such net rents to be
determined by first deducting from the gross rents as and when received by
Landlord from such reletting the expenses incurred by Landlord in terminating
this Lease or in re-entering the Premises and in securing possession thereof,
as well as the expenses of reletting, including altering and preparing the
Premises for new Tenants, brokers’ commissions, reasonable attorneys’ fees and
disbursements, and all other expenses, it being understood that any such
reletting may be for a period shorter or longer than what would have been the
unexpired portion of the Term if this Lease had not so terminated or if
Landlord had not so re-entered the Premises, but in no event shall Tenant be
entitled to receive any excess of such net rents 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 subdivision to a credit in respect of any
net rents from a reletting, except to the extent that such net rents are
actually received by Landlord. If the


 


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Premises or any part thereof is relet in combination with other space,
then proper apportionment on a per square foot basis shall be made of the rent
received from such reletting and of the expenses of reletting. If the Premises
or any part thereof is relet by Landlord for what would have been the unexpired
portion of the Term if this Lease had not so terminated, or if Landlord had not
so re-entered the Premises, before presentation of proof of such damages to any
court, commission or tribunal, the amount of rent set forth in any lease(s) in
connection with such reletting shall, prima  facie, be the fair
and reasonable rental value for the Premises, or part thereof, so relet during
the term of the reletting. Landlord shall have the right to relet the Premises
or any part thereof at such rental or rentals and upon such other terms and
conditions, which may include concessions and free rent periods, as Landlord,
in its sole discretion, shall determine. Landlord shall not be liable in any
way for its failure or refusal to relet the Premises or any part thereof, or if
the Premises or any part thereof is relet, for its failure to collect the rent
under such reletting, and no such refusal or failure to relet or failure to
collect rent shall release or affect Tenant’s liability for damages or
otherwise under this Lease.


 


25.2                           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 would have expired if this Lease had not so terminated or had Landlord
not so re-entered the 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 of Tenant hereunder. Nothing
herein contained shall be construed to limit or


 


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prejudice the right of Landlord to prove for and obtain as damages by
reason of the termination of
this Lease or re-entry on the 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 is greater than, equal to, or less
than any of the sums referred to in Section 25.1.


 


25.3                           In
addition, if this Lease is terminated under the provisions of Article 23, or if
Landlord re-enters the Premises under the provisions of Article 24, Tenant
agrees that:


 


(a)                                  the
Premises then shall be in the same condition as that in which Tenant has agreed
to surrender the same to Landlord on the Expiration Date,


 


(b)                                 Tenant
shall have performed prior to any such termination or re-entry any obligation
of Tenant contained in this Lease for the making of any Alteration or for
restoring or rebuilding the Premises or the Building, or any part thereof, and


 


(c)                                  for
the breach of any obligation of Tenant set forth above in this Section,
Landlord shall be entitled immediately, without notice or other action by Landlord, to recover, and Tenant
shall pay as and for liquidated damages therefor the cost of performing such
obligation (as estimated by an independent contractor selected by Landlord).


 


ARTICLE 26


 


WAIVERS


 


26.1                           Tenant,
on behalf of itself and any and all persons claiming through or under Tenant,
does hereby waive and surrender all right and privilege which


 


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it, they or any of them might have under or by reason of any present or
future law, to redeem the
Premises or to have a continuance of this Lease after being dispossessed or ejected therefrom by process of law
or under the terms of this Lease or after the termination of this Lease.


 


26.2                           If
Tenant is in arrears in payment of Fixed Rent or Additional Charges, Tenant
waives its right, if any, to designate the items to which any payments made by
Tenant are to be credited, and Landlord may apply any payments made by Tenant to such items as Landlord
sees fit, irrespective of any designation or request by Tenant as to the items to which any such payments shall be
credited.


 


26.3                           To the
maximum extent permitted by law, Landlord and Tenant hereby waive trial by jury
in any action, proceeding or counterclaim brought by either against the other
on any matter arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant’s use or occupancy of the Premises,
including any claim of injury or damage, and any emergency and other statutory
remedy in respect thereof.


 


26.4                           Tenant
shall not interpose any counterclaim in any summary proceeding commenced by
Landlord to recover possession of the Premises (other than mandatory
counterclaims) and shall not seek to consolidate such proceeding with any
action which may have been or will be brought by Tenant or any other person.


 


26.5                           The
failure of either party to insist in any one or more instances upon the strict
performance of any one or more of the obligations contained in this Lease, or
to exercise any election herein contained, shall not be construed as a waiver
or relinquishment for the future of the performance of such one or more
obligations


 


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contained in this Lease or of the right to exercise such election, but
same shall continue and remain in full force and effect in respect of any
subsequent breach, act or omission. The receipt by Landlord of Fixed Rent or
Additional Charges with knowledge of breach by Tenant of any obligation
contained in this Lease shall not be deemed a waiver of such breach.


 


ARTICLE 27


 


CURING TENANT’S DEFAULTS AND

COSTS OF ENFORCEMENT


 


27.1                           If
Tenant defaults in the performance of any of Tenant’s obligations under this Lease,
Landlord, without thereby waiving such default, may (but shall not be obligated
to) perform same for the account and at the expense of Tenant, without notice
in case of emergency, and in any other case only if such default continues
after the expiration of thirty (30) days from the date Landlord gives Tenant
notice of the default. 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, including
reasonable attorneys’ fees and disbursements, involved in collecting or
endeavoring or endeavoring to enforce any rights against Tenant, 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 Premises after default by Tenant or upon the
Expiration Date or sooner termination of this Lease, and interest on all sums
advanced by Landlord under this Section at the Lease Interest Rate, may be sent
by Landlord to Tenant monthly, or immediately, at Landlord’s option, and such
amounts shall be due and payable in accordance with the terms of such bills.


 


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ARTICLE 28


 


BROKER


 


28.1                           Tenant
represents and warrants that no broker procured this Lease and that Tenant had
no conversations or negotiations with any broker concerning the leasing of the
Premises. Tenant shall indemnify Landlord against liability in connection with
a breach of Tenant’s representation and warranty in this Section and in
connection with any claim for a brokerage commission arising out of any
conversations or negotiations had by Tenant with any broker. Landlord
represents and warrants that no broker procured this Lease. Landlord shall
indemnify Tenant against liability in connection with a breach of Landlord’s
representation and warranty in this Section and in connection with any claim
for a brokerage commission arising out of any conversations or negotiations had
by Landlord with any broker.


 


ARTICLE 29


 


NOTICES


 


29.1                           Any
notice, consent, approval or other communication required or permitted to be
given by either party to the other or to any Superior Lessor or Superior Mortgagee
(collectively, “Notices” and individually, “Notice”) must be in writing and,
except as otherwise provided in the succeeding Sections, shall be deemed to
have been properly given only if sent by registered or certified mail, return
receipt requested, posted in a United States post office station or letter box
in the continental United States, addressed to Landlord or Tenant as the
receiving party at its address set forth at the head of this Lease (Attention:
Director of Real Estate Services in the case of Notices to Landlord), and
addressed to any Superior Lessor or Superior Mortgagee to it at the last
address of which Landlord or Tenant (whichever may be giving the Notice) was
notified.


 


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A Notice shall be deemed to have been given on the third business day
after the day so mailed. Either party may, by notice as aforesaid, designate a
different address for Notices intended for it. At any time that Tenant consists
of more than one person, a Notice of Tenant shall be effective if given to any
one of said persons.


 


29.2                           Notwithstanding
the provisions contained in Section 29.1, any Notice from Landlord to Tenant of
a default by Tenant hereunder may be given by hand delivery, with a concurrent
copy of such Notice sent to Tenant by mail as provided in Section 29.1; such
Notice of default given in that manner will be deemed given when hand
delivered.


 


29.3                           Notwithstanding
the provisions contained in Section 29.1, (a) Notices from Tenant to Landlord
requesting after-hours or special services pursuant to Article 16 or Article 17
shall be given by hand delivery to the Building manager or any other person in
the Building designated by Landlord to receive such Notices, and (b) any Notice
may be given by telefax or hand delivery either in case of an emergency or in
case United States certified and registered mail are both not then operating.
Such Notices will be deemed given on the date so sent by telefax or hand
delivery.


 


29.4                           Landlord
shall have the right to assume that any Notice from Tenant signed by any person
purporting to be an officer of Tenant if Tenant is a corporation, member of
Tenant if Tenant is a limited liability company or a partner in Tenant if
Tenant is a partnership is duly authorized and approved by and binding on
Tenant, and Tenant shall be bound by such Notice whether or not the person
signing the Notice was actually authorized and approved by Tenant.


 


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ARTICLE 30


 


ESTOPPEL CERTIFICATES AND

MEMORANDUM OF LEASE


 


30.1                           Each
party shall, at any time and from time to time, as requested by the other
party, execute and deliver to the other party within ten (10) days after
receipt of such request a statement (a) certifying that this Lease is
unmodified and in full force and effect (or if modified, that same is in full
force and effect as modified and stating the modifications), (b) certifying the
dates to which Fixed Rent and Additional Charges have been paid, (c) stating
whether or not, to the best knowledge of the signing party, the other party is
in default in performance of any of its obligations under this Lease, and, if
so, specifying each such default of which the signing party has knowledge, and
(d) stating whether or not, to the best knowledge of the signing party, any
condition or event exists which with the giving of notice or passage of time,
or both, would constitute such a default, and, if so, specifying each such
condition or event. Any statement delivered pursuant to this Section shall be
deemed a representation and warranty that may be relied upon by the party
requesting the statement and by others with whom such party may be dealing,
regardless of independent investigation. Tenant also shall include in any such
statement such other information concerning this Lease as any prospective
Superior Mortgagee or Superior Lessor may require or as Landlord may reasonably
request.


 


30.2                           Tenant
shall not record this Lease nor any short form or memorandum of lease, nor any
amendment or modification of this Lease.


 


ARTICLE 31


 


FORCE MAJEURE


 


31.1                           The
obligations of Tenant or Landlord under this Lease (other than the obligation
to pay Fixed Rent and Additional Charges) shall not be affected, impaired


 


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or excused and neither party shall have any liability to the other
(regardless of whether such party is required to proceed with reasonable
diligence or to use reasonable efforts), because such party is unable to
fulfill, or is delayed in fulfilling, any of its obligations under this Lease
by reason of any of the following (“Force Majeure Events”): fire or other
casualty; acts of God; war; riot or other civil disturbance; accident;
emergency; strike or other labor trouble; governmental preemption of priorities
or other controls in connection with a national or other public emergency;
difficulty in securing proper amounts of or failure or defect in the supply or
quality of fuel, gas, steam, water, electricity, supplies or labor; or any
other event preventing or delaying Landlord from fulfilling any obligation,
whether similar or dissimilar, beyond such party’s reasonable control.


 


ARTICLE 32


 


CONSENTS


 


32.1                           If
Tenant requests Landlord’s consent and Landlord fails or refuses to give such
consent, Tenant shall not be entitled to any damages for any withholding by
Landlord of its consent. Tenant’s sole remedy for Landlord’s refusal to give
the requested consent shall be an action for specific performance or
injunction. Furthermore, Tenant shall be entitled to seek specific performance
an injunction only in those cases where this Lease provides that Landlord shall
not unreasonably withhold its consent or where as a matter of law Landlord may
not unreasonably withhold its consent.


 


ARTICLE 33


 


RENT CONTROL


 


33.1                           If any
Fixed Rent or Additional Charges shall become uncollectible, reduced or
required to be refunded because of any Legal Requirements,


 


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Tenant shall enter into such agreements and take such other steps
(without additional expense to
Tenant) as Landlord requests 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, whether during the Term or after the Expiration Date,
(a) Fixed Rent and Additional Charges shall be payable in accordance with the
amounts reserved herein for the periods following such termination and (b)
Tenant shall pay to Landlord, to the maximum extent legally permissible, an
amount equal to (i) the Fixed Rent and Additional Charges that would have been
paid pursuant to this Lease but for such legal rent restriction, less (ii) the
rent and additional rent actually paid by Tenant during the period such legal
rent restriction was in effect.


 


ARTICLE 34


 


MISCELLANEOUS


 


34.1                           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
they are expressly set forth in this Lease. All prior understandings and
agreements between the parties are merged in this Lease, which alone fully and
completely expresses the agreement of the parties and which are entered into
after full investigation.


 


34.2                           No
agreement shall be effective to change, modify, waive, release, discharge,
terminate or effect an abandonment of this Lease, in whole or in part, unless
such agreement is in writing, refers expressly to this Lease and is signed by
the party


 


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against whom enforcement of the change, modification, waiver, release,
discharge, termination or effectuation of the abandonment is sought.


 


34.3                           Except
as otherwise expressly provided in this Lease, the obligations under 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 8 shall operate to vest any rights in any successor or assignee of
Tenant and (b) the provisions of this Section shall not be construed as
modifying the conditions of limitation contained in Article 23. No provision in
this Lease shall be construed for the benefit of any third party except as
expressly provided herein.


 


34.4                           Submission
by Landlord of this Lease or other documents pertaining to the subject matter
hereof for review and/or execution by Tenant shall not confer any rights or
impose any obligations on either party unless and until both Landlord and
Tenant execute this Lease and duplicate originals thereof are delivered to the
respective parties.


 


34.5                           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. If any
provision of this Lease or the application thereof to any person or
circumstance, for any reason and to any extent, is invalid or unenforceable,
the remainder of this Lease and the application of that provision to other
persons or circumstances shall not be affected but rather shall be enforced to
the extent permitted by law. The table of contents, captions, headings and
titles in this Lease are solely for convenience of reference and shall not
affect its interpretation. This Lease shall be construed without


 


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regard to any presumption or other rule requiring construction against
the party causing this Lease to be drafted. Each obligation of Tenant under
this Lease shall be deemed and construed as a separate and independent covenant
of Tenant, not dependent on any other provision of this Lease.


 


34.6                           All
terms and words used in this Lease, regardless of the number or gender in which
they are used, shall be deemed to include any other number and any other gender
as the context may require.


 


34.7                           This
Lease may be executed in counterparts and shall constitute the agreement of
Landlord and Tenant whether or not their signatures appear in a single copy
hereof.


 


34.8                           If
Landlord (i) fails for any reason to provide heat, water, elevator, electric
and/or other services required to be furnished by Landlord under this Lease, or
(ii) fails to complete repairs or other necessary work required to be performed
by Landlord pursuant to this Lease, (and such failure shall not have been
caused by a casualty, condemnation, force majeure, the negligence or default of
Tenant, or any subtenant or occupant of the Premises or portion thereof (other
than a Recapture Subtenant), or any agents or employees of the foregoing) and,
in either such case, such failure substantially and materially interferes with
Tenant’s use of all or any portion of the Premises thereby requiring, as would
be determined by using commercially reasonable standards, Tenant to discontinue
such use for more than five (5) consecutive business days (an “Interruption”),
and such failure shall not have been caused by the negligence or default of
Tenant, or any subtenant or occupant of the Premises or portion thereof, (other
than a Recapture Subtenant), or any agents or employees of the foregoing,


 


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then and in that event, following written notice to Landlord thereof,
the Fixed Annual Rent and Additional Charges hereunder allocable to such
portion or portions of the Premises shall abate (pro rata according to the
duration of the interference and the proportion of the total usable floor area
of the disruption.


 


34.9                           Tenant
presently has data closets located on the 9th floor and concourse of the
Building (the “Data Closets”). Provided that this Lease is in full force and
effect, Tenant during the term of this Lease may access the Data Closets or any
Replacement Data Closet (as defined herein) on reasonable advance notice to
Landlord. Tenant with respect to the Data Closets shall comply with all other terms
of this Lease. Landlord, at its cost, may relocate (a “Replacement Data Closet”)
the Data Closets or a Replacement Data Closet to other locations in the
Building provided such Replacement Data Closet is of substantially equal
quality and size as the one it is replacing, Landlord will not disconnect the
Data Closets or a Replacement Data Closets until the Replacement Data Closets
have been completed.


 


ARTICLE 35


 


SIGNAGE


 


35.1                           Subject
to the provisions of Section 35.2, Tenant shall have the right to place signs (“Upper
Bank  Sign”) containing Tenant’s name, or, subject to the
reasonable consent of Landlord, any Affiliate of Tenant which is in occupancy
of a material portion of the Premises, on the interior Building wall adjacent
to the upper bank elevator lobby; provided, that such signage shall be
installed only in the locations on such wall reasonably acceptable to Landlord,
shall meet the design criteria then in effect for the Building and does not
exceed 12 by 36 inches. Tenant may place signage in 14.12466% of the shadow
boxes in the Building lobby, containing Tenant’s name or


 


95





















 


subject to the reasonable consent of Landlord any Affiliate of Tenant
which is in occupancy of a material portion of the Premises, provided that
Landlord may reasonably designate the shadow boxes, and the signage will meet
the design criteria then in effect for the Building. All such signage shall be
installed, maintained and repaired by Landlord at Tenant’s reasonable expense.
During such periods that Tenant has installed an Upper Bank Sign, Landlord
agrees that it will not allow any other tenant of the building to place in the
same vicinity of the Upper Bank Sign a sign that is equal to or larger than
Tenant’s unless such tenant is in occupancy in the Building of 100,000 or more
square feet.


 


35.2                           The
provisions of Section 35.1 shall be null and void and of no further force and
effect, and Landlord shall have the right to remove any signage theretofore
installed pursuant to Section 35.1, at the cost of Tenant, (i) during any
period that Tenant together with its Affiliates in the Premises shall be in
occupancy (x) of less than 20,000 rentable square feet in the Building or (y)
between 20,000 and 80,000 square feet and the Premises is not the principal
executive offices of Warner Music Group Inc. (which right to install such sign
as provided in Section 35.1 shall be reinstated when and if such occupancy
requirement is satisfied) or (ii) if the Term shall expire or terminate.


 


35.3                           If a
tenant has a sign (the “Large Tenant Sign”) in the upper bank elevator
lobby and such tenant is in occupancy of more than 100,000 square feet in the
Building, then provided that (i) this Lease is still in full force and effect,
and (ii) Tenant still continues to occupy at least 50,000 square feet and the
Building is the worldwide headquarters for Warner Music Group Inc., then as
long as Tenant continues to meet conditions (i) and (ii); Tenant at its
election, can maintain a sign in the upper bank


 


96





















 


elevator lobby that is proportional to the Large Tenant Sign. This
signage right is in lieu of the Upper Bank Sign. This can be
illustrated by the following example: If a Large Tenant Sign is 1,000 square
inches and such tenant is in occupancy of 160,000 square feet and Tenant is in
occupancy of 80,000 square feet, then Tenant if it elects may maintain a sign
of 500 square inches in the upper bank elevator lobby.


 


ARTICLE 36


 


[INTENTIONALLY OMITTED.]


 


ARTICLE 37


 


ADDITIONAL SPACE


 


37.1                           Landlord
agrees, subject to the terms of this Article 37, to deliver to Tenant and
Tenant agrees to accept and lease on or after May 1, 2004 the entire rentable
portion of the 32nd floor and the 33rd floor (collectively, the “Additional
Floors” and individually an “Additional Floor”).


 


37.2                           Landlord
shall not be required to perform any work to the Additional Floors except that
it shall deliver such to Tenant in vacant and broom clean condition. In the
event Tenant is in default hereunder or this Lease is no longer in full force
and effect, then Landlord at its option will not be required to deliver the
Additional Floors. Landlord may deliver the Additional Floors on separate
dates.


 


37.3                           If
Landlord fails to deliver either or both of the Additional Floors the term of
this Lease shall not be extended nor will Tenant have a right to cancel this
Lease. Tenant’s sole remedy will be if an Additional Floor has not been
delivered to Tenant by May 1, 2005 (as such date may be extended due to a Force
Majeure Event or for any delay caused by Tenant) is to deliver a notice to
Landlord that Tenant is electing to cancel its obligation to accept delivery of
such Additional Floor. If Landlord fails to


 


97





















 


deliver such Additional Floor within 30 days after Tenant delivers such
notice, then Tenant’s obligation to accept and Landlord’s obligation to deliver
such Additional Floor shall be terminated. This Section shall be an express
provision to the contrary for purposes of Section 223-a of the New York Real
Property Law and any other law of like import now or hereafter in effect.


 


37.4                           Promptly
after the delivery of each Additional Floor, Landlord and Tenant shall execute
a confirmatory instrument acknowledging the modification of the pertinent terms
of this Lease, including, without limitation, modifying the Rentable Square
Footage of the Premises, Tenant’s Tax Percentage and the Wage Rate Multiple as
a result of Landlord’s delivery of the Additional Floor. Exhibit H designates
Rentable Square Footage, Tenant’s Tax Percentage and Wage Rate Multiple for
each of the Additional Floors pursuant to this Article.


 


ARTICLE 38


 


LANDLORD RELOCATION OPTION


 


38.1                           Landlord
may, at its option, on only one occasion, elect by notice to Tenant to
substitute for all or part of the 12th Floor of the Premises other office space
in the Building (the “Substitute Space”) provided that such Substitute Space is
on a higher floor in the Building. Landlord will identify in a notice the
portion of the Premises it has elected to recapture (the “Recapture Space”) and
the Substitute Space. To exercise the foregoing right Landlord, at its sole
cost and expense, must relocate Tenant’s installations from the Recapture Space
to the Substitute Space. The Substitute Space shall contain at least 100% of
the useable square foot area of the Recapture Space. Landlord’s notice shall be
accompanied by a plan of the Substitute Space, such notice or


 


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the plan shall set forth the usable square feet of the Substitute Space
and the anticipated date of relocation.


 


38.2                           Tenant
shall vacate and surrender the Recapture Space and occupy the Substitute Space
promptly (and, in any event, no later than five (5) days) after notice that
Landlord has substantially completed (including telephone and data lines, to
the extent existing in the Recapture Space) the work to be performed by
Landlord in the Substitute Space pursuant to this Article, provided that, in
either case, the work shall have been substantially completed on the date
Landlord’s notice states such substantial completion has occurred. In any such
event, from and after the earlier of the date on which Tenant vacates and
surrenders the Recapture Space or the date which is 5 days after notice that
Landlord has substantially completed the work to be performed by Landlord
in the Substitute Space pursuant to this Section, this Lease shall no longer
apply to the Recapture Space, except with respect to obligations which accrued
on or prior to such surrender date, and shall apply to the Substitute Space,
and otherwise Tenant shall pay the same Fixed Rent and Additional Charges with
respect to the Substitute Space as was payable with respect to the Recapture
Space.


 


38.3                           Landlord
shall have no liability to Tenant with respect to such Substitute Space other
than Landlord shall (a) promptly reimburse Tenant for Tenant’s reasonable
out-of-pocket expenses (taking into account the nature of the move) of moving
from the Recapture Space to the Substitute Space and (b) at Landlord’s sole
expense, prepare the Substitute Space in substantially the same manner as the
Recapture Space including any Alterations made to such space but taking into
account the condition


 


99





















 


of the Recapture Space on the
date Landlord gives such notice to Tenant that it seeks to relocate Tenant.


 


38.4                           Tenant
shall cooperate with Landlord so as to facilitate the prompt completion by
Landlord of its obligations under this Article and the prompt surrender by
Tenant of the Recapture Space and to relocate to the Substitute Space. Without
limiting the generality of the preceding sentence, Tenant shall provide to
Landlord promptly any approvals or instructions and any plans and
specifications or any other information reasonably requested by Landlord.
Landlord shall have the right to remove any floor covering, wall covering,
cabinet work, decoration and any Tenant’s property, to the Substitute Space.


 


ARTICLE 39


 


SUPERIOR LEASE


 


39.1                           Landlord
represents and warrants that (i) the Superior Lease currently in effect is that
certain Indenture of Lease dated March 11, 1993 originally between 75
Plaza/West 51st Associates and Time Warner Inc. (the “Master Lease”), (ii) the Master
Lease is in full force and effect, (iii) Landlord has furnished to Tenant a
full and complete copy of the Master Lease and all modifications and amendments
thereto, (iv) Landlord has not heretofore assigned, mortgaged, pledged,
encumbered or otherwise transferred any interest in the Master Lease or sublet
the Premises, which sublease is still in effect, (v) the basic term of the
Master Lease (exclusive of any extensions or renewals of the term thereof)
expires after the Expiration Date, (vi) Landlord received no notice from the
Superior Lessor of default by Landlord which remains uncured, and (vii) no
consent of the Superior Lessor under the Master Lease is required in connection
with the execution and delivery of this Lease.


 


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39.2                           Landlord
agrees to use its good faith efforts (short of litigation or arbitration
or payment of any sum of money not required to be paid pursuant to the Master
Lease) to obtain from the Superior Lessor any required approvals or consents
reasonably requested by Tenant, and Landlord shall forward to the Superior
Lessor without delay any requests as Tenant may submit for approval and/or
consent from the Superior Lessor to which the Landlord has consented.


 


39.3                           Landlord
covenants and agrees that (except for those matters which arise and Tenant’s
default hereunder) it shall not, by any act or omission, do or permit to be
done anything that would cause the Master Lease to be amended (which amendment
adversely affects Tenant’s interest under this Lease), cancelled, terminated
(except as a result of a casualty or condemnation) or forfeited, shall pay when
due to the Superior Lessor all rent and additional rent that is payable
pursuant to the terms of the Master Lease and shall perform all the other
terms, covenants and conditions contained in the Master Lease (including,
without limitation, the maintenance of the insurance on the Building required
thereunder), subject to the obligation of Tenant to observe and perform the
terms, covenants and conditions of this Lease.


 


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


 


	
   

  	
  Landlord:

  
	
   

  	
   

  
	
   

  	
  HISTORIC TW INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Philip R. Pitruzzello

  	
   

  
	
   

  	
   

  	
  Name: Philip R. Pitruzzello

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Tenant:

  
	
   

  	
   

  
	
   

  	
  WARNER MUSIC GROUP INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Janice Cannon

  	
   

  
	
   

  	
   

  	
  Name: Janice Cannon

  
	
   

  	
   

  	
  Title:  Assistant Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Tenant’s Federal Tax Identification Number:

  
	
   

  	
   

  
	
   

  	
  13 - 356 5869

  	
   

  
					



 





















 


EXHIBIT A


 


FLOOR PLANS OF PREMISES


 





















 


EXHIBIT B


 


LAND


 


All that real property situated in the Borough of Manhattan, City,
County and State of New York, more particularly described as follows:


 


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


 


BEGINNING at a point on the northerly side of West 51st Street, distant
three hundred feet westerly along the same from the corner formed by the
intersection of the said northerly side of West 51st Street with the westerly
side of Fifth Avenue; running thence westerly along the northerly side of West
51st Street, one hundred feet; running thence northerly parallel with the
westerly side of Fifth Avenue, one hundred feet five inches to the center line
of the block between West 51st Street and West 52nd Street; running thence
westerly along said center line of the block, seventy-four feet; running thence
northerly and again parallel with the westerly side of Fifth Avenue, one
hundred feet-five inches to the southerly side of West 52nd Street; running
thence easterly along the southerly side of West 52nd Street, two hundred
seventy-four feet; running thence easterly along the southerly side of West
52nd Street, two hundred seventy-four feet; running thence southerly again
parallel with the westerly side of Fifth Avenue, one hundred feet five inches
to the center line of the block aforementioned; running thence westerly along
said center line of the block, one hundred feet; running thence southerly and
again parallel with the westerly side of Fifth Avenue, one hundred feet five
inches to the northerly side of West 51st Street, at the point or place of
BEGINNING.


 


TOGETHER with easements of light, air and view set forth in an
agreement dated August 29, 1945, recorded in the Office of the Register of the
City of New York, New York County on February 8, 1946 in Liber 4409 of
Conveyances at page 518, and in an agreement dated July 17, 1945 recorded in
said Register’s Office on April 10, 1946 in Liber 4424 of Conveyances at page
206, subject to the terms of said agreements and all other easements, licenses,
privileges, rights and appurtenances related thereto.


 


TOGETHER with all easements, licenses and
privileges hereafter granted to Landlord to use the tunnel connecting the land
and the building to the Rockefeller Center concourse, subject to the terms of
said easements, licenses and privileges.


 





















 


EXHIBIT C


 


[Intentionally omitted.]


 





















 


EXHIBIT D


 


RULES AND REGULATIONS


 


A.1.                          The
rights of each tenant in the common areas of the Building are limited to
ingress to and egress from such tenant’s premises for the tenant and its
employees, subtenants, licensees and invitees, and no tenant shall use, or
permit the use of, the common areas for any other purpose. No tenant shall
invite to the tenant’s premises, or permit the visit of, persons in such
numbers or under such conditions as to interfere with the use and enjoyment of
any of the common areas by any other tenants. Fire exits and fire tower
stairways are for emergency use only, and they shall not be used for any other
purpose by any tenant or any subtenant or licensee of such tenant, or their
respective employees, agents, contractors or invitees. No tenant shall
obstruct, or permit the obstruction of any of the common areas. Landlord
reserves the right to control and operate the common areas and the other public
facilities, as well as any other facilities furnished for the common use of the
tenants, in such manner as Landlord in its reasonable judgment deems best for
the benefit of the tenants generally, including the right to allocate certain
elevators for delivery service and the right to designate which Building
entrances shall be used by persons making deliveries in the Building. No
doormat of any kind whatsoever shall be placed or left in any public hall or
outside any entry door of any tenant’s premises.


 


A.2.                          Landlord
may refuse admission to the Building outside of Business Hours to any person
not known to the watchman or other person in charge or not having a pass issued
by Landlord or the tenant whose premises are to be entered. Landlord may
require all persons admitted to or leaving the Building to provide appropriate


 





















 


identification, in which case Landlord shall supply identification
cards and be reimbursed by the tenant for its identification cards at Landlord’s
cost plus 5%. Each tenant shall be responsible for all persons for whom it
issues any such pass and shall be liable to Landlord for all acts or omissions
of such persons. Each tenant shall promptly notify Landlord of any lost
identification cards and will reimburse Landlord at cost plus 5% for
replacement of identification cards. Landlord shall have the right but shall
not be obligated to require all persons entering the Building to sign a
register, to be announced to the tenant such person is visiting, and/or to be
accepted as a visitor by such tenant or to be otherwise properly identified
(and, if not so accepted or identified, Landlord may exclude such persons from
the Building) and Landlord shall have the right but shall not be obligated to
require persons leaving the Building to sign a register or to surrender the
pass given to such person. Any person whose presence in the Building at any
time shall, in the judgment of the Landlord, be prejudicial to the safety,
character or reputation of the Building or of its tenants may be denied access
to the Building or may be ejected therefrom. During the continuance of any
Force Majeure Events, Landlord may prevent all access to the Building by
closing the doors or otherwise if and to the extent required for the safety of
the tenants and protection of property in the Building. Landlord may institute,
revise and discontinue such security measures, systems and requirements as
Landlord deems appropriate.


 


A.3.                          No
tenant shall obtain or accept for use in its premises drinking water, food,
beverage, towel, barbering, bootblacking, floor polishing, cleaning or other
services from any persons prohibited by Landlord from furnishing such services.
Such


 


2





















 


services shall be furnished only at such hours, and under such
reasonable regulations, as may be fixed by Landlord from time to time.


 


A.4.                          The cost
of repairing any damage to the common areas or to any other public facilities
or to any equipment or other facilities used in common with other tenants, or
to any adjoining building or property, or to any other parts of the Building or
to any equipment or facilities therein, caused by a tenant, subtenant or
licensee of such tenant or their respective employees, agents, contractors or
invitees, shall be paid by such tenant.


 


A.5.                          No
awnings or other projections shall be attached to the outside of the Building.
No curtains, blinds, shades or screens which are different from the standards
adopted from time to time by Landlord for the Building shall be attached to or
hung in, or used in connection with, any exterior window or door of the premises
of any tenant without the prior consent of Landlord. Such curtains, blinds,
shades or screens must be of a quality, type, design and color, and attached in
the manner approved by Landlord. Lighting which is visible
from the outside of the Building shall be in accordance with the standards
adopted from time to time by Landlord for the Building.


 


A.6.                          No
lettering, sign, advertisement, notice or object shall be displayed in or on
the exterior windows or doors, or on the outside of any tenant’s premises, or
at any point inside any tenant’s premises where the same might be visible
outside of such premises, without the prior consent of Landlord. Interior
signs, elevator cab designations and lettering on doors and the Building
directory shall, if and when approved by Landlord, be inscribed, painted or
affixed for each tenant by Landlord at the expense of such tenant, and shall be
of a size, color and style acceptable to Landlord.


 


3





















 


A.7.                          The
sashes, sash doors, skylights, windows and doors that reflect or admit light
and air into the halls, passageways or other common areas shall not be covered or obstructed by any
tenant, nor shall any bottles, parcels or other articles be placed on the window sills or on the
peripheral heating or air conditioning enclosures, if any.


 


A.8.                          No
showcases or other articles shall be put in front of or affixed to any part of
the exterior of the Building or of any tenant’s premises or placed in the
common areas.


 


A.9.                          No noise
which in the judgment of Landlord might disturb other tenants in the Building
shall be made or permitted by any tenant. 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 in the Building.


 


A.10.                    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 locks or the mechanism thereof,
except where keys therefor are given to Landlord. Additional keys for a tenant’s premises and
toilet rooms located outside the tenant’s premises shall be procured only from
Landlord who may make a reasonable charge therefor. Each tenant shall, upon the
termination of its lease, turn over to Landlord all keys to the Building and
any facilities therein, either furnished to, or otherwise procured by, such
tenant, and in the event of the loss of any keys furnished by Landlord, such
tenant shall pay to Landlord the cost thereof. Notwithstanding the foregoing, a
tenant may, subject to obtaining Landlord’s prior consent, install a security
system in its premises which uses master codes or cards instead of keys,
provided that such tenant provides Landlord with the


 


4





















 


master code or card for such system. No tenant shall lend or furnish to
any public messenger the keys to any toilet rooms.


 


A.11.                    All removals,
or the carrying in or out of any safes, freight, furniture, packages, boxes,
crates or any other object or matter of any description must take place during
such hours and in such elevators, and in such manner as Landlord or its agent
may determine from time to time are appropriate. No persons shall be employed
to move safes or other heavy objects unless reasonably acceptable to Landlord
and, if so required by law, unless such persons hold a Master Rigger’s license.
Arrangements must be made by each tenant with Landlord for moving large
quantities of furniture and equipment into or out of the Building. All labor
and engineering costs incurred by Landlord in connection with any moving
specified in this Rule, including a reasonable charge for overhead and profit,
and the cost of overtime or extra work for Landlord’s or Landlord’s agent’s
employees, shall be paid by the tenant to Landlord, on demand.


 


A.12.                    Landlord
reserves the right to inspect all objects to be brought into the Building and
to exclude from the Building all objects which violate any of these Rules and
Regulations or this Lease. Landlord shall have the right but shall not be
obligated to require any person leaving the Building with any package or other
object to submit a pass, listing such package or object, from the tenant from
whose premises the package or object is being removed, but the establishment
and enforcement of such requirement shall not impose any responsibility on
Landlord for the protection of any tenant against the removal of property from
the premises of such tenant. Landlord shall in no way be liable to any tenant
for damages or loss arising from the admission, exclusion or ejection of any
person to or from the premises or the Building under the


 


5





















 


provisions of this Rule or of
Rule 2 hereof. Landlord shall have the right but shall not be obligated to institute a package acceptance
system whereby all packages intended for tenants of the Building are delivered
to a central location designated by Landlord and are thereafter called for by
tenants or redistributed by Landlord’s employees, as Landlord may elect.


 


A.13.                    No tenant
shall occupy or permit any portion of its premises to be occupied for (a) the
possession, storage, manufacture or sale of liquor, narcotics or tobacco in any
form, (b) gambling activities, (c) the conduct of obscene, pornographic or similar
disreputable activities, (d) public assembly purposes, (e) lodging or sleeping,
or (f) any immoral or illegal purpose.


 


A.14.                    Landlord shall
have the right to prohibit any tenant’s advertising or identifying sign which,
in Landlord’s reasonable judgment, tends to impair the reputation of the
Building or its desirability, and upon notice from Landlord such tenant shall
refrain from and discontinue such advertising or identifying sign.


 


A.l5.                       No tenant
shall place a load upon any floor that exceeds the floor load per square foot
that such floor was designed to carry. Landlord shall have the right to
prescribe the weight and position of safes and other objects of excessive
weight, and no safe or other object whose weight exceeds the lawful load for the
area upon which it would stand shall be brought into or kept upon any tenant’s
premises. If in the judgment of Landlord the concentrated weight of any heavy
object should be distributed, the work involved in such distribution shall be
done at the expense of the tenant and in such manner as Landlord shall
determine.


 


6





















 


A.16.                    No machinery
or mechanical equipment other than ordinary portable business machines may be
installed or operated in any tenant’s premises without Landlord’s prior consent
which consent shall not be unreasonably withheld, and in no case (even where
same are of a type so excepted or as so consented to by Landlord) shall any
machines or mechanical equipment be so placed or operated as to disturb other
tenants. Machines and mechanical equipment permitted to be installed and used
in a tenant’s premises shall be so equipped, installed and maintained by such
tenant as to prevent any disturbing noise, vibration or electrical or other
interference from being transmitted from such premises to any other area of the
Building.


 


A.17.                    The
requirements of tenants will be attended to only upon application at the office
of the Building. Employees of Landlord or its managing agent shall not perform
any work or do anything outside of their regular duties unless under special
instructions from Landlord.


 


A.18.                    Canvassing,
soliciting and peddling in the Building are prohibited and each tenant shall
cooperate to prevent same.


 


A.19.                    No tenant
shall cause or permit any unusual or objectionable odors to emanate from its
premises which would annoy other tenants or create a public or private
nuisance. No cooking shall be done in the premises of any tenant except as is
expressly permitted in such tenant’s lease.


 


A.20.                    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 use or


 


7





















 


enjoyment by any other tenant
of its premises, nor shall any tenant install any ventilating,
air-conditioning, electrical or other equipment of any kind which in the
reasonable judgment of Landlord might cause any such impairment or
interference.


 


A.21.                    No acids,
vapors or other materials shall be discharged or permitted to be discharged into the waste lines, vents or flues
of the Building. The water and wash closets and other plumbing fixtures in or
serving any tenant’s premises shall not be used for any purpose other than the
purposes for which they were designed or constructed, and no sweepings,
rubbish, rags, acids or other foreign substances shall be deposited therein.
Nothing shall be swept or thrown into the common areas or into or on any heating or ventilating vents or
registers or plumbing apparatus in the Building, or on adjoining buildings or
land or the street. Any cuspidors or containers or receptacles used as such or
for garbage or similar refuse in the premises of any tenant shall be emptied,
cared for and cleaned by and at the expense of such tenant.


 


A.22.                    All entrance
doors in each tenant’s premises shall be left locked and all windows shall be
left closed by the tenant when the tenant’s premises are not in use. Entrance
doors shall not be left open at any time. Each tenant, before closing and
leaving its premises at any time, shall turn out all lights.


 


A.23.                    Hand trucks
not equipped with rubber tires, side guards and such other safeguards as
Landlord may require shall not be used within the Building. No hand trucks
shall be used in passenger elevators.


 


A.24.                    All windows in
each tenant’s premises shall be kept closed, and all blinds therein above the
ground floor shall be lowered as reasonably required because of the position of
the sun, during the operation of the Building air-conditioning system to


 


8





















 


cool or ventilate the tenant’s
premises. If Landlord elects to install any energy saving film on the windows
of the Building or to install energy saving windows in place of the present
windows, each tenant shall cooperate with the reasonable requirements of
Landlord in connection with such installation and thereafter the maintenance
and replacement of the film and/or windows and shall permit Landlord to have
access to the tenant’s premises at reasonable times during Business Hours to
perform such work.


 


A.25.                    Each tenant at
its own expense shall cause all portions of its premises used for the storage,
preparation, service or consumption of food or beverages to be cleaned daily in
a manner satisfactory to Landlord, and to be exterminated against infestation
by vermin, rodents or roaches regularly and, in addition, whenever evidence of
any infestation is discovered. No tenant shall permit any person to enter its
premises or the Building for the purpose of providing such extermination
services other than persons first approved by Landlord, such approval not to be
unreasonably withheld.


 


A.26.                    No tenant,
subtenant or licensee, or any contractor, employee, agent or invitee of any
tenant, subtenant or licensee shall at any time bring into or keep upon any
premises or the Building any inflammable, combustible, explosive, hazardous,
toxic or otherwise dangerous fluid, chemical or substance other than customary
office cleaning products.


 


A.27.                    No tenant
shall mark, paint, drill into, or in any way deface, any part of its premises
or the Building. No boring, cutting or stringing of wires or instruments shall
be permitted except with the prior consent of, and as directed by, Landlord. No
telephone, cable or other wires shall be installed by any tenant except in a
manner reasonably approved by Landlord. No tenant shall lay linoleum, or other
similar


 


9





















 


floor covering so that the same
shall come in direct contact with the floor of its premises, and, if linoleum
or other similar floor covering is desired to be used, 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 expresslyprohibited.


 


A.28.                    No bicycles,
vehicles, animals (except seeing eye dogs), fish or birds of any kind shall be
brought into or kept in or about the premises of any tenant.


 


A.29.                    All paneling,
doors, trim 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, and such materials shall be installed in a manner
approved by Landlord.


 


A.30.                    Whenever any
tenant submits to Landlord any plan, agreement or other document for the
consent or approval of Landlord, such tenant shall pay to Landlord, on demand,
a processing fee in the amount of the reasonable fees for the review thereof,
including the services of any architect, engineer or attorney employed by Landlord to review such plan,
agreement or documents.


 


A.31.                    Landlord
reserves the right to rescind, alter, waive or add any rule or regulation at
any time when, in Landlord’s judgment, Landlord deems it necessary, desirable
or proper for the best interest of the Building or for the best interest of the
tenants generally. No alteration, rescission, waiver or addition of any rule or
regulation in favor of one tenant shall operate as an alteration, rescission,
waiver or addition in favor of any other tenant. Landlord shall not be
responsible to any tenant for the nonobservance or violation by any other
tenant of any of the Rules and Regulations.


 


10





















 


EXHIBIT E


 


CURRENT OVERTIME CHARGES


 


	
  Overtime Air Conditioning

  	
  $110.00 per hour per floor

  
	
  Overtime Heating

  	
  $45.00 per hour per floor

  
	
   

  	
   

  
	
  Engineer:

  	
  Straight Time

  	
  $49.24 per hour

  
	
   

  	
  Overtime

  	
  $62.40 per hour

  
	
   

  	
   

  
	
  *Porter:

  	
  Straight Time

  	
  $26.90 per hour (one hour minimum)

  
	
   

  	
  Overtime

  	
  $34.93 per hour

  
	
   

  	
   

  
	
  *Security Guard:

  	
   

  
	
   

  	
  Straight Time

  	
  $26.90 per hour (one hour minimum)

  
	
   

  	
  Overtime

  	
  $34.93 per hour

  
	
   

  	
   

  
	
  *Service Elevator Overtime

  	
  $99.43 per hour (includes elevator operator and security)

  
	
   

  	
   

  
	
  Keys

  	
  $3.00 each

  



 










* There is a 4-hour minimum charge for Saturdays, Sundays and Holidays.


 


Charges are subject to change from time to time in a manner generally
reflective of changes in Landlord’s costs in providing the services in
question.


 





















 


EXHIBIT F


 


CLEANING SPECIFICATIONS


 


75 ROCKEFELLER PLAZA

BUILDING STANDARD CLEANING

OFFICE AREAS


 


A.                                   Nightly


 


1.                           All
stone, ceramic, tile, marble, terrazzo and other unwaxed flooring to be swept
damp and/or mopped nightly, using approved dust-down preparations; wash
flooring weekly, scrub when necessary.


 


2.                           All
linoleum, vinyl, rubber, asphalt tile and other similar types of flooring (that
may be waxed) to be swept damp and/or mopped nightly using approved dust-down
preparation. Mop up and wash floors for spills, smears as required.


 


3.                           All
carpeting and rugs shall be vacuum cleaned once a week, moving light furniture
other than desks, file cabinets, etc.


 


4.                           Hand
dust with treated cloth and wipe clean all furniture, fixtures and custom
wooden window enclosures, nightly.


 


5.                           Empty and clean as needed
all waste receptacles nightly and remove from the demised premises wastepaper
and/or other debris to an area designated by the Landlord. Install liners in
all waste receptacles supplied by Tenant. Supply liners for recycling as
required at no charge.


 


6.                           Empty and clean all waste
disposal cans and baskets weekly; damp-dust as necessary.


 


8.                           Wash clean all water
fountains and coolers nightly.


 


9.                           Dust all floor and other
ventilating louvers within reach weekly; damp wipe as necessary.


 


10.                     Dust all telephones weekly.


 


11.                     Keep locker and slop sink rooms in
a clean, neat and orderly condition at all times.


 


12.                     Wipe clean and polish all brass
and other bright work nightly.


 


13.                     Sweep and/or vacuum all private
staircases nightly.


 


14.                     Metal doors of all elevator cars
to be properly maintained.


 





















 


15.                     Remove all gum and foreign matter
on sight.


 


16.                     Clean all glass furniture tops
nightly.


 


17.                     Collect and remove wastepaper,
cardboard boxes (which CONTRACTOR will flatten) and waste materials to a
designated area within the building.


 


18.                     Dust and wash closet and coat room
shelving, coat racks and flooring weekly.


 


B.                                     Periodic
Cleaning


 


(To be performed as needed unless otherwise
specified but not less than once each month or as hereinafter provided).


 


1.                                       Wash and remove
all finger marks, ink stains, smudges, scruff marks and other marks from metal
partitions, sills, all vertical surfaces (doors, walls, window sills) including
elevator doors and other surfaces as necessary.


 


2.                                       Dust and clean
electric fixtures, all baseboards and other fixtures or fittings as necessary, but not less than once each month.


 


C.                                     High Dusting


 


1.                                       Do all high
dusting every three (3) months, unless otherwise specified, including, but not
limited to, the following:


 


a.                                       Vacuum and dust
all pictures, frames, charts, graphs and similar wall hangings not reached in
nightly cleaning. Damp dust as required.


 


b.                                      Vacuum and dust
all vertical surfaces such as walls, partitions, doors, bucks and ventilating
louvers, grills, high moldings and other surfaces not reached in a nightly
cleaning.


 


c.                                       Dust all
overhead pipes, sprinklers, ventilating and air conditioning louvers, ducts,
high moldings and other high areas not reached in nightly cleaning.


 


d.                                      Dust all venetian
blinds. Dust all window frames.


 


e.                                       Dust exterior of
lighting fixtures.


 


f.                                         Wash all
furniture glass as needed.


 


g.                                      Vacuum and dust
ceiling tiles around ventilators and clean air conditioning diffusers as
required.


 


2





















 


PUBLIC LAVATORIES


 


A.                                   Nightly


 


1.                                       Scour, wash and
disinfect all toilet seats (both sides), basins, bowls, urinals and tile walls
near urinals throughout.


 


2.                                       Sweep and wash
all lavatory floors using proper disinfectants.


 


3.                                       Wash and polish
all minors, powder shelves, bright work and enameled surfaces in all lavatories.


 


4.                                       Hand dust and
clean, washing where necessary, all partitions, dispensers and receptacles in
all lavatories and restrooms.


 


5.                                       Service sanitary
napkin dispensers (napkin supplied by Tenant).


 


6.                                       Empty paper
towel and sanitary napkin disposal receptacles and remove paper to designated
areas.


 


7.                                       Fill toilet
tissue holders (tissue supplied by Tenant).


 


8.                                       Fill and
maintain mechanical operation of all toilet tissue holders, soap dispensers,
towel dispensers and sanitary napkin vending dispensers. (Materials supplied by
Tenant.)


 


9.                                       Empty and clean
sanitary disposal receptacles.


 


10.                                 Clean and wash all
receptacles and dispensers.


 


11.                                 Remove fingermarks
from painted surfaces.


 


12.                                 Day personnel to
inspect all toilets and rest rooms during the day and keep them in a neat and
clean condition at all times and replace supplies as necessary.


 


B.                                     Periodic


 


1.                                       Clean and wash
all partitions once every two weeks.


 


2.                                       Scrub floors as
necessary but not less than once each week.


 


3.                                       Hand dust, clean
and wash all tile walls and ceilings, including washable acoustical tile, once
each month, more, if necessary.


 


4.                                       High dusting
shall be done once each month, which will include lights, walls and grills.


 


5.                                       Wash all
lighting fixtures as necessary.


 


3





















 


Elevator Lobbies and Public Corridors (Multi-Tenant Floors)


 


1.                                       Sweep, wash
floor nightly and machine scrub floors as necessary. Wash down all metal
surfaces in the lobby and polish as required, but not less than every two
weeks.


 


2.                                       Wipe down all
metal surfaces in the lobby and polish as required.


 


3.                                       High dust and
wash, if necessary, all electrical and air conditioning ceiling fixtures at
least once per month.


 


4.                                       Dust walls
nightly and wash as required.


 


5.                                       Clean and dust
mail depository in lobby.


 


4





















 


EXHIBIT G


 


[Intentionally Omitted]


 





















 


EXHIBIT H


 


ADDITIONAL FLOORS


 


	
  Floor Number

  	
   

  	
  Rentable Square Feet

  	
   

  	
  Tenant’s Tax Percentage

  	
   

  	
  Wage Rate Multiple

  	
   

  
	
  32

  	
   

  	
  7,024

  	
   

  	
  1.20598

  	
   

  	
  7,024

  	
   

  
	
  33

  	
   

  	
  2,373

  	
   

  	
  .40743

  	
   

  	
  2,373

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  9,397

  	
   

  	
  1.61341

  	
   

  	
  9,397