Exhibit 10.6

 
	
  

 
	

 


 
	
  

 
	
 AGREEMENT OF LEASE

 
	
  

 
	
 between

 
	
  

 
	
 SEB IMMOBILIEN-INVESTMENT GmbH

 
	
  

 
	
 Landlord

 
	
  

 
	
 and

 
	
  

 
	
 COTY INC.

 
	
  

 
	
 Tenant

 
	
  

 
	
 ENTIRE SEVENTEENTH FLOOR

 
	
 AND PORTION OF EIGHTEENTH FLOOR

 
	
 TWO PARK AVENUE

 
	
 NEW YORK, NEW YORK

 
	
  

 
	

 


 









          AGREEMENT OF-
LEASE, made as of the 30th day of December 2005, between SEB
IMMOBILIEN-INVESTMENT, GmbH, a limited liability capital investment company
organized and existing under the laws of Germany, having an office c/o Jones
Lang LaSalle Americas, Inc., Two Park Avenue, New York, NY 10016 (“Landlord”)
and COTY INC., a Delaware corporation, having an office at 1325 Avenue of the
Americas, New York, New York 10019 (“Tenant”).


W I T N E S S E T H:


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


REFERENCE DATA


          This
Article contains the basic lease provisions between Landlord and Tenant.


	
  

 	
  

 	
  

 
	
 Premises:

 	
  

 	
 The entire rentable area of the seventeenth (17th) floor and a
 portion of the rentable area of the eighteenth (18th) floor of the Building,
 consisting of seventy-five -thousand six (75,006) rentable square
 feet, as agreed to by Landlord and Tenant and shown cross-hatched on the floor plans attached hereto and made
 a part hereof as Exhibit “A”.

 
	
  

 	
  

 	
  

 
	
 Building:

 	
  

 	
 The building located at and commonly known as 2 Park Avenue, New
 York, NY 10016; and all of the equipment and other improvements and
 appurtenances belonging or pertaining
 thereto. Landlord and Tenant agree that the Building is conclusively
 deemed to contain nine hundred ninety-two
 thousand nine hundred and thirty-one (992,931) rentable square feet as
 of the date of this Lease, including portions used for retail purposes, and
 nine hundred sixty-four thousand four hundred and fifty-nine (964,459)
 rentable square feet, excluding portions
 used for retail purposes.

 
	
  

 	
  

 	
  

 
	
 Commencement
 Date:

 	
  

 	
 The date that Landlord has substantially completed Landlord’s Pre-Commencement Date Work (as said term
 is defined in Exhibit B to
 this Lease) and delivered to Tenant (i) possession of the Premises, subject
 to the provisions of Section 1.2 and Exhibit
 B hereof, in broom clean condition free of any debris, vacant and free of
 any occupants, with all Building services
 (other than heating, ventilation and air conditioning under Sections 28.2 and 28.3 and cleaning and
 janitorial services under Section 28.4(A)) available, and (ii) a New York
 City Buildings Department Form ACP-5 with respect to the Premises indicating
 that the Premises, are not an asbestos project. Subject to all of the
 applicable terms and conditions of this Lease, Landlord shall exert commercially reasonable efforts to
 cause the

 


1









	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Commencement Date to occur on or about March 15, 2006.

 
	
  

 	
  

 	
  

 
	
 Rent
 Commencement Date:

 	
  

 	
 The date on which occurs the first anniversary of the Commencement
 Date, as the same may be extended in
 accordance with the provisions of this Lease, subject to the
 provisions of Section 1.5 hereof.

 
	
  

 	
  

 	
  

 
	
 Fixed
 Expiration Date:

 	
  

 	
 The last day of the month in which the fifteenth (15th) anniversary of the Rent Commencement Date
 shall occur.

 
	
  

 	
  

 	
  

 
	
 Tenant’s
 Share:

 	
  

 	
 7.777%, as the same may be increased or decreased pursuant to the terms of this Lease.

 
	
  

 	
  

 	
  

 
	
 Tenant’s Tax
 Share:

 	
  

 	
 7.554%, as the same may be increased or decreased pursuant to the
 terms of this Lease.

 
	
  

 	
  

 	
  

 
	
 Fixed Rent:

 	
  

 	
 Tenant shall pay Fixed Rent in accordance with the following Fixed
 Rent Schedule and as further provided in Article 1 of this Lease:

 






	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Period

 	
  

 	
 Fixed Rent per 

 Rentable Square Foot

 	
  

 	
 Monthly Fixed

 Rent

 	
  

 	
 Annual Fixed Rent

 	
  

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 
	
 Rent Commencement Date through the day immediately  preceding
 the fifth  (5th) anniversary of  the Rent
 Commencement Date

 	
  

 	
 $

 	
 37.00

 	
  

 	
 $

 	
 231,268.50

 	
  

 	
 $

 	
 2,775,222.00

 	
  

 
	
  

 
	
 The fifth
 (5th) anniversary of the Rent Commencement
 Date through the day immediately
 preceding the tenth (10th) anniversary of the Rent Commencement
 Date

 	
  

 	
 $

 	
 41.00

 	
  

 	
 $

 	
 256,270.50

 	
  

 	
 $

 	
 3,075,246.00

 	
  

 
	
  

 
	
 The tenth (10th) anniversary of the  Rent
 Commencement Date through the  Fixed Expiration Date  of this
 Lease.

 	
  

 	
 $

 	
 45.00

 	
  

 	
 $

 	
 281,272.50

 	
  

 	
 $

 	
 3,375,270.00

 	
  

 


2









	
  

 	
  

 	
  

 	
  

 
	
 Escalation
 Rent:

 	
  

 	
 Commencing on the Rent Commencement Date, Tenant shall pay Tenant’s Tax Share of Taxes for each
 Tax Year in excess of Taxes for the New York City fiscal tax year commencing
 on July 1, 2006 and ending on June
 30, 2007 (the “Base Tax  Year”),
 as further described in Article 27 of this Lease.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Commencing on the Rent Commencement Date, Tenant shall pay Tenant’s Share of Operating Expenses
 for each Operating Year in excess of Operating Expenses for the calendar year
 commencing on January 1, 2006 and ending on December 31, 2006 (the “Base
 Operating Year”), as further described in Article 27 of this Lease.

 
	
  

 	
  

 	
  

 	
  

 
	
 Permitted
 Use:

 	
  

 	
 General, administrative and executive offices and uses incidental
 thereto, subject to the provisions of Article 2 of this Lease.

 
	
  

 	
  

 	
  

 	
  

 
	
 Letter of
 Credit Amount:

 	
  

 	
 $693,805.50

 
	
  

 	
  

 	
  

 	
  

 
	
 Broker(s):

 	
  

 	
 Trammell Crow Services, Inc. and Jones Lang LaSalle Americas, Inc.

 
	
  

 	
  

 	
  

 	
  

 
	
 Guarantor(s):

 	
  

 	
 None.

 
	
  

 	
  

 	
  

 	
  

 
	
 Exhibits and
 Schedules:

 	
  

 	
 This Lease includes, and incorporates by this reference the following
 Exhibits and Schedules:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Exhibit A

 	
 Floor Plans

 
	
  

 	
  

 	
 Exhibit B

 	
 Landlord’s Work

 
	
  

 	
  

 	
 Exhibit C

 	
 List of Contractors Approved by Landlord

 
	
  

 	
  

 	
 Exhibit D

 	
 Form of SNDA

 
	
  

 	
  

 	
 Exhibit E

 	
 Certificate of Occupancy

 
	
  

 	
  

 	
 Exhibit F

 	
 Intentionally Omitted

 
	
  

 	
  

 	
 Exhibit G

 	
 VAC Unit Performance Specifications

 
	
  

 	
  

 	
 Exhibit H

 	
 Form of Letter of Credit

 
	
  

 	
  

 	
 Exhibit I

 	
 Confirmation of Registered Office in Germany

 
	
  

 	
  

 	
 Exhibit J

 	
 First Offer Space

 
	
  

 	
  

 	
 Exhibit K

 	
 First Offer Space Superior Rights

 
	
  

 	
  

 	
 Exhibit L

 	
 First Offer Storage Space

 
	
  

 	
  

 	
 Exhibit M

 	
 Form of Commencement Date Agreement

 
	
  

 	
  

 	
 Exhibit N

 	
 Eighteenth Floor Demising Plan

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Schedule A - Rules and Regulations

 
	
  

 	
  

 	
 Schedule B - Cleaning Specifications

 


3









	
  

 	
  

 	
  

 
	
 Landlord’s
 Notice Address (subject to Article 26):

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 SEB
 Immobilien-Investment GmbH

 
	
  

 	
  

 	
 c/o LaSalle
 Investment Management

 
	
  

 	
  

 	
 153 East
 53rd Street

 
	
  

 	
  

 	
 New York, NY
 10022

 
	
  

 	
  

 	
 Attention:
 Mr. Brian Tague

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 With a copy
 to:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Jones Lang
 LaSalle Americas, Inc.

 
	
  

 	
  

 	
 Two Park
 Avenue

 
	
  

 	
  

 	
 15th Floor

 
	
  

 	
  

 	
 New York, NY
 10016

 
	
  

 	
  

 	
 Attention:
 Building Manager

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 And a copy
 to:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Mario J.
 Suarez, Esq.

 
	
  

 	
  

 	
 Thompson
 Hine LLP

 
	
  

 	
  

 	
 One Chase
 Manhattan Plaza

 
	
  

 	
  

 	
 58th Floor

 
	
  

 	
  

 	
 New York,
 New York 10005-1401

 
	
  

 	
  

 	
  

 
	
 Tenant’s Notice
 Address (subject to Article 26):

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Prior to the
 date that Tenant occupies the Premises for the regular conduct of its
 business:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Coty Inc.

 
	
  

 	
  

 	
 1325 Avenue
 of the Americas

 
	
  

 	
  

 	
 New York, NY
 10019

 
	
  

 	
  

 	
 Attention:
 General Counsel

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 After the date
 that Tenant occupies the Premises for the regular conduct of its business:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Coty Inc.

 
	
  

 	
  

 	
 2 Park
 Avenue

 
	
  

 	
  

 	
 New York,
 New York 10016

 
	
  

 	
  

 	
 Attention:
 General Counsel

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 With a copy
 to:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Brown
 Raysman Millstein Felder & Steiner LLP

 
	
  

 	
  

 	
 900 Third
 Avenue

 
	
  

 	
  

 	
 New York,
 New York 10022

 


4









	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Attention: Raymond A. Sanseverino, Esq.

 
	
  

 	
  

 	
  

 
	
 Rent
 Payments:

 	
  

 	
 Rental shall be paid to Landlord in lawful money of the United States
 at Landlord’s election either: (i) by good and sufficient check drawn to Landlord’s
 order on a bank or trust company
 which is a member of the New York Clearinghouse Association, or a successor thereto, having an office
 in the Borough of Manhattan, the City of New York, State of New York, and
 delivered to the following address (or at such other place as Landlord may
 designate from time to time):

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 SEB Immobilien-Investment GmbH - Park Avenue
P.O. Box 1041

 
	
  

 	
  

 	
 New York, NY 10268-1041

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 or (ii) by wire transfer of immediately available federal funds to
 Landlord or its designee to the following account or any other account as
 Landlord may designate by advance notice to Tenant:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Dresdner Bank AG

 
	
  

 	
  

 	
 New York, New York

 
	
  

 	
  

 	
 ABA Routing No.: 026008303

 
	
  

 	
  

 	
 Account Title: SEB Immobilien-Investment GmbH - Park Avenue

 
	
  

 	
  

 	
 Account No.: 203592 04

 
	
  

 	
  

 	
  

 
	
 Electricity:

 	
  

 	
 Submetered, subject to the provisions of Article 13.

 


The foregoing provisions shall be interpreted and applied in accordance
with the other provisions of this Lease. The terms of this Article, and the
terms defined in Article 37 and other Articles, shall have the meanings
specified therefor when used as capitalized terms in other provisions of this
Lease or related documentation (except as expressly provided to the contrary
therein).


ARTICLE 1


DEMISE, PREMISES, TERM, RENT


          Section 1.1
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord the
Premises for a term (the “Term”) to commence on the Commencement Date
and to end on the Fixed Expiration Date. Landlord shall reasonably determine
the date on which the Commencement Date shall have occurred and shall notify
Tenant of the date so determined. If Tenant disagrees with Landlord’s
determination of the Commencement Date, Tenant may object to such determination
within thirty (30) days after Landlord’s delivery of its written determination
of such date to Tenant and thereafter either party may submit such matter to
arbitration pursuant to the provisions of Section 38.7 of this Lease; provided,
however, that


5





Tenant shall pay all Fixed Rent and Additional Rent, and perform all
other obligations consistent with Landlord’s determination of the Commencement
Date, subject to refund or credit, together with interest at the Applicable
Rate on the amount so refunded or credited (such interest to computed from the
date such amount to be credited or refunded was paid by Tenant to Landlord).
Landlord shall credit or refund any such amount within thirty (30) days of the
date that such matter is resolved by arbitration or by mutual agreement.


          Section 1.2
In determining whether or not the Commencement Date occurred on the date
determined by Landlord, the following shall apply: (i) Landlord’s
Pre-Commencement Date Work shall be deemed to have been substantially completed
notwithstanding the fact that there may be unperformed obligations in respect
of Landlord’s Pre-Commencement Date Work as of such Commencement Date, so long
as such unperformed obligations do not actually interfere with the performance
of Tenant’s Initial Alterations beyond a de minimis amount; and (ii) if
Landlord’s Pre-Commencement Date Work shall be deemed to have been
substantially completed with respect to a portion of the Premises comprising an
entire rental unit (which shall mean, for purposes of this Section 1.1 and the
first sentence of Section 28.4, all of the seventeenth (17th) floor of the
Building, or all of the portion of the eighteenth (18th) floor included in the
Premises, or any First Offer Space to be included in the Premises) which is
less than the entire Premises then, notwithstanding the fact that Landlord’s
Pre-Commencement Date Work shall not have been performed with respect to the
balance of the Premises, and so long as Tenant shall be capable of commencing
the performance of Tenant’s Initial Alterations in such rental unit, the
Commencement Date shall nonetheless be deemed to have occurred with respect to
the entire Premises; provided that Tenant shall not be responsible under this
Lease for anything that occurs in, or be required to maintain any insurance
with respect to, or take care of, or observe any Requirements in respect of,
the balance of the Premises until Landlord’s Pre-Commencement Date Work shall
have been completed in the balance of the Premises and, in such case, Tenant
shall be entitled to a credit against Fixed Rent equal to the product of a
fraction (x) the numerator of which is the product of $37.00 multiplied by
number of rentable square feet in the rentable unit in respect of which
Landlord’s Pre-Commencement Date Work has not been substantially completed
(which rentable square feet shall be deemed to be, for purposes of this Section
1.2, 45,788 rentable square feet with respect to the seventeenth (17th) floor
of the Building, and 29,218 rentable square feet with respect to the portion of
the eighteenth (18th) floor included in the Premises) and (y) the denominator
of which is 365, for each day that Landlord’s Pre-Commencement Date Work shall
not have been substantially completed with respect to such remaining portion of
the Premises.


          Section 1.3
Upon the determination of the Commencement Date and the Rent Commencement Date,
as aforesaid, the parties shall within ten (10) days thereafter, at either
party’s request, execute a written agreement confirming such dates, which
agreement shall be in the form annexed hereto as Exhibit M. Any failure
of the parties to execute such written agreement shall not affect the validity
of the Commencement Date, the Rent Commencement Date or, if Tenant exercises
its option pursuant to Section 1.5 hereof, the date on which the Rent Abatement
Period, as extended pursuant to Section 1.5, shall end, in each case, as
reasonably determined by Landlord or the arbitrators, as applicable.


6






          Section 1.4
Commencing upon the Rent Commencement Date, Tenant shall pay to Landlord, in
lawful money of the United States of America, without notice or demand, in
lawful money of the United States, by good and sufficient check drawn to
Landlord’s order on a bank or trust company which is a member of the New York
Clearinghouse Association, or a successor thereto, having an office in the
Borough of Manhattan, the City of New York, State of New York, at the office of
Landlord, or at such other place as Landlord may designate from time to time;
or, at Landlord’s election, by wire transfer of immediately available federal
funds to Landlord or its designee to the account identified in the Reference
Data initially set forth in this Lease, or to any other account as Landlord may
designate by advance notice to Tenant, the following:


                    (A)
fixed rent (“Fixed Rent”), at the annual fixed rental rate set
forth in the Reference Data initially set forth in this Lease, which Fixed Rent
shall be payable in equal monthly installments, in advance on the first day of
each and every calendar month during the Term, except that the first monthly
installment of Fixed Rent shall be payable by Tenant upon execution of this
Lease; and


                    (B)
additional rent (“Additional Rent”) consisting of all other sums
of money (including, without limitation, Escalation Rent) as shall become due
from and be payable by Tenant under this Lease (for default in the payment of
which Landlord shall have the same remedies as for a default in the payment of
Fixed Rent).


          Section 1.5
Tenant shall not be required to pay that portion of the Fixed Rent as shall be
equal to the corresponding Fixed Rent for the period (the “Fixed Rent
Abatement Period”)commencing on the Commencement Date and ending on
the day immediately preceding the Rent Commencement Date, as such Rent
Abatement Period may be extended pursuant to the provisions next following.
Provided an Event of Default shall not have occurred and then be continuing,
Tenant shall have the option, at Tenant’s election, to extend the Fixed Rent
Abatement Period for an additional period of one hundred eighty (180) days,
provided Tenant gives Landlord written notice of such election on or before the
date which is the earlier to occur of (i) the thirtieth (30th) day prior to the
first anniversary of the Commencement Date or (ii) the date that Tenant shall
have applied for the disbursement of more than $3,750,000.00 from the Tenant
Fund (said date is herein referred to as the “Rent Abatement Extension
Deadline”). In the event Tenant fails to exercise such option on or before
the Rent Abatement Extension Deadline, then the option set forth in this
Section 1.5 shall be null and void and deleted from this Lease. In the event
Tenant exercises such option on or before the Rent Abatement Extension Deadline,
then (i) the Rent Abatement Period shall be extended to the date which is one
hundred eighty (180) days following the originally scheduled Rent Commencement
Date, (ii) any reference in this Lease to the “Rent Commencement Date”
shall refer to the Rent Commencement Date, as extended by the option set forth
herein, and (iii) notwithstanding the provisions of Section 3.2 hereof, the
Tenant Fund set forth in Section 3.2 of this Lease shall be automatically
reduced from $5,137,911.00 to $3,750,000.00, effective as of the date Tenant
exercises the option set forth in this Section 1.5 to extend the Rent Abatement
Period.


          Section 1.6
(A) In addition to Tenant’s election to extend the Fixed Rent Abatement Period
in accordance with Section 1.5 of this Lease, if the Commencement Date shall
not have occurred by March 15, 2006 for any reason other than (i) a delay in
the occurrence of


7





the Commencement Date resulting from the performance by Landlord of any
ACM Abatement Work (as said term is defined in Section 6.1 of this Lease),
which may not exceed fifteen (15) days in the aggregate, (ii) a Tenant Delay
(as said term is defined in Exhibit B to this Lease), or (iii) one or
more Unavoidable Delays (as said term is defined in Article 25 of this Lease)
which may not exceed fifteen (15) days in the aggregate, the Fixed Rent
Abatement Period shall be extended for one (1) and one-half (1/2) additional
days for each day after March 15, 2006 until the day immediately preceding the
date that the Commencement Date actually occurs. In the event the Fixed Rent
Abatement Period is extended as aforesaid, any reference in this Lease to the “Rent
Commencement Date” shall refer to the Rent Commencement Date, as extended
by the provisions of this Section 1.6 (and, if and to the extent applicable,
Section 1.5 of this Lease). Nothing contained in this Section 1.6(A) shall
reduce the amount of the Tenant Fund.


                    (B)
If the Commencement Date shall not have occurred by July 15, 2006, subject to
delay caused by Tenant Delay, Tenant shall have the right to terminate this
Lease on fifteen (15) days’ advance written notice to Landlord. If Tenant shall
elect to terminate the Lease, as aforesaid, the Lease shall terminate on the
fifteenth (15th) day after the giving of such Cancellation Notice unless the
Commencement Date shall have theretofore occurred and, on or before such date,
Tenant shall surrender all of its right title and interest in the Premises, and
Landlord shall return the Letter of Credit and the first monthly installment of
Fixed Rent paid on execution of this Lease to Tenant and, thereupon, neither
party shall have any further liability or obligation to the other except for
any such obligation or liability which survives such termination pursuant to
the provisions of this Lease and except as in this Section specifically
provided. Additionally, in the event of any termination of this Lease pursuant
to the provisions of this Section 1.6(B), Landlord shall, within twenty (20)
Business Days after receipt of Tenant’s Cancellation Notice and submission to
Landlord of evidence reasonably satisfactory to Landlord of the amount of the
Reimbursement Costs (as herein defined), reimburse Tenant for the Reimbursement
Costs up to the aggregate sum of $250,000.00. As used in this Section 1.6(B),
the term. “Reimbursement Costs” shall mean the actual
expenses incurred by Tenant or Tenant’s Affiliates subsequent to the date of
this Lease and prior to the giving of the Cancellation Notice for the following
expenses: architectural, design, engineering and other consulting fees,
disbursements and charges with respect to Tenant’s Initial Alterations. Any
dispute with respect to whether Tenant properly exercised its right to
terminate this Lease under and pursuant to this Section 1.7 may be submitted by
either Landlord or Tenant to arbitration in accordance with Section 38.7 of
this Lease.


          Section
1.7 If the Rent Commencement Date is other than the first day of a calendar
month, Fixed Rent for such month shall be prorated on a per diem basis. Tenant
shall pay the Fixed Rent and Additional Rent when due without abatement,
deduction, counterclaim, setoff or defense for any reason whatsoever, except
said abatement or setoff as may be occasioned by the occurrence of any event permitting
an abatement or setoff of Fixed Rent and/or Additional Rent as specifically set
forth in this Lease.


8





ARTICLE 2


USE AND OCCUPANCY


          Section
2.1 (A) Tenant shall use and occupy the Premises as general, administrative
and executive offices, uses incidental thereto and for no other purpose;
provided that if Tenant shall exercise its option to lease the First Offer
Storage Space, Tenant shall use such First Offer Storage Space as storage space
only. Ancillary uses to the general business office usage include, but are not
limited to, the operation of messenger and mailroom facilities, reproduction
and copying facilities, word processing centers, computer and communications
facilities, pantries (but not kitchens) including vending machines, file rooms
(including condensed file rooms with reinforced flooring if required subject,
however, to the provisions of Article 3 of this Lease), meeting and conference
centers and rooms, storage space, and executive dining rooms for Tenant’s
executives and their guests.


                    (B)
Tenant and its permitted occupants also shall have (i) the non-exclusive right
to use any public portions and commonly-shared facilities of the Building, such
as any Building lobbies, (ii) the non-exclusive right to access electrical and
service closets and shaft and conduit space enclosing components of Building
Systems and located within the Premises, subject to the provisions of the next
sentence, (iii) the right to access and to use space in the Equipment Room for certain
Tenant mechanical equipment, as and only to the extent expressly specified in
this Lease, and (iv) the right to tie-in to or connect to any electrical panels
or communication panels serving the Premises and located outside of the
Premises subject, in each case, to the Rules and Regulations and any additional
requirements reasonably imposed by Landlord.


          Section 2.2
Tenant shall not use the Premises or any part thereof, or permit the Premises
or any part thereof to be used, (1) for the business of photographic, multilith
or multigraph reproductions or offset printing, except in connection with,
either directly or indirectly, Tenant’s own business and/or activities, (2) for
retail banking, a trust company, depository, guarantee or safe deposit business,
(3) as a savings bank, a savings and loan association, or as a loan company,
(4) for the sale of travelers checks, money orders, drafts, foreign exchange or
letters of credit or for the receipt of money for transmission, (5) as a
stockbroker’s or dealer’s office or for the underwriting or sale of securities
(6) by the United States government, the City or State of New York, any foreign
government, the United Nations or any agency or department of any of the
foregoing or any other Person having sovereign or diplomatic immunity, (7) as a
restaurant or bar or for the sale of confectionery, soda or other beverages,
sandwiches, ice cream or baked goods or for the preparation, dispensing or
consumption of food or beverages to any manner whatsoever, except for
consumption by Tenant’s officers, employees and business guests, (8) as an
employment agency, executive search firm or similar enterprise, labor union,
school, or vocational training center (except for the training of employees of
Tenant), or (9) as a barber shop or beauty salon.


          Section 2.3
Landlord agrees to provide access to the Premises to Tenant 24 hours a day, 7
days a week, subject to emergencies, shutdowns required in connection with
Building maintenance or the supply of utilities to the Building and Landlord’s
reasonable security procedures (“Building Security Procedures”)
then in effect at the Building. Tenant shall observe,


9





and shall require all of its employees, agents, contractors and vendors
to observe, Landlord’s Building Security Procedures. If the Building Security
Procedures enacted by Landlord shall require the use of photographic
identification cards, electronic card-key access cards or any similar or
dissimilar forms of security (“Card Keys”), Landlord shall initially furnish
to Tenant, at no cost to Tenant, not less than four hundred (400) Card Keys.
Thereafter, throughout the Term of this Lease, Tenant shall be permitted to
purchase additional Card Keys from Landlord at the cost then charged by
Landlord to tenants of the Building for additional or replacement Card Keys.
Tenant shall, on or before the Expiration Date, return to Landlord all such
Card Keys furnished to Tenant.


          Section
2.4 Landlord represents to Tenant that, as of the date of this Lease, the
lobby is attended by an employee (the “Lobby Attendant”) of Landlord,
Landlord’s Managing Agent or of a contractor retained by Landlord, 24 hours per
day, 365 days a year. Landlord may alter, modify, reduce or increase Landlord’s
Building Security Procedures in Landlord’s reasonable discretion provided that
any altered, modified, reduced or increased Building Security procedures
instituted by Landlord shall not result in the elimination of the Lobby
Attendant. Further, the Building Security Procedures shall not be reduced below
a level that would be inconsistent with Building Security Procedures then
observed by Comparable Buildings.


ARTICLE 3


ALTERATIONS


          Section 3.1
(A) Except as otherwise provided herein, Tenant shall not make any Alterations
without Landlord’s prior consent. Landlord shall not unreasonably withhold,
condition or delay its consent to any proposed nonstructural Alterations,
provided that such Alterations (i) are not visible from the outside of the
Building, (ii) require any alterations, installations, improvements, additions
or other physical changes to be performed in or made to any portion of the
Building or the Real Property other than the Premises, (iii) do not adversely
affect any service required to be furnished by Landlord to Tenant or to any
other tenant or occupant of the Building, (iv) do not adversely affect the
proper functioning of any Building System, (v) do not reduce the value or
utility of the Building, and (vi) do not require a change in the certificate of
occupancy for the Building or the Premises. Notwithstanding the foregoing, but
subject to the provisions of the sentence next following, Landlord’s consent
shall not be required for any Alteration (each a “Permitted Alteration”)
that (A) is of a decorative nature, such as painting, installation of movable
partitions, floor covering and wall covering (“Decorations”), or
(B)(i) is limited to the interior of the Premises (and not visible from the
outside of the Property at street level); (ii) does not adversely affect the proper
functioning outside of the Premises of any Building Systems; and (iii) does not
affect the structural integrity of the Building or require an amendment to the
certificate of occupancy for the Building, and (iii) in each of the instances
described in clauses (ii) and (iii) of this sentence, does not cost more than
One Hundred Fifty Thousand Dollars ($150,000) in the aggregate in any one (1)
calendar year. Tenant shall provide to Landlord not less than five (5) Business
Days advance notice of any Permitted Alteration it proposes to perform, and if
such Permitted Alteration consists of any Permitted Alteration other than
Decorations, Tenant shall provide Landlord with the documentation specified in
Section 3.1(B)(2)(i), (ii) and (iii).


10





          (B) (1)
Tenant shall submit all plans and specifications for which Landlord’s consent
is required in connection with Tenant’s request for Landlord’s approval of any
Alterations, other than Permitted Alterations, Tenant requests to make to the
Premises and Landlord agrees to notify Tenant of its approval or disapproval
within twenty-five (25) days after Tenant’s plans for the Alterations shall
have been given to Landlord. In the event that Landlord fails to notify Tenant
of its approval or disapproval within twenty-five (25) days after Tenant’s
plans shall have been given to Landlord, Tenant may deliver a notice (“Approval
Request Notice”) to Landlord, (which Approval Request Notice shall specify
in bold and capitalized lettering that if Landlord fails to respond to the
Approval Request Notice within three (3) Business Days after same shall have
been given to Landlord, then consent shall be deemed given) and if Landlord
fails to notify Tenant of its approval or disapproval (in the manner provided
below) within three (3) Business Days after the Approval Request Notice shall
have been delivered to Landlord, Tenant’s plans for the Alterations which shall
be the subject of such Approval Request Notice shall be deemed approved. With
respect to any revisions of any plans and specifications for the Alterations,
Landlord shall have (x) five (5) days after receipt of such plans if such
revisions shall be minor in scope and (y) seven (7) days after receipt of such
plans to if such revisions are substantial in scope, to approve or disapprove
the same. In the event that Landlord fails to notify Tenant of its approval or
disapproval within five (5) days or seven (7) days, as applicable, after such
revised plans and specifications shall have been given to Landlord, Tenant may
deliver a notice (“Revision Approval Request Notice”) to
Landlord, (which Revision Approval Request Notice shall specify in bold and
capitalized lettering that if Landlord fails to respond to the Revision
Approval Request Notice within three (3) Business Days after same shall have
been given to Landlord, then consent shall be deemed given) and if Landlord
fails to notify Tenant of its approval or disapproval (in the manner provided
below) within three (3) Business Days after the Revision Approval Request Notice
shall have been delivered to Landlord, Tenant’s plans and specifications for
the Alterations which shall be the subject of such Revision Approval Request
Notice shall be deemed approved.


                              (2)
Prior to making any Alterations, including, without limitation, the Initial
Alterations, but excluding Decorations, Tenant shall (i) submit to Landlord
detailed plans and specifications (including layout, architectural, mechanical
and structural drawings) for each such proposed Alteration and shall not
commence any such Alteration without first obtaining Landlord’s approval of
such plans and specifications, which, in the case of nonstructural Alterations
which meet the criteria set forth in Section 3.1(A) above, approval shall not
be unreasonably withheld, conditioned or delayed, (ii) at Tenant’s expense,
obtain all permits, approvals and certificates required by any Governmental
Authorities, it being agreed that all filings with Governmental Authorities to
obtain such permits, approvals and certificates shall be made, at Tenant’s
expense, by a Person designated by Landlord, and (iii) furnish to Landlord
duplicate certificates of worker’s compensation (covering all persons to be
employed by Tenant, and Tenant’s contractors and subcontractors in connection
with such Alteration) and comprehensive public liability (including property
damage coverage) insurance in such form, with such companies, for such periods
and in such amounts as Landlord may reasonably approve, naming Landlord and its
agents, any Lessor and any Mortgagee, as additional insureds. Upon completion
of such Alteration, Tenant, at Tenant’s expense, shall obtain certificates of
final approval of such Alteration required by any Governmental Authority and
shall furnish Landlord with copies thereof, together with the “as-built” plans
and specifications for such


11





Alterations, it being agreed that all filings with Governmental
Authorities to obtain such permits, approvals and certificates shall be made,
at Tenant’s expense, by a Person designated by Landlord. All Alterations, other
than Permitted Alterations, shall be made and performed substantially in
accordance with the plans and specifications therefor as approved by Landlord,
all Requirements the Rules and Regulations, and all rules and regulations
relating to Alterations promulgated by Landlord in its reasonable judgment, a
copy of which is annexed hereto Schedule A. All materials and equipment to be
incorporated in the Premises as a result of any Alterations or a part thereof shall
be first quality and no such materials or equipment (other than Tenant’s
Property) shall be subject to any lien, encumbrance, chattel mortgage or title
retention or security agreement. In addition, no Alteration (other than the
Initial Alterations and any Decorations), the completed value of which, as
estimated by an architect or construction manager retained by Tenant, shall
exceed $5,000,000.00 (or, if Tenant shall lease additional premises in the
Building, such $5,000,000.00 amount shall be increased to an amount equal to
the aggregate of all rentable square feet then leased by Tenant multiplied by
$65.00) shall be undertaken prior to Tenant’s delivering to Landlord either (i)
a performance bond and labor and materials payment bond (issued by a surety
company and in form reasonably satisfactory to Landlord), each in an amount
equal to 100% of the cost of such Alteration (as reasonably estimated by
Landlord’s architect, engineer, or contractor), or (ii) such other security as
shall be reasonably satisfactory to Landlord or required by any Mortgagee or
Lessor. If, as a result of any Alterations performed by Tenant, including,
without limitation, the Initial Alterations, any alterations, installations,
improvements, additions or other physical changes are required to be performed
or made to any portion of the Building or the Real Property other than the
Premises in order to comply with any Requirement(s), which alterations,
installations, improvements, additions or other physical changes would not
otherwise have had to be performed or made pursuant to applicable
Requirement(s) at such time, Landlord, at Tenant’s sole cost and expense, may
perform or make such alterations, installations, improvements, additions or
other physical changes and take such actions as Landlord shall deem reasonably
necessary. All Alterations (other than any Decorations), shall be performed
only under the supervision of an independent licensed architect approved by
Landlord, which approval shall not be unreasonably withheld, conditioned or
delayed. Landlord hereby approves the following architects and engineers in
accordance with the performance of the Initial Alterations: Ted Moudis
Associates and CFS Engineering, PC.


                              (3)
Landlord reserves the right to reasonably disapprove any plans and
specifications in part, to reasonably reserve approval of items shown thereon
pending its review and approval-of other plans and specifications,
and to reasonably condition its approval upon Tenant making revisions to the plans
and specifications or supplying additional information. Any review or approval
by Landlord of any plans and/or specifications or any preparation or design of
any plans by Landlord’s architect or engineer (or any architect or engineer
designated by Landlord) with respect to any Alteration is solely for Landlord’s
benefit, and without any representation or warranty whatsoever to Tenant or any
other Person with respect to the compliance thereof with any Requirements, the
adequacy, correctness or efficiency thereof or otherwise.


                    (C)
Alterations shall be performed at such times and in such manner as Landlord may
from time to time reasonably designate. Without limiting any other provision of


12





this Article, Tenant shall not install or cause to be installed any
cabling or wiring (collectively, “Cabling”) without the prior written
consent of Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed; and any installation of Cabling by Tenant shall meet
the requirements of the National Electrical Code (as the same may be amended
from time to time), and shall comply with all applicable Requirements. Except
as otherwise provided in this Lease, all Alterations, equipment, machinery and
fixtures installed or affixed to the Premises on and as of the Commencement
Date are and shall continue to be Landlord’s property and shall remain upon the
Premises (and be surrendered by Tenant) at the end of the Term. Except as
hereinafter provided, all Alterations in and to the Premises which may be made
by Tenant at its own cost and expense prior to and during the Term and which
are of a permanent nature shall, subject to the provisions of the next
following sentences, remain upon the Premises (and be surrendered by Tenant) at
the end of the Term. At the time Tenant requests Landlord’s consent for any
Specialty Alteration (as said term is hereinafter defined) Landlord shall
notify Tenant in writing whether Tenant, at the expiration or early termination
of this Lease, shall be required to remove such Specialty Alteration and
restore any damage to that portion of the Premises from which the Specialty
Alteration was removed. Upon the Expiration Date, Tenant shall remove Tenant’s
Property from the Premises and, at Landlord’s option and upon written notice to
Tenant given at least ninety (90) days prior to the Expiration Date, Tenant
also shall remove, at Tenant’s cost and expense, all Specialty Alterations made
by Tenant to the Premises which Landlord notified Tenant, at the time Tenant
requested Landlord’s approval for such Specialty Alterations, that Tenant would
be required to remove the same at the end of the Term; provided, however, in
any case, that Tenant shall repair and restore in a good and workerlike manner
any damage to the Premises or the Building caused by such removal. Without
limiting any other provision of this Lease, Landlord hereby notifies Tenant
that any staircase interconnecting any two or more floors of the Premises shall
be required to be removed by Tenant on or before the Expiration Date of this
Lease. Any Cabling removed by Tenant shall be disposed of by Tenant, at
Tenant’s sole cost and expense, in accordance with all applicable Requirements,
but Tenant shall have no obligation to remove any Cabling on the expiration or
termination of this Lease.


                    (D)
(1) All Alterations shall be performed, at Tenant’s sole cost and expense
(except as otherwise provided in this Lease) by contractors, subcontractors or
mechanics approved by Landlord. Prior to making an Alteration, at Tenant’s
request, Landlord shall furnish Tenant with a list of contractors who may
perform Alterations to the Premises on behalf of Tenant. Annexed hereto as
Exhibit C is a list of contractors approved by Landlord to perform work in the
Building in the trades set forth opposite their respective names. If Tenant
engages any contractor set forth on such list, Tenant shall not be required to
obtain Landlord’s consent for such contractor unless, prior to the earlier of
(a) entering into a contract with such contractor, and (b) thirty (30) days
prior to the commencement of work by such contractor, Landlord shall notify
Tenant that such contractor has been removed from the list.


                              (2)
Notwithstanding the foregoing, with respect to any Alteration affecting any
Building System (including, without limitation, the mechanical, plumbing,
electrical or life-safety systems of the Building), (i) Tenant shall select a
contractor from the list of contractors set forth on Exhibit C to this
Lease, and (ii) at Landlord’s option, the Alteration shall, at Tenant’s cost
and expense, be designed under Landlord’s supervision by an engineer designated
by Landlord for the relevant Building System


13





                    (E)
Any mechanic’s lien filed against the Premises or the Real Property for work
claimed to have been done for or on behalf of Tenant, or materials claimed to
have been furnished to or on behalf of Tenant, shall be discharged by Tenant
within thirty (30) days after Tenant shall have received notice thereof, at
Tenant’s expense, by payment or filing the bond required by law. Tenant shall
not, at any time prior to or during the Term, directly or indirectly employ, or
permit the employment of, any contractor, mechanic or laborer in the Premises,
whether in connection with any Alteration or otherwise, if such employment
would interfere or cause any conflict with other contractors, mechanics or
laborers engaged in the construction, maintenance or operation of the Building
by Landlord or Tenant. In the event of any such interference or conflict,
Tenant, upon demand of Landlord, shall cause all contractors, mechanics or
laborers causing such interference or conflict to leave the Building
immediately.


          Section
3.2 (A) Subject to the other applicable provisions of this Article 3,
Landlord shall contribute an amount not to exceed $5,137,911.00 or, if Tenant
shall have elected to extend the Fixed Rent Abatement Period in accordance with
Section 1.4 of this Lease, to $3,750,000.00 (as applicable, the “Tenant Fund”)
toward (i) the cost (other than FFE Costs and/or Soft Costs) of the performance
of certain Alterations to be performed by Tenant in order to prepare the
Premises for Tenant’s occupancy (the “Initial Alterations”), (ii) the cost
of furniture, furnishings and equipment (collectively, the “FFE”) for the
Premises (the costs described in this clause (ii) being collectively referred
to herein as “FFE Costs”), and (iii) the fees of architects, engineers,
expediters and consultants incurred in connection with the performance of the
Initial Alterations and the purchase of the FFE (the costs described in this
clause (iii) being collectively referred to herein as “Soft Costs”).
Notwithstanding anything to the contrary provided in this Lease (i) Tenant
shall not be entitled to receive a portion of the Tenant Fund for FFE Costs
and/or Soft Costs earlier than the Commencement Date; and (ii) Landlord shall
not be required to contribute toward FFE Costs and Soft Costs an amount which
is, in the aggregate, in excess of 25% of the Tenant Fund (of which, not more
than 10% shall be contributed to FFE Costs). Landlord shall disburse the Tenant
Fund in accordance with and subject to the provisions of the next following
Sections.


                    (B)
Commencing on the Commencement Date, Tenant may make monthly requests from the
Tenant Fund for the portion of Tenant’s Initial Alterations and FFE Costs and
Soft Costs paid or incurred by Tenant with respect to the immediately preceding
month. Landlord shall disburse a portion of the Tenant Fund to Tenant from time
to time, within twenty-five (25) days after receipt of the items set forth in
Section 3.2(C) hereof, provided that such request is received by Landlord by
the tenth (10th) day of the calendar month in which Landlord receives such
request; and further provided that on the date of disbursement from the Tenant
Fund, no Event of Default under the Lease shall have occurred and be
continuing. Disbursements from the Tenant Fund shall not be made more frequently
than monthly, and shall be in an amount equal to the amount which is then due
Tenant’s contractors (as certified by a duly authorized officer of Tenant and
by Tenant’s independent, licensed architect) and which has not been the subject
of a previous disbursement from the Tenant Fund, after first deducting
retainage equal to ten percent (10%) of the entire amount then due (provided,
however, that no retainage shall be withheld in respect of Soft Costs).
Notwithstanding the foregoing, if Tenant’s contract with the contractor shall
have provided for Tenant to withhold 10% retainage, then Landlord shall
disburse the full amount due such contractor set forth in its requisition (with
the result being that


14





Landlord shall hold such 10% retainage). (By way of example, assuming
that Tenant’s contract with a contractor provides for 10% retainage and, in
connection with a request for a disbursement from the Tenant Fund, the
contractor has performed $100 of work covered by such request and is therefore
then due $90.00, Landlord shall pay the $90.00 due to such contractor and
retain $10.00 as retainage in accordance with this Section). Unless Tenant
shall have previously paid Tenant’s Contractor the sums requested from the
Tenant Fund, Tenant shall promptly pay any such sums disbursed from the Tenant
Fund to Tenant’s Contractors or to such other vendors as shall be entitled
thereto. Landlord shall pay to Tenant the balance of the Tenant Fund to Tenant
within thirty (30) days after completion of the Initial Alterations. Similarly,
Tenant shall pay the balance of all retainage then withheld by Tenant when due
under the respective agreements pertaining thereto and provide Landlord with
evidence of such payment. If Landlord in good faith believes it is not obligated
to make a requested disbursement from the Tenant Fund, Landlord may (subject to
the provisions set forth below, including, without limitation, the right to
arbitrate such dispute) withhold such disbursement, provided it shall notify
Tenant in writing within twelve (12) Business Days after receipt of Tenant’s
request for disbursement of Landlord’s detailed reasons for withholding such
disbursement (a “Disbursement Dispute Notice”). If Landlord fails or
refuses to pay any part of Tenant’s requisition from the Tenant Fund without
providing Tenant with a Disbursement Dispute Notice, Tenant may upon a further
five (5) Business Days’ notice (during which time Landlord may elect to make
the disputed disbursement and thereby nullify Tenant’s right to an abatement,
as hereinafter provided, without waiving its right to thereafter dispute
Tenant’s entitlement to such amount) offset the amount of such requested
disbursement, together with interest thereon at the Applicable Rate from the
date such amounts were due until the date paid or offset against the next
ensuing Rents payable hereunder. If Landlord provides Tenant with a
Disbursement Dispute Notice, then Tenant shall not be permitted to offset any
such amounts, and Tenant and Landlord shall endeavor to resolve such dispute
within the next ten (10) Business Days and thereafter (if the Landlord has
still not paid such portion of the Tenant Fund) Tenant may submit to
arbitration (in accordance with Section 38.7 of this Lease) the issue of
Landlord’s obligation to make the disbursement in question. If Tenant obtains
an arbitration decision that Landlord was obligated to pay all or any portion
of the requested disbursement (or if the Landlord subsequently concedes that
such amount is due, with or without an arbitration), Landlord shall within ten
(10) Business Days of such decision pay such amount to Tenant, together with
interest at the Applicable Rate, as aforesaid. To the extent that Landlord
fails to pay such amount within such ten (10) Business Day period, then Tenant
shall have the right to offset any such amounts, together with interest at the
Applicable Rate from the date such amount should have been paid until the date-a
offset against the next ensuing Rents payable hereunder.


                    (C)
Landlord’s obligation to make disbursements from the Tenant Fund shall be
subject to the receipt of: (i) a request for such disbursement from Tenant,
together with the certification required by Section 3.2(B) hereof, (ii) copies
of all receipts, invoices and bills for the work completed and materials
furnished in connection with the Initial Alterations, or with respect to FFE
Costs and/or Soft Costs which, in either case, have been paid by Tenant or
which are then due and for which Tenant is seeking reimbursement, (iii) with
respect to disbursements of the Tenant Fund to cover costs other than FFE Costs
and/or Soft Costs, a certificate of Tenant’s independent licensed architect on
Standard AIA form G-702 (or such other form as is reasonably approved by
Landlord) stating (A) that, in such architect’s opinion, the portion of the


15





Initial Alterations theretofore completed and for which the
disbursement is requested was performed in a good and workerlike manner
substantially in accordance with the final detailed plans and specifications
for such Initial Alterations, as approved (or deemed approved) by Landlord, (B)
the percentage of completion of such Initial Alterations as of the date of such
certificate, (C) the estimated total cost to complete the performance of such Initial
Alterations, and (D) with the exception of the first request for a disbursement
from the Tenant Fund, partial lien waivers from each contractor, subcontractor
and materialman who performed work in excess of $10,000.00 requested by Tenant
in connection with such Initial Alterations. Notwithstanding the foregoing, to
the extent that any requisition from the Tenant Fund shall be intended to
reimburse Tenant for any FFE Costs, Tenant shall: (i) deliver a statement,
certified by an officer of Tenant accurately describing the FFE Costs for which
payment is being requested and setting forth the amount of the disbursement
from the Tenant Fund being requested and attributable to the FFE; (ii) deliver
copies of invoices or bills of sale; and (iii) if the FFE is stored away from
the Premises, identify the location of the off-Premises storage.


                    (D)
In no event shall the aggregate amount paid by Landlord to Tenant under this Article
3 exceed the amount of the Tenant Fund. It is expressly understood and
agreed that Tenant shall complete, at its sole cost and expense, the Initial
Alterations and pay all FFE Costs and/or Soft Costs, whether or not the Tenant
Fund is sufficient to fund the completion of such Initial Alterations and FFE
Costs and/or Soft Costs. Tenant shall not be entitled to any payment or credit
on account of the excess.


                    (E)
Within thirty (30) days after completion of the Initial Alterations, Tenant
shall deliver to Landlord final waivers of lien from all contractors,
subcontractors and materialmen involved in the performance of the Initial
Alterations whose work cost in excess of $10,000.00 and the materials furnished
in connection therewith in excess of $10,000.00 and a certificate from Tenant’s
independent licensed architect certifying that, in his or her opinion, such
Initial Alterations have been performed in a good and workerlike manner and
completed substantially in accordance with the final detailed plans and
specifications for such Initial Alterations as approved by Landlord.


                    (F)
Landlord reserves the right to impose reasonable requirements as a condition of
such consent or otherwise in connection with the performance of the Initial
Alterations in question, including, without limitation, that Alterations such
as “core drilling”, demolition and any work requiring an interruption or
shut-down of Building Systems, shall be performed after Business Hours
(provided, however, that Alterations which will not disturb other tenants may,
subject to other applicable provisions of this Lease, be performed during
Business Hours).


                    (G)
Notwithstanding any contrary provision contained in this Lease: (i) all
Alterations and FFE made or purchased at Tenant’s expense (i.e., those
Alterations and FFE not paid for with the Tenant Fund) shall be deemed to be
owned by Tenant for the purposes of income taxes and Tenant shall have the
right to depreciate the cost of such Alterations, (ii) all Alterations and FFE
made or purchased with the Tenant Fund shall be deemed to be owned by Landlord
for the purposes of income taxes and Landlord shall have the right to
depreciate the cost of such Alterations and FFE, and (iii) in no event shall
(A) any Tenant’s Property be deemed Alterations or (B) Tenant’s Property be
deemed to include any FFE purchased with the Tenant


16





Fund. Landlord shall be the owner of all FFE purchased with the Tenant
Fund, and Tenant shall maintain all of such FFE throughout the Term of this
Lease in good order and condition; provided, however, that Tenant shall have
the right, during the Term, to use the FFE purchased by Tenant with the Tenant
Fund. Landlord shall have no liability or obligations of any nature whatsoever
to Tenant with respect to said FFE during the Term of this Lease. No portion of
the Rent payable under this Lease shall be deemed for any purpose paid on
account of the use of the FFE by Tenant; and Tenant shall pay all sales taxes,
if any, imposed by New York State or New York City in connection with the
purchase or the use of said FFE by Tenant.


                    (H)
Notwithstanding any contrary provision contained in this Lease,
Tenant may not make any request for payment or reimbursement from the Tenant
Fund subsequent to the third (3rd) anniversary of the later of (x) date on
which Landlord shall have substantially completed all of Landlord’s
Pre-Commencement Date Work and (y) the Commencement Date.


          Section
3.3 Except with respect to the Initial Alterations, Tenant shall pay to
Landlord all reasonable out-of-pocket costs and expenses paid or incurred by
Landlord in connection with security, temporary barricades, janitorial,
engineering and architectural or consulting services furnished in connection
with any Alterations performed by Tenant. With respect to all Alterations
(including the Initial Alterations), Tenant shall pay to Landlord or to
Landlord’s agent, as additional rent all reasonable third party out-of-pocket
expenses incurred by Landlord in connection with Landlord’s review of plans and
specifications for any Alterations (including the Initial Alterations) to be
performed by Tenant, and for the inspection only of such Alterations,
including, without limitation, all fees and disbursements charged by outside
experts retained by Landlord for the purpose of reviewing and inspecting such
Tenant’s Alterations (the “Review Costs”). The Review Costs shall be
paid by Tenant within thirty (30) Business Days after Landlord’s demand
therefor. Tenant shall not be charged any fee payable to Landlord or its managing
agent (in contradistinction to professional fees payable to third parties) with
respect to any Alterations, including, without limitation, the Tenant’s Initial
Alterations.


          Section
3.4 Upon the request of Tenant, Landlord, at Tenant’s cost and expense,
shall join in any applications for any permits, approvals or certificates
required to be obtained by Tenant in connection with any Alteration, including
any Initial Alteration (provided that the provisions of the applicable
Requirement shall require that Landlord join in such application) and shall
otherwise cooperate with Tenant in connection therewith, provided that (i)
Landlord in good faith believes that such application and related documentation
were properly prepared, (ii) Landlord shall not be obligated to incur any cost
or expense, including, without limitation, attorneys’ fees and disbursements,
or suffer any liability in connection therewith, (iii) Landlord’s execution of
such applications and documents shall not be deemed to constitute Landlord’s
approval of any Alterations described in such applications or documents, and,
if Landlord, pursuant to Section 3.1 hereof, shall disapprove any Alterations
described in such applications or documents (including all or any portion of
the Initial Alterations), then any such applications and documents, as well as
any permits, certificates and approvals obtained thereby, shall either be
promptly withdrawn or canceled by Tenant or promptly revised and resubmitted
for filing to the New York City Buildings Department to the extent permitted by
applicable Requirements, and (iv) Tenant shall agree to indemnify and hold
harmless Landlord and the Landlord Indemnitees


17





from and against any cost, expense, fine, penalty, liability or damage
incurred in connection with the signing of any such application or
documentation.


          Section
3.5 Notwithstanding the foregoing, Landlord shall not unreasonably
withhold, condition or delay its consent to the installation of a supplementary
air conditioning system of up to twenty-five (25) tons of capacity to service
the Premises. In connection therewith, Landlord shall furnish approximately
twenty-five (25) tons of condenser water (the “Condenser Water Allocation”)
to the condenser water cooled supplementary air conditioning system to be
installed by Tenant in the Premises. Such condenser water shall be available to
Tenant at all times during each year of the Term during Business Hours on
Business Days; and, at all other times, such condenser water shall be available
to Tenant on an overtime basis in accordance with Section 28.3 of the Lease.
Commencing on the earlier to occur of (x) the date that Tenant first taps in to
a condenser water riser and (y) the date Tenant first occupies the Premises for
the conduct of its business, Tenant shall pay Landlord an annual charge for the
Condenser Water Allocation at the rate of $500.00 per ton of condenser water
per annum, which shall be subject to increase as hereinafter provided. Tenant
shall have the right, during the period commencing on the Commencement Date and
ending on the first anniversary of the date that Landlord substantially
completes all of Landlord’s Pre-Commencement Date Work, to increase the
Condenser Water Allocation by up to ten (10) additional tons of condenser water
for supplemental cooling. There shall be no cost to Tenant in connection with
Landlord’s reservation of said additional ten (10) tons of condenser water,
provided that once Tenant elects to increase the Condenser Water Allocation, as
aforesaid, Tenant shall pay for such additional condenser water at the rate of
$500.00 per ton of condenser water per annum, which shall be subject to
increase as hereinafter provided. The condenser water charges payable by Tenant
under this Section shall be payable as Additional Rent under this Lease, in
equal monthly installments commencing on the earlier to occur of (x) the date
that Tenant first taps in to a condenser water riser and (y) the date Tenant
first occupies the Premises for the conduct of its business, which charge shall
be subject to increase from time to time by Landlord to reflect Landlord’s
increased cost of providing such condenser water. In addition to the foregoing
charges there shall be a one-time “tap-in” fee equal to $1,500 per tap payable
within thirty (30) days after rendition of an invoice to Tenant therefor.
Tenant may on a one time basis within one hundred eighty (180) days after the
Commencement Date deliver a notice to Landlord (the “Condenser Water
Reduction Notice”) to permanently reduce the Condenser Water Allocation by
the number of tons set forth in such Condenser Water Reduction Notice;
provided, however, that if Tenant shall fail to timely deliver the Condenser
Water Reduction Notice, as aforesaid, Tenant shall continue to be charged for
the entire Condenser Water Allocation and for any additional condenser water
made available to Tenant in connection with the right of first offer set forth
in this Section. At all times during the Term, the maximum temperature of the
Building’s condenser water shall be eighty-five (85°) degrees Fahrenheit when
outdoor temperatures shall be ninety-two (92°) degrees Fahrenheit (dry bulb)
and seventy-four (74°) degrees Fahrenheit (wet bulb). Notwithstanding the
foregoing, Landlord shall not be liable to Tenant for any failure or defect in
the supply or character of condenser water supplied to Tenant by reason of any
Requirements, or any act or omission of the public service company serving the
water to the Building, or for any other reason not attributable to the
negligence or a breach of this Section by Landlord, its agents, contractors and
employees; and Landlord may, upon not less than five (5) Business Days’ notice
to Tenant, be entitled to


18





perform maintenance on the Building’s cooling towers during Overtime
Hours. Tenant shall not be permitted to install any air-cooled air conditioning
equipment in the premises.


          Section
3.6 If Tenant shall have duly filed a completed New York City Buildings
Department Permit Application for the performance of Tenant’s Initial
Alterations, and the issuance of such permit shall be denied solely as a result
of the existence of one or more violations of any Requirements affecting the
Property (including, without limitation, the ADA, New York City and New York State
laws and codes), other than any such violations caused by Tenant or by any of
Tenant’s contractors, agents, or employees, and if Landlord fails to cure such
violation within ten (10) days of Tenant’s written notice to Landlord thereof,
then the Rent Abatement Period shall be extended by one (1) day for each day
that Landlord fails to cure such violation in excess of ten (10) days until
Landlord cures such violation or the permit for Tenant’s Initial Alterations is
issued, whichever shall be first.


          Section
3.7 Any dispute arising out Tenant’s entitlement to, or the extent of, an
extension of the Rent Abatement Period, as provided in Section 3.6, or whether
Landlord’s granting or denial of its approval to any Alteration (including the
Initial Alterations) was reasonable, or whether or not such approval is
required, shall be resolved by arbitration in accordance with the provisions of
Section 38.7 of this Lease. Pending the determination of the arbitrator (i) if
the dispute relates to Tenant’s entitlement to, or the extent of, an extension
of the Rent Abatement Period, Tenant shall pay all Fixed Rent and Additional
Rent, and perform all other obligations consistent with Landlord’s
determination, subject to refund or credit, together with interest at the
Applicable Rate, on the amount so refunded or credited (such interest to
computed from the date such amount to be refunded or credited was paid by
Tenant to Landlord), within thirty (30) days of the date that such matter is
resolved by arbitration or by mutual agreement; and (ii) if the dispute relates
to Landlord’s granting or denial of its approval to any Alteration (including
the Initial Alterations), or whether or not such approval is required, Tenant
shall not commence the performance of any Alteration that is the subject of
such dispute except to the extent that the same was approved by Landlord. If
the arbitrator shall determine that Landlord unreasonably withheld, conditioned
or delayed its approval, or that the Alteration in question did not require the
approval of Landlord, then Tenant’s sole remedy shall be to perform such
Alteration, subject to all other applicable provisions of this Lease.


          Section
3.8 Notwithstanding any provision to the contrary in this Article, but
subject to Landlord’s prior approval of the plans and specifications therefor,
and the particular manner of installation thereof, Landlord approves: (i) the
installation by Tenant of an Alteration consisting of an interconnecting
staircase between any two vertically adjacent floors all or a portion of which
are within the Premises provided that such staircase is installed at a location
determined by Tenant and reasonably approved by Landlord; (ii) the installation
by Tenant of Alterations consisting of up to two (2) private lavatories per
floor, which private lavatories shall be installed near the Building core at a
location determined by Tenant and reasonably approved by Landlord; and (iii)
the installation by Tenant of conduit in the riser connecting portions of the Premises.
The Alterations described in clauses (i) and (ii) of the immediately preceding
sentence shall be deemed to be Specialty Alterations under this Lease, and
shall be removed by Tenant on or before the Expiration Date, unless Landlord,
by notice to Tenant delivered not later than the


19





ninetieth (90th) day before the Expiration Date of this Lease, elects
to waive Tenant’s obligation to remove said Specialty Alterations.


          Section
3.9 Without limiting any other provision of this Lease, all Initial
Alterations and all other Alterations performed by Tenant in the Premises shall
be performed in accordance with the requirements of the ICIP program (as said
term is defined in Section 27.2(C)) as such requirements are set forth in
Section 27.2(C) of this Lease.


ARTICLE 4


REPAIRS-FLOOR LOAD


          Section
4.1 Landlord shall operate, maintain and make all necessary repairs (both
structural and nonstructural) to any part of the Building Systems which provide
service to the Premises (but not to the distribution portions of any such
Building Systems located within the Premises unless any damage or injury
thereto is caused by Landlord), the exterior and structural portions of the
Building, windows and window frames, the core lavatories, and the public portions
and common areas of the Building, both exterior and interior, in conformance
with standards applicable to non-institutional first class (Class A) office
buildings in Manhattan. Tenant, at Tenant’s sole cost and expense, shall take
good care of the Premises (except with respect to the core lavatories located
within the Premises), and the fixtures, equipment and appurtenances therein and
the distribution systems and shall make all nonstructural repairs thereto as
and when needed to preserve them to good working, order and condition, except
for reasonable wear and tear, obsolescence and damage for which Tenant is not
responsible pursuant to the provisions of Article 10 hereof (provided, however,
that Tenant shall not be obligated to take good care of, or to make such
nonstructural repairs to, any portion of Landlord’s Post-Commencement Date Work
until it has been completed). Notwithstanding the foregoing, all damage or
injury to the Premises or to any other part of the Building and Building
Systems, or to its fixtures, equipment and appurtenances, whether requiring
structural or nonstructural repairs, caused by or resulting from carelessness,
neglect or improper conduct of, or Alterations made by, Tenant, Tenant’s
agents, employees or licensees, shall be repaired at Tenant’s sole cost and
expense, by Tenant to the reasonable satisfaction of Landlord (if the required
repairs are nonstructural in nature and do not affect any Building System), or
by Landlord (if the required repairs are structural in nature or affect any
Building System). All of the aforesaid repairs shall be of first quality and of
a class consistent with non-institutional first class (Class A) office building
work or construction and shall be performed as an Alteration in accordance with
the provisions of Article 3 hereof. If Tenant fails after ten (10) days’ notice
(or such longer period as Landlord may be permitted pursuant to any Superior
Lease or Mortgage or such shorter period as may be required due to an
emergency) to proceed with due diligence to make repairs required to be made by
Tenant, the same may be made by Landlord after a two (2) Business Day second
notice to Tenant at the expense of Tenant, and the expenses thereof incurred by
Landlord, with interest thereon at the Applicable Rate, shall be forthwith paid
to Landlord as additional rent after rendition of a bill or statement therefor.
Tenant shall give Landlord notice of any defective condition to the Building or
in any Building System, located in, servicing or passing through the Premises,
promptly after Tenant first learns thereof.


20





          Section
4.2 Tenant shall not place a load upon any floor of the Premises exceeding
one hundred twenty (120) pounds per square foot “live load”; provided, however,
if Tenant shall desire a floor load in excess of that which such floor was
designed to carry and that is permitted by law, Tenant shall have the right
(provided Tenant first obtains the written approval of Landlord (which Landlord
shall not unreasonably withhold, condition or delay) with respect to the
specific excess floor loading installation contemplated by Tenant and the
method of installation and reinforcement proposed by Tenant in accordance with
and subject to Article 3 of this Lease) to perform the work necessary to strengthen
and reinforce the floor so as to give the live load desired, provided Tenant
complies with the provisions of Article 3. Tenant shall not move any safe,
heavy machinery, heavy equipment, business machines, freight, bulky matter or
fixtures into or out of the Building without Landlord’s prior consent, which
consent shall not be unreasonably withheld, conditioned or delayed and shall
make payment to Landlord of Landlord’s costs to connection therewith. If such
safe, machinery, equipment, freight, bulky matter or fixtures requires special
handling, Tenant shall employ only persons holding a Master Rigger’s license to
do said work. All work in connection therewith shall comply with all
Requirements and the Rules and Regulations. Business machines and mechanical
equipment shall be placed and maintained by Tenant at Tenant’s expense in
settings sufficient to Landlord’s reasonable judgment to absorb and prevent
vibration, noise and annoyance. Except as expressly provided in this Lease,
there shall be no allowance to Tenant for a diminution of rental value and no
liability on the part of Landlord by reason of inconvenience, annoyance or
injury to business arising from Landlord, Tenant or others making, or failing
to make, any repairs, alterations, additions or improvements in or to any
portion of the Building or the Premises, or in or to fixtures, appurtenances or
equipment thereof.


          Section
4.3 Landlord shall use its reasonable efforts to minimize interference with
Tenant’s use and occupancy of the Premises in making any repairs, alterations,
additions or improvements; provided, however, that Landlord shall have no
obligation to employ contractors or labor at so-called overtime or other
premium pay rates or to incur any other overtime costs or expenses whatsoever,
except that Landlord, at its expense but subject to recoupment pursuant to
Article 27 hereof, shall employ contractors or labor at so-called overtime or
other premium pay rates if necessary to make any repair required to be made by
it hereunder to remedy any condition that either (i) results in a denial of
access to the Premises, (ii) threatens the health or safety of any occupant of
the Premises, or (iii) except in the case of a fire or other casualty,
materially interferes with Tenant’s ability to conduct its business in the
Premises. In all other cases, at Tenant’s request, Landlord shall employ
contractors or labor at so-called overtime or other premium pay rates and incur
any other overtime costs or expenses to making any repairs, alterations,
additions or improvements, and Tenant shall pay to Landlord, as additional
rent, within ten (10) Business Days after demand, an amount equal to the
difference between the overtime or other premium pay rates and the regular pay
rates for such labor and any other overtime costs or expenses so incurred.


          Section
4.4 If Landlord shall default in the observance or performance of any term
or covenant on Landlord’s part to be observed or performed under or by virtue
of any of the terms or provisions of Sections 4.1 or 6.1 of this Lease, and
provided such default shall materially adversely affect (i) Tenant’s ability to
perform Tenant’s Initial Alterations, or (ii) Tenant’s ability to conduct its
business in the Premises then, to the extent such default shall not be the
result of


21





Unavoidable Delays or a corresponding breach by Tenant of its
obligations under this Lease, and to the extent such default can be cured
solely by the performance of work within the Premises which shall not affect
any structural elements of the Building or the Building exterior, or adversely
affect any Building Systems, then Tenant may cure such default on condition
that (x) Landlord shall fail to remedy such default after Tenant shall have
notified Landlord in writing of such default and Landlord shall not have cured
such default within ten (10) Business Days after such notice, or in the case of
a default which cannot with due diligence be cured within a period of ten (10)
Business Days, if Landlord shall not within said ten (10) Business Day period
have used commercially reasonably efforts to commence to remedy the situation
and thereafter diligently prosecute such remedy to completion, and (y) prior to
actually curing such default, Tenant shall have given Landlord prior written
notice (herein called the “Section 4.4 Self-Help Notice”) of the work
Tenant expects to perform in order to remedy such default and Landlord shall
not have indicated in writing to Tenant within a five (5) Business Day period
after delivery of such Section 4.4 Self-Help Notice Landlord’s intention to
cure such default, or shall not immediately after the giving of such Section
4.4. Self-Help Notice have instituted steps to remedy the situation and
diligently prosecuted such remedy to completion. The extent of the work
performed by Tenant in curing any such default by Landlord shall not exceed the
work that is reasonably necessary to effectuate such remedy; and the cost of
curing such default and effecting such remedy shall, for the purpose of
determining the amount which Landlord may be obligated to reimburse to Tenant
under this Section 4.4 as set forth below, be reasonable under the
circumstances. Upon completion of any such cure of Landlord’s default, Tenant
shall give notice thereof (herein called the “Section 4.4 Completion Notice”)
to Landlord together with a copy of invoices and back-up setting forth the
costs and expenses incurred by Tenant to complete such cure. Landlord shall pay
or reimburse Tenant, within twenty (20) Business Days after receipt of Tenant’s
Section 4.4 Completion Notice, for the actual out-of-pocket expenses reasonably
incurred by Tenant in performing any such work and completing such cure. In the
event that Landlord shall fail timely to reimburse Tenant for any such work
performed in accordance herewith, then Tenant shall have the right (herein
called “Tenant’s Section 4.4 Offset Right”) to offset any such
unreimbursed amount against Rent next becoming due under this Lease, with
interest thereon at the Applicable Rate from the date such reimbursement was
due until the date so offset. Notwithstanding the foregoing, Tenant shall not
have Tenant’s Section 4.4 Offset Right to the extent of any amount regarding
which Landlord shall give Tenant notice that Landlord disputes together with a
reasonably detailed description of the basis for Landlord’s dispute. Any such
dispute which is not resolved between the parties within twenty (20) Business
Days after the giving of Landlord’s notice of dispute may be submitted by
either party to arbitration in accordance with the provisions of Section 38.7
of this Lease. If Landlord continues to fail to reimburse Tenant for twenty
(20) Business Days after Tenant has obtained a final determination from the
arbitrators in Tenant’s favor, Tenant shall again have Tenant’s Section 4.4
Offset Right. The parties to this Lease acknowledge that the rights and
remedies of Tenant under this Section 4.4 are not intended to limit any other
right or remedy that Tenant may have under any other express provision of this
Lease (except to the extent such right or remedy may be limited under an
express provision of this Lease).


22





ARTICLE 5


WINDOW CLEANING


          Tenant
shall not clean, nor require, permit, suffer or allow any window in the
Premises to be cleaned from the outside in violation of Section 202 of the
Labor Law, or any other Requirement, or of the rules of the Board of Standards
and Appeals, or of any other board or body having or asserting jurisdiction.


ARTICLE 6


REQUIREMENTS OF LAW


          Section
6.1 Commencing upon the Commencement Date, Tenant, at its sole cost and
expense, shall comply with all Requirements applicable to the Premises (except
for any Requirements relating to the performance of Landlord’s
Post-Commencement Date Work), including, without limitation, those applicable
to the making of any Alterations by Tenant therein or the result of the making
thereof and those applicable by reason of the nature or type of business
operated by Tenant in the Premises. Without limiting the foregoing but subject
to the provisions of this Section 6.1, Tenant shall, at Tenant’s sole cost and
expense, take all action, including, without limitation, the making of any
required Alterations necessary to comply with the applicable terms of any local
laws and regulations promulgated by the City of New York including, without
limitation, Local Laws No. 5 of 1973, No. 16 of 1984, No. 76 of 1985, No. 58 of
1987 as modified and supplemented from time to time, and any amendments to the
Americans With Disabilities Act of 1990 (the “ADA”), each as modified and
supplemented from time to time, which shall impose any violation, order or duty
upon Landlord or Tenant arising from, or in connection with, the Premises,
Tenant’s occupancy, use or manner of use of the Premises (including, without
limitation, any occupancy, use or manner of use that constitutes a “place of
public accommodation” under the ADA), or any installations in the Premises, or
required by reason of a breach of any of Tenant’s covenants or agreements under
this Lease, whether or not such Requirements shall now be in effect or
hereafter enacted or issued, and whether or not any work required shall be
ordinary or extraordinary or foreseen or unforeseen at the date hereof.
Notwithstanding the foregoing, nothing herein shall require Tenant to make any
structural repairs or any Alterations unless Tenant has, by its particular
manner of use of the Premises, other than for the uses permitted under this
Lease, violated any laws, ordinances, orders, rules, regulations or requirements
with respect thereto. Landlord shall be responsible for compliance with ADA and
New York City Requirements as they relate to the Building generally but not as
they relate to the Premises, including the lavatories on the 18th floor of the
Building and, until an ADA-compliant common lavatory shall be installed on the
18th floor, Landlord shall take whatever action may be necessary to comply with
the ADA (including, the installation of a sign directing where any
ADA-compliant lavatory is located). Landlord shall cure any and all violations
with ADA and New York City Requirements, as they relate to the Building
generally but not the Premises. Notwithstanding the foregoing, Landlord and
Tenant agree that with respect to Building core lavatories (i) Tenant shall be
solely responsible for the performance of any Alterations required to make the
17th floor core lavatories comply with the requirements of the ADA and any
similar New York City Requirements (but Landlord shall be responsible
thereafter


23





for causing such lavatories to comply with any changes in such
Requirements, including any changes in the ADA); and (ii) Landlord shall be
solely responsible for the performance of any Alterations required to make any
other core lavatories located within any portion of the Premises comprising one
or more full floors of the Building comply with the requirements of the ADA and
any similar New York City Requirements if, as, and when Tenant shall lease all
of the rentable area of such floor(s).


          Section
6.2 Without limiting the provisions of Section 6.1 hereof, Tenant covenants
and agrees that Tenant shall, at Tenant’s sole cost and expense, comply at all
times with all Requirements governing the use, generation, storage, treatment
and/or disposal of any Hazardous Materials, the presence of which results from
or in connection with the act or omission of Tenant, its contractors,
licensees, agents, servants or employees if such party has a duty to act
pursuant to this Lease, or the breach of this Lease by Tenant. Tenant shall
agree to execute, from time to time, at Landlord’s request, affidavits,
representations and the like regarding the presence of Hazardous Materials in,
on, under or about the Premises, the Building or the Property. Tenant shall
indemnify and hold harmless all Landlord Indemnitees from and against any loss,
cost, damage, liability or expense (including attorneys’ fees and disbursements
through all appeals) arising by reason of any testing, clean up, removal,
remediation, detoxification action or any other activity required or
recommended of any Landlord Indemnitees by any Government Authority by reason
of the presence in or about the Building, the Premises or the Property of any
Hazardous Materials, as a result of or in connection with the act or omission
of Tenant, its contractors, licensees, agents, servants or employees, if such
party had a duty to act pursuant to this Lease, or the breach of this Lease by
Tenant. The foregoing covenants and indemnity shall survive the expiration or
any termination of this Lease.


          Section
6.3 (A) Landlord agrees that, in the event that any asbestos-containing
materials (“ACM”) shall be discovered in the Premises during the Term then,
provided that such ACM shall not have been introduced into the Premises by
Tenant or its agents, contractors or employees, Landlord shall abate any such
ACM, including vinyl asbestos tiles, in accordance with applicable
Requirements, at Landlord’s sole cost and expense (such abatement or removal is
herein referred to as “ACM Abatement Work”). As used in this Article the
terms “abate” or “abatement” (i) when used with respect to ACM used for
fireproofing or other purpose necessary or appropriate for the continued
occupancy and operation of the Premises for the uses permitted under this Lease
shall include the replacement of such removed or abated asbestos or
asbestos-containing materials with suitable substitute materials, and (ii) may
include in lieu of removal, the enclosure, encapsulation or other method of
remediating such ACM in those instances where removal is unduly burdensome,
unduly expensive or not consistent with commonly accepted and reasonable ACM
abatement/remediation procedures. If Tenant, or any contractor or consultant or
employee of Tenant, interferes with or delays the progress or completion of ACM
Abatement Work by, among other things: (i) failing to timely comment upon any
plans and specifications relating to ACM Abatement Work, or (ii) requesting
changes in plans and specifications relating to ACM Abatement Work, (iii)
denying or providing inadequate access to Landlord and its contractors or (iv)
otherwise interfering with or delaying Landlord’s performance (except to the
extent such interference or delay is de minimis) of such work, then Tenant
shall be liable for and shall reimburse Landlord for all additional fees, costs
and expenses paid or incurred by Landlord and for all damages resulting from
such delay, within thirty (30) days after being billed therefor


24





and, to the extent that any such delay results in a delay in the
occurrence of the Commencement Date, the Commencement Date shall be accelerated
by the aggregate period of any such delay.


                    (B)
Landlord shall restore any areas of the Premises that have been damaged by the
ACM Abatement Work, and Fixed Rent shall abate during the period Tenant cannot
and is not using the Premises or portion thereof because of Landlord’s ACM
Abatement Work in proportion to the area of the Premises not used by Tenant.
Any encapsulation of ACM located within the Premises in connection with the
performance of Landlord’s ACM Abatement Work shall not result in a reduction in
the cubic area of the Premises beyond a de minimis amount.


          Section
6.4 Tenant shall not do or permit to be done any act or thing upon the
Premises which will invalidate or be in conflict with a standard “all-risk”
insurance policy carried by or for the benefit of Landlord, it being agreed
that the uses permitted under this Lease will not cause such a violation; and
shall not do, or permit anything to be done in or upon the Premises, or bring
or keep anything therein, except as now or hereafter permitted by the New York
City Fire Department, New York Board of Fire Underwriters, the Insurance
Services Office or other authority having jurisdiction and then only in such
quantity and manner of storage as not to increase the rate for fire insurance
applicable to the Building, or use the Premises in a manner (other than for the
uses permitted under this Lease) which shall increase the rate of fire
insurance applicable to the Premises. If by reason of Tenant’s failure to
comply with the provisions of this Article, the fire insurance rate applicable
to the Premises shall on or after the Commencement Date during the Term be
higher than it otherwise would be, provided that such fire insurance shall have
been adequate at all times during the Term, then Tenant shall desist from doing
or permitting to be done any such act or thing and shall reimburse Landlord, as
additional rent hereunder, for that part of all fire insurance premiums
thereafter paid by Landlord which shall have been charged because of such
failure by Tenant, and shall make such reimbursement upon demand by Landlord.
In any action or proceeding wherein Landlord and Tenant are parties, a schedule
or “make up” of rates for the Building or the Premises issued by the Insurance
Services Office, or other body fixing such fire insurance rates, shall be
presumptive evidence of the facts therein stated and of the several items and
charges in the fire insurance rates then applicable to the Premises.


ARTICLE 7


SUBORDINATION


          Section 7.1
Subject to the provisions of Section 7.5 of this Article 7, this Lease shall be
subject and subordinate to each and every Superior Lease and to each and every
Mortgage, which now affect the Building or the Real Property. Subject to the
following, this clause shall be self-operative and no further instrument of
subordination shall be required from Tenant to make the interest of any Lessor
or Mortgagee superior to the interest of Tenant hereunder; however, Tenant
shall execute and deliver promptly any instrument, in recordable form, that
Landlord, any Mortgagee or Lessor may reasonably request to evidence and
confirm such subordination. If, in connection with the financing of the Real
Property, any lending institution shall request reasonable modifications of
this Lease that do not increase Tenant’s monetary obligations under this Lease,
or affect or diminish the rights, or increase the other obligations of Tenant
under this Lease, Tenant shall make such modifications; and Landlord shall
reimburse Tenant for any


25





reasonable legal fees and charges paid or incurred by Tenant in
connection therewith. Landlord hereby represents to Tenant that, as of the date
of this Lease, (i) the only Mortgage encumbering the Property is that certain
Mortgage dated as of October 10, 2003, recorded on October 14, 2003 in CRFN
2003000421039 from Landlord to Landesbank Hessen-Thuringen Girozentrale; and
(ii) there is no Superior Lease encumbering the Building or the Property.


          Section
7.2 If at any time prior to the expiration of the Term, any Superior Lease
shall terminate or be terminated for any reason or any Mortgagee comes into
possession of the Real Property or the Building or the estate created by any
Superior Lease by receiver or otherwise, Tenant agrees, at the election and
upon demand of any owner of the Real Property or the Building, or of the
Lessor, or of any Mortgagee in possession of the Real Property or the Building,
to attorn, from time to time, to any such owner, Lessor or Mortgagee or any
person acquiring the interest of Landlord as a result of any such termination,
or as a result of a foreclosure of the Mortgage or the granting of a deed in
lieu of foreclosure, upon the then executory terms and conditions of this
Lease, subject to the provisions of Section 7.1 hereof and this Section 7.2,
for the remainder of the Term, provided that such owner, Lessor or Mortgagee,
or receiver caused to be appointed by any of the foregoing, as the case may be,
shall then be entitled to possession of the Premises and provided further that
such owner, Lessor or Mortgagee, as the case may be, or anyone claiming by,
through or under such owner, Lessor or Mortgagee, as the case may be, including
a purchaser at a foreclosure sale, shall not be:


                    (A)
liable for any act or omission of any prior landlord (including, without
limitation, the then defaulting landlord), except for those that are
continuing, or


                    (B)
subject to any defense or offsets which Tenant may have against any prior
landlord (including, without limitation, the then defaulting landlord), except
for those expressly provided for in this Lease, or


                    (C)
bound by any payment of Rental which Tenant may have made to any prior landlord
(including, without limitation, the then defaulting landlord) more than thirty
(30) days in advance of the date upon which such payment was due, or


                    (D)
bound by any obligation to make any payment to or on behalf of Tenant, except
as expressly provided in this Lease, or


                    (E)
bound by any obligation to perform any work or to make improvements to the
Premises, except for (i) repairs and maintenance pursuant to the provisions of
Article 4, (ii) repairs to the Premises or any part thereof as a result of
damage by fire or other casualty pursuant to Article 10 hereof, but only to the
extent that such repairs can be reasonably made from the net proceeds of any
insurance actually made available to such owner, Lessor or Mortgagee, (iii)
repairs to the Premises as a result of a partial condemnation pursuant to
Article 11 hereof, or


                    (F)
bound by any amendment or modification of this Lease made without its consent,
except for a modification contemplated by Section 1.1 and Articles 39, 40 and
41, or


26





                    (G)
bound to return Tenant’s security deposit, if any, until such deposit has come
into its actual possession and Tenant would be entitled to such security
deposit pursuant to the terms of this Lease.


The provisions of this Section 7.2 shall enure to the benefit of any
such owner, Lessor or Mortgagee, shall apply notwithstanding that, as a matter
of law, this Lease may terminate upon the termination of any Superior Lease,
shall be self-operative upon any such demand, and no further instrument shall
be required to give effect to said provisions except as otherwise provided in
this Article 7. Tenant, however, upon demand of any such owner, Lessor or
Mortgagee, shall execute, at Tenant’s expense, from time to time, instruments,
in recordable form, to confirmation of the foregoing provisions of this Section
7.2, satisfactory to such owner, Lessor or Mortgagee, acknowledging such attornment
and setting forth the terms and conditions of its tenancy. Nothing contained in
this Section 7.2 shall be construed to impair any right otherwise exercisable
by any such owner, Lessor or Mortgagee.


          Section
7.3 From time to time, within ten (10) Business Days next following request
by Landlord, any Mortgagee or any Lessor, Tenant shall deliver to Landlord,
such Mortgagee or such Lessor an estoppel certificate executed by Tenant, in
form satisfactory to Landlord, such Mortgagee or such Lessor, (1) stating that
this Lease is then in full force and effect and has not been modified (or if
modified, setting forth all modifications), (2) setting forth the date to which
the Fixed Rent, Escalation Rent and other items of Rental have been paid, (3) stating
whether or not, to the best knowledge of Tenant, Landlord is in default under
this Lease, and, if Landlord is in default, setting forth the specific nature
of all such known defaults, and (4) as to any other matters reasonably
requested by Landlord, such Mortgagee or such Lessor. Tenant acknowledges that
any estoppel certificate delivered pursuant to this Section 7.3 may be relied
upon by any purchaser or owner of the Real Property or the Building, or
Landlord’s interest in the Real Property or the Building or any Superior Lease,
or by any Mortgagee, or by an assignee of any Mortgagee, or by any Lessor. From
time to time, within ten (10) Business Days next following a request by Tenant,
Landlord shall deliver to Tenant an estoppel certificate duly executed by or on
behalf Landlord (1) stating that this Lease is then in full force and effect
and has not been modified (or if modified, setting forth all modifications),
(2) setting forth the date to which the Fixed Rent, Escalation Rent and other
items of Rental have been paid, (3) stating whether or not, to the best
knowledge of the person executing such estoppel certificate on behalf of
Landlord, Tenant is in default under this Lease, and, if Tenant is in default,
setting forth the specific nature of all such known defaults, and (4) as to any
other matters reasonably requested by Tenant. Any subtenant or assignee of
Tenant’s interest in this Lease, and any purchaser of Tenant’s assets or stock
or other beneficial interests in Tenant shall be entitled to rely on such
estoppel certificate.


          Section
7.4 As long as any Superior Lease or Mortgage shall exist, Tenant shall not
seek to terminate this Lease by reason of any act or omission of Landlord until
Tenant shall have given written notice of such act or omission to Landlord and
to all Lessors and Mortgagees at such addresses as shall have been furnished to
Tenant by such Lessors and Mortgagees and, if any such Lessor or Mortgagee, as
the case may be, shall have notified Tenant in writing within ten (10) Business
Days following receipt of such notice of Lessor’s or Mortgagee’s intention to
remedy such act or omission, until the date that is ten (10) days after the
giving of such notice to


27





Tenant if such act or omission can be remedied by the payment of money
or the date that is thirty (30) days after the giving of such notice to Tenant
if such act or omission cannot be remedied by the payment of money, during
which period such Lessors and Mortgagees shall have the right, but not the
obligation, to remedy such act or omission. Notices required to be delivered by
Tenant under this Section to such Lessors and Mortgagees shall be delivered as
follows:


	
  

 	
  

 
	
  

 	
 Landesbank
 Hessen-Thuringen Girozentrale

 
	
  

 	
 420 Fifth
 Avenue

 
	
  

 	
 New York, NY
 10018-2729

 
	
  

 	
 Attention:
 Real Estate Finance

 


Landlord may change by written notice to Tenant the names and addresses
of the parties to whom notice shall be delivered under this Section 7.4.


          Section
7.5 (A) Landlord shall, at Landlord’s sole cost and expense, obtain and deliver
to Tenant simultaneously with the execution of this Lease, a subordination, non-disturbance
and attornment agreement (“SNDA”) in recordable form from the Lessor of any
existing Superior Lease and the holder of each existing Mortgage encumbering
the Building. Such SNDA shall be substantially in the form and substance
annexed as Exhibit D and shall provide, in substance, that, so long as Tenant
is not then in default in its obligations for the payment of Fixed Rent and
Additional Rent or in the performance of the other terms, covenants and
conditions to be performed on its part under the Lease beyond all applicable
notice and grace periods, Tenant’s possession of the Premises will not be
disturbed during the Term hereof, notwithstanding the foreclosure of such
Mortgage and/or termination of any such future Superior Lease or the exercise
of any other remedy thereunder or at law, and Tenant will not be named as a
party defendant in any such foreclosure proceedings brought for the recovery of
possession. The Mortgagee, or anyone claiming by, through or under said
Mortgagee shall not, however, be: liable for any previous act or omission of
Landlord under the Lease, or any claim which shall have previously accrued to
Tenant against any prior Landlord except for those that are continuing; or
bound by any prepayment to any prior Landlord of more than one month’s Fixed
Rent or Additional Rent; or subject to any offsets, claims, defenses, or
counterclaims which Tenant might have against any prior Landlord except those
expressly provided for in this Lease. Tenant agrees to execute and deliver to
such Lessor and/or Mortgagee any such SNDA; and Tenant’s failure to so execute
and deliver the same within thirty (30) days after request thereof shall be
deemed a waiver of all of Tenant’s rights under this Section 7.5.


                    (B)
With respect to any future Mortgage and/or Superior Lease covering the Real
Property, as a condition precedent to Tenant being subordinate to such future
Mortgage and/or Superior Lease, as the case may be, Landlord will deliver to
Tenant an SNDA from such future Mortgagee, or Lessor, in the form then
customarily used by such future Mortgagee or Lessor, to the extent that such
form is not materially inconsistent with the corresponding provisions of this
Lease and provided such form is commercially reasonable. Landlord and Tenant
agree that the form of SNDA annexed as Exhibit D to this Lease is an
example of a commercially reasonable form. Landlord shall pay any fees and
charges charged by such Mortgagee or Lessor in connection with the delivery of
such SNDA to Tenant. Tenant shall pay


28





any legal fees
and charges it incurs by retaining its attorneys in connection with the review,
negotiation and delivery of such SNDA.


          Section
7.6 Tenant hereby irrevocably waives any and all right(s) it may have in
connection with any zoning lot merger or transfer of development rights with
respect to the Real Property including, without limitation, any rights it may
have to be a party to, to contest, or to execute, any Declaration of
Restrictions (as such term is used in Section 12-10 of the Zoning Resolution of
The City of New York effective December 15, 1961, as amended) with respect to
the Real Property, which would cause the Premises to be merged with or unmerged
from any other zoning lot pursuant to such Zoning Resolution or to any document
of a similar nature and purpose; and Tenant agrees that 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 Real Property
provided Landlord delivers to Tenant an SNDA substantially in the form annexed
as Exhibit D. In confirmation of such subordination and waiver, Tenant
shall execute and deliver promptly any certificate or instrument that Landlord
may reasonably request provided Landlord delivers an SNDA which conforms to the
requirements set forth in the immediately preceding sentence.


ARTICLE 8


RULES AND REGULATIONS


          Tenant and
Tenant’s contractors, employees, agents and licensees shall comply with the
Rules and Regulations. Nothing in this Lease contained shall be construed to
impose upon Landlord any duty or obligation to enforce the Rules and
Regulations or terms, covenants or conditions in any other lease against any
other tenant; and Landlord shall not be liable to Tenant for violation of the
same by any other tenant, its employees, agents, visitors or licensees;
provided, however, that Landlord shall endeavor to enforce the Rules and Regulations
against other tenants and occupants of the Building if such tenants or
occupants are violating such Rules and Regulations and such violations
materially interfere with or disturb Tenant’s possession of the Premises or the
conduct of its business therein during the Term. Nothing herein shall be
construed to give Tenant or any other Person any claim, demand or cause of
action against Landlord, arising out of the violation of such Rules by any
other tenant or visitor of the Property or the Building, or out of the
enforcement, modification or waiver of the Rules by Landlord in any particular
instance. Landlord shall not enforce the Rules against Tenant in a
discriminatory manner.


ARTICLE 9


INSURANCE, PROPERTY LOSS OR DAMAGE;
REIMBURSEMENT


          Section
9.1 (A) Any Building employee to whom any property shall be entrusted by or
on behalf of Tenant shall be deemed to be acting as Tenant’s agent with respect
to such property and neither Landlord nor its agents shall be liable for any
damage to property of Tenant or of others entrusted to employees of the
Building, nor for the loss of or damage to any property of Tenant by theft or
otherwise. Neither Landlord nor its agents shall be liable for any injury (or
death) to persons or damage to property, or interruption of Tenant’s business,
resulting from fire


29





or other casualty; nor shall Landlord or its agents be liable for any
such injury (or death) to persons or damage caused by other tenants or persons
to the Building or caused by construction of any private, public or
quasi-public work, nor shall Landlord be liable for any injury (or death) to
persons or damage to property or improvements, or interruption of Tenant’s
business, resulting from any latent defect in the Premises or in the Building.


                    (B)
If at any time any windows of the Premises are temporarily
closed, darkened or bricked-up due to any Requirements or by reason of repairs,
maintenance, alterations, or improvements to the Building, or any of such
windows are permanently closed, darkened or bricked-up due to any Requirements,
Landlord shall not be liable for any damage Tenant may sustain thereby and
Tenant shall not be entitled to any compensation therefor, nor abatement or
diminution of Fixed Rent or any other item of Rental, nor shall the same
release Tenant from its obligations hereunder, nor constitute an actual or
constructive eviction, in whole or in part, by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant’s business, or
otherwise, nor impose any liability upon Landlord or its agents. If at any time
the windows of the Premises are temporarily closed, darkened or bricked-up, as
aforesaid, then, unless Tenant is required pursuant to the Lease to perform the
repairs, maintenance, alterations, or improvements, or to comply with the
Requirements, which resulted in such windows being closed, darkened or
bricked-up, Landlord shall perform such repairs, maintenance, alterations or
improvements and comply with the applicable Requirements with diligence and
otherwise take such action as may be necessary to minimize the period during
which such windows are temporarily closed, darkened, or bricked-up.


                    (C)
Tenant shall promptly notify Landlord of any fire, damage or
accident in the Premises after Tenant learns of such event.


          Section
9.2 Tenant shall obtain and keep in full force and effect during the entire
Term hereof, commencing on the Commencement Date, insurance with terms,
coverages and in companies reasonably satisfactory to Landlord, and with such
changes in insured parties as Landlord may from time to time request, but
initially Tenant shall maintain the following coverages in the following
amounts: (i) “all-risk” property insurance (including extra expense insurance)
insuring the full replacement value of all Alterations (including, without
limitation, the Initial Alterations and any Specialty Alterations) and all
other improvements, betterments, fixtures and personal property installed by or
on behalf of Tenant in the Premises, and of any Alterations, additions or
improvements which Landlord requires Tenant to insure in accordance with
Article 3; and a policy of insurance against loss or damage to the major
components of any air conditioning and/or heating system, steam pipes, and
other pressure vessels, high pressure piping and machinery, if any, such as are
installed by or on behalf of Tenant in the Premises, (ii) commercial general
liability insurance with the broad form commercial liability endorsement, including
contractual liability insurance covering Tenant’s indemnity obligations
hereunder, insuring against claims for death, bodily injury, personal injury
and property damage occurring upon, in or about the Premises in an amount not
less than $5,000,000.00 per occurrence and having a general aggregate amount on
a per location basis of not less than $5,000,000.00, which amount shall be
increased from time to time to that amount of insurance which in Landlord’s
reasonable judgment is then being customarily required by prudent landlords of
first class (Class A) buildings in New York City, (iii) Workers’ Compensation
and Employers’ Liability insurance


30





in statutory limits, and (iv) such other insurance coverages as
Landlord may reasonably request provided same is then being customarily
required by prudent landlords of first class (Class A) buildings in New York
City. Such policies shall provide that Tenant is named as the insured; and that
Landlord, Landlord’s managing agent, and any Lessors and any Mortgagees (whose
names shall have been furnished to Tenant), shall be added as additional
insureds, as their respective interests may appear, with respect to the
insurance required to be carried above; except that, the proceeds of policies
providing “all-risk” property insurance under subparagraph (i) of this Section
9.2, shall be payable to Landlord, to be applied in accordance with the
provisions of Article 10 of this Lease. In addition, such policy with respect
to clause (ii) above shall include: (A) a provision under which the insurer
agrees to indemnify, defend and hold Landlord, Landlord’s managing agent, and
such Lessors and Mortgagees harmless from and against all cost, expense and
liability arising out of, or based upon, any and all claims, accidents, injuries
and damages described in Section 35.1; and (B) a provision that no act or
omission of Tenant shall affect or limit the obligation of the insurer to pay
the amount of any loss sustained. All insurance required to be carried by
Tenant pursuant to the terms of this Lease shall be effected under valid and
enforceable policies issued by reputable and independent insurers permitted to
do business in the State of New York, and rated to Best’s Insurance Guide, or
any successor thereto (or if there be none, an organization having a national
reputation) as having a general policyholder rating of “A” and a financial
rating of at least “X”. The all-risk property insurance coverage
required to be carried by Tenant under clause (i) of this Section 9.2 on its
leasehold improvements and betterments shall not provide for an exclusion for
acts of terrorism during calendar year 2006. Additionally, such all-risk
property insurance shall not provide for an exclusion for acts of terrorism at
any time thereafter during the Term of this Lease, so long as such insurance
without an exclusion for acts of terrorism shall be available on a commercially
reasonable basis.


          Section
9.3 Tenant shall, prior to the Commencement Date and not less than ten (10)
Business Days prior to the expiration of any such policy, furnish to Landlord
duly executed duplicate certificates of insurance evidencing the foregoing
insurance coverages. Tenant’s policies shall state that such insurance coverage
may not be cancelled or not renewed without at least ten (10) Business Days’
prior written notice to Landlord and Tenant; and shall further provide that the
policy shall not be invalidated should the insured party have waived in writing
prior to a loss any and all rights of the insured party against any other party
for losses covered by such policy. In addition, upon receipt by Tenant of any
notice of cancellation or any other notice from the insurance carrier which may
adversely affect the coverage of the insureds under such policy of insurance, Tenant
shall promptly deliver to Landlord and any other additional insured hereunder a
copy of such notice.


          Section
9.4 Landlord and Tenant each agree to have all property or physical damage
insurance which it may carry endorsed with a clause providing that any release
from liability of or waiver of claim for recovery from the other party or any
of the additional insureds named in Section 9.2 above or entered into in
writing by the insured thereunder prior to any loss or damage shall not affect
the validity of said policy or the right of the insured to recover thereunder.
Tenant’s policy shall provide further that the insurer waives all rights of
subrogation which such insurer might have against any Landlord Indemnitees
(and, if in a separate writing, Landlord shall permit Tenant to self-insure any
of the perils described in Section 9.2, the aforementioned


31





waiver of subrogation shall be applicable to all perils which Tenant is
permitted to self-insure hereunder). Each of Landlord and Tenant further agrees
to first seek recovery under its applicable insurance policy before proceeding
against the other party. Notwithstanding the foregoing or anything contained in
this Lease to the contrary, any release or waiver of claims shall not be
operative, nor shall the foregoing endorsements be required, in any case where
the effect of such release or waiver is to invalidate insurance coverage or
invalidate the right of the insured to recover thereunder or increase the cost
thereof (provided that in the case of increased cost the other party shall have
the right, within ten (10) days following written notice, to pay such increased
cost, thereby keeping such release or waiver in full force and effect).


          Section
9.5 Landlord shall carry during the Term hereof “all-risk” property
insurance covering its interest in the Building, excluding Tenant’s Alterations
(including, without limitation, the Initial Alterations and any Specialty
Alterations) and further excluding all other improvements, betterments and fixtures
installed by or on behalf of Tenant, and all other items of Tenant’s Property,
against fire and other extended coverage perils in an amount equal to the full
replacement value thereof (exclusive of foundations and footings and tenant
improvements and betterments) to the extent such insurance is normally carried
by prudent owners of similar buildings located in Manhattan below 42nd Street.
Tenant acknowledges that Landlord shall not carry insurance on, and shall not
be responsible for damage to, Tenant’s Property, the Initial Alterations or any
other Alterations made by Tenant, and that Landlord shall not carry insurance
against, or be responsible for any loss suffered by Tenant due to, interruption
of Tenant’s business. Landlord shall additionally carry during the Term not
less than $20,000,000.00 of commercial general liability insurance, written on
an occurrence basis, and during the Term such additional amounts as shall
afford protection in an amount which is not less than that which is customarily
carried by institutional owners of Comparable Buildings. Landlord represents to
Tenant that, as of the date of this Lease, Landlord carries “all-risk” property
insurance for full replacement value (exclusive of foundations and footings and
tenant improvements and betterments) which does not exclude acts of terrorism;
and Landlord agrees to carry such insurance at all times during calendar year
2006, and thereafter, to the extent such insurance is then carried by owners of
Comparable Buildings and available on a commercially reasonable basis.


ARTICLE 10


DESTRUCTION-FIRE OR OTHER CAUSE


          Section
10.1 (A) If the Premises shall be damaged by fire or other casualty, the
damage, with such modifications as shall be required in order to comply with
Requirements shall be diligently repaired by and at the expense of Landlord
(subject to Landlord’s receipt of the proceeds of Tenant’s “all-risk” property
insurance as herein provided) to substantially the condition prior to the
damage. The proceeds of “all-risk” property insurance policies providing
coverage for Tenant’s Alterations (including, without limitation, the Initial
Alterations) and Tenant’s other improvements, betterments and fixtures shall be
paid to Landlord, except to the extent hereinafter expressly provided to the
contrary. Concurrently with the collection of any property insurance proceeds,
as aforesaid, Tenant shall pay to Landlord (i) the amount of any deductible
under such policy insuring Tenant’s Alterations (including, without limitation,
the


32





Initial Alterations) and Tenant’s other improvements, betterments and
fixtures; and (ii) the amount, if any, by which the cost of repairing and
restoring Tenant’s Alterations (including, without limitation, the Initial
Alterations) and Tenant’s other improvements, betterments and fixtures, as
estimated by an independent reputable contractor designated by Landlord,
exceeds the available insurance proceeds therefor. The amounts due in
accordance with the immediately preceding subparagraphs (i) and (ii) shall be
Additional Rent under this Lease; and shall be payable by Tenant to Landlord
within thirty (30) days after demand therefor is made by Landlord accompanied
by the contractor’s estimate referred to in the preceding subparagraph (ii),
but subject to Sections 10.3 and 10.4. Until such repairs which are required to
be performed by Landlord (excluding Long Lead Work) shall be substantially
completed (of which substantial completion Landlord shall promptly notify
Tenant) the Fixed Rent and Escalation Rent shall be reduced in the proportion
which the area of the part of the Premises which is not usable by Tenant, as
determined by Landlord in its reasonable discretion, bears to the total area of
the Premises immediately prior to such casualty and, during such period,
Tenant’s Share and Tenant’s Tax Share shall each be redetermined based upon the
proportion in which the rentable area of the Premises usable after such
casualty bears to the rentable area of the Premises immediately prior to such
casualty. If Tenant disagrees with Landlord’s determination of the abatement of
Rent to which Tenant shall be entitled in connection with a fire or other
casualty under this Article, Landlord or Tenant may submit such issue to
arbitration pursuant to the provisions of Section 38.7 of this Lease within
sixty (60) days from the date of Landlord’s determination (provided, however,
that in such event Tenant shall abide by Landlord’s determination and perform
all other obligations under this Article in accordance with Landlord’s determination,
subject to refund or credit when the matter is resolved by arbitration or by
mutual agreement). If Tenant obtains an arbitration decision that Landlord was
obligated to abate Rent in excess of that abated as a result of Landlord’s
determination, Landlord shall within ten (10) Business Days of such decision
permit the abatement of such additional Rent, together with interest at the
Applicable Rate on the amount of Rent so abated calculated from the date that
such Rent should have been abated. Upon the substantial completion of such
repairs (excluding Long Lead Work), Landlord shall diligently prosecute to
completion any items of Long Lead Work remaining to be completed. Landlord
shall have no obligation to repair any damage to, or to replace, all or any
portion of Tenant’s Property, which Tenant shall complete promptly after
substantial completion of Landlord’s repair obligations under this Article 10.
In addition, Landlord shall not be obligated to repair any damage to, or to
replace, any Alterations (including, without limitation, the Initial
Alterations) unless Tenant shall have previously delivered to Landlord “as
built” plans and specifications for the Initial Alterations and all other
Alterations. Landlord shall use its reasonable efforts to minimize interference
with Tenant’s use and occupancy in making any repairs pursuant to this Lease.
Anything contained herein to the contrary notwithstanding, if the Premises are
damaged by fire or other casualty at any time prior to the completion of the
Initial Alterations, Landlord’s obligation to repair the Premises and any
Alterations shall be limited to repair of the part of the Building Systems
serving the Premises on the Commencement Date (but not the distribution
portions of such Building Systems located within the Premises), the floor and
ceiling slabs of the Premises and the exterior walls of the Premises, all to
substantially the same condition which existed on the Commencement Date, with
such modifications as shall be required in order to comply with Requirements.
Tenant and Landlord shall mutually cooperate in connection with the collection
of any insurance monies that may be due in the event of loss resulting from a
fire or other casualty, and both parties shall


33





execute and deliver such proofs of loss and other instruments which may
be required to recover any such insurance monies.


                    (B)
Prior to the substantial completion of Landlord’s repair obligations set forth
in Section 10.1(A) hereof, Landlord shall provide Tenant and Tenant’s
contractor, subcontractors and materialmen access to the Premises to perform
Alterations, if Landlord is not obligated to repair same pursuant to the
provisions hereof, on the following terms and conditions (but not to occupy the
same for the conduct of business):


                              (1)
Tenant shall not commence work in any portion of the Premises until the date
specified in a notice from Landlord to Tenant stating that the repairs required
to be made by Landlord have been or will be completed to the extent reasonably
necessary, in Landlord’s discretion, to permit the commencement of any work by
Tenant, which may then be prudently performed in accordance with good
construction practice in the portion of the Premises in question without
interference with, and consistent with the performance of, the work remaining
to be performed by Landlord.


                              (2)
Such access by Tenant shall be deemed to be subject to all of the applicable
provisions of this Lease, including, without limitation, Tenant’s obligation to
pay to Landlord an amount equal to the Electricity Additional Rent, or if
applicable, the Electricity Inclusion Factor, except that there shall be no
obligation on the part of Tenant solely because of such access to pay any Fixed
Rent or Escalation Rent with respect to the affected portion of the Premises
for any period prior to substantial completion of the repairs.


                    (C)
It is expressly understood that if Landlord shall be delayed from substantially
completing the repairs due to any acts of Tenant, its agents, servants,
employees or contractors, including, without limitation, by reason of Tenant’s
failure or refusal to comply, or to cause its architects, engineers, designers
and contractors to comply with any of Tenant’s obligations described or
referred to in this Lease, then such repairs shall be deemed substantially
complete on the date when the repairs would have been substantially complete
but for such delay and the expiration of the abatement of the Tenant’s
obligations hereunder shall not be postponed by reason of such delay. Any
additional costs to Landlord to complete any repairs occasioned by such delay
shall be paid by Tenant to Landlord within thirty (30) days after demand, as
additional rent.


          Section
10.2 Anything contained to Section 10.1 hereof to the contrary
notwithstanding, if the Building shall be so damaged by fire or other casualty
that, in Landlord’s opinion, substantial alteration, demolition, or
reconstruction of the Building shall be required (whether or not the Premises
shall have been damaged or rendered untenantable), and restoration will take
more than one (1) year to substantially complete, and Landlord shall give
office tenants leasing more than seventy-five percent (75%) of the rentable
area of the Building notices terminating their respective leases, then
Landlord, at Landlord’s option, may, not later than ninety (90) days following
the damage, give Tenant a notice in writing terminating this Lease. If Landlord
elects to terminate this Lease, the Term shall expire upon a date set by
Landlord, but not sooner than the sixtieth (60th) day, and not later
than the one hundred twentieth (120th) day, after such notice is given, and
Tenant shall vacate the Premises and surrender the same to


34





Landlord in accordance with the provisions of Article 20 hereof. Unless
Landlord shall serve a termination notice as provided for herein, Landlord
shall make the repairs and restorations to the Premises (including all Alterations
existing as of the date preceding such fire or other casualty) in accordance
with and subject to the conditions of this Article 10, with all reasonable
expedition. If Tenant shall dispute Landlord’s determination that the Premises
are ready for Tenant’s occupancy, Tenant may initiate an arbitration proceeding
in accordance with the provisions of Section 38.7 of this Lease.


          Section
10.3 (A) Within ninety (90) days after Landlord learns of any damage
described in Section 10.1 hereof, Landlord shall deliver to Tenant a statement
prepared by a reputable independent contractor setting forth such contractor’s
estimate as to the time required to repair such damage, exclusive of the time
required to perform Long Lead Work. If the estimated time period exceeds twelve
(12) months from the date of such damage, Tenant may elect to terminate this
Lease by notice to Landlord not later than forty-five (45) days following
receipt of such statement. If Tenant makes such election, the Term shall expire
upon the ninetieth (90th) day after notice of such election is given by Tenant,
and Tenant shall vacate the Premises and surrender the same to Landlord in
accordance with the provisions of Article 20 hereof. If Tenant shall not have
elected to terminate this Lease pursuant to this Article 10 (or is not entitled
to terminate this Lease pursuant to this Article 10), the damage shall be
diligently repaired by and at the expense of Landlord as set forth in Section
10.1 hereof. Additionally, Tenant may terminate this Lease on no less than
thirty (30) days prior notice to Landlord if Landlord has not substantially
completed the making of the required repairs and restorations to the Premises
within twelve (12) months after the date of such damage, or within such period
after such date (not exceeding thirty (30) days) as shall equal the aggregate
period Landlord may have been delayed in doing so by Unavoidable Delays; and
unless the restoration shall have been substantially completed on or before the
expiration of such thirty (30) days, this Lease will terminate at the
expiration of such thirty (30) days as if that were the Expiration Date
originally set forth in the Lease; provided, however, that if the contractor’s
estimate as to the time required to repair such damage shall be a date
occurring after the expiration of twelve (12) months from the date of such
estimate, and Tenant shall not have exercised its termination right under this
Section hereof, then such twelve (12) month restoration and repair period shall
be extended until the date specified in such contractor’s estimate and if
Landlord has not substantially completed the making of the required repairs and
restorations to the Premises by such extended date, Tenant may terminate this
Lease on no less than thirty (30) days prior notice to Landlord.


                    (B)
Notwithstanding the foregoing, if the Premises shall be substantially damaged
during the last year of the Term, Tenant may elect by notice, given within
thirty (30) days after the occurrence of such damage, to terminate this Lease
and if Tenant makes such election, the Term shall expire upon the thirtieth
(30th) day after notice of such election is given by Tenant and Tenant shall
vacate the Premises and surrender the same to Landlord in accordance with the
provisions of Article 20 hereof.


                    (C)
Except as expressly set forth in this Section 10.3, Tenant shall have no other
options to cancel this Lease under this Article 10.


                    (D)
Upon the termination of this Lease under the conditions provided for in this
Section 10.3, the Fixed Rent and Escalation Rent shall be apportioned and any
prepaid


35





portion of Fixed Rent and Escalation Rent for any period after such
date shall be promptly refunded by Landlord to Tenant.


          Section
10.4 Upon the termination of this Lease under the conditions provided for
in Section 10.2 or Section 10.3, Fixed Rent and Escalation Rent shall be
apportioned, any prepaid portion of Fixed Rent and Escalation Rent for any
period after such date shall be promptly refunded by Landlord to Tenant, and
Tenant may retain all of the proceeds of “all-risk” property insurance
providing coverage for Tenant’s Alterations which have not been applied to the
restoration of the Premises prior to the termination of this Lease.


          Section
10.5 This Article 10 constitutes an express agreement governing any case of
damage or destruction of the Premises or the Building by fire or other
casualty, and Section 227 of the Real Property Law of the State of New York,
which provides for such contingency in the absence of an express agreement, and
any other law of like nature and purpose now or hereafter in force shall have
no application in any such case.


ARTICLE 11


EMINENT DOMAIN


          Section
11.1 If the whole of the Real Property, the Building or the Premises shall
be acquired or condemned for any public or quasi-public use or purpose, this
Lease and the Term shall end as of the date of the vesting of title with the
same effect as if said date were the Expiration Date. If only a part of the
Real Property and not the entire Premises shall be so acquired or condemned
then, (1) except as hereinafter provided in this Section 11.1, this Lease and
the Term shall continue in force and effect, but, if a part of the Premises is
included in the part of the Real Property so acquired or condemned, from and
after the date of the vesting of title, the Fixed Rent shall be reduced to the
proportion which the area of the part of the Premises so acquired or condemned
bears to the total area of the Premises immediately prior to such acquisition
or condemnation and Tenant’s Share and Tenant’s Tax Share shall each be
redetermined based upon the proportion in which the ratio between the rentable
area of the Premises remaining after such acquisition or condemnation bears to
the rentable area of the Building remaining after such acquisition or
condemnation, (2) if the part of the Real Property acquired or condemned shall
be a material part and Landlord is not able to operate the remainder of the
Building in an economic manner, then whether or not the Premises shall be
affected thereby, Landlord, at Landlord’s option, may give to Tenant, within
sixty (60) days next following the date upon which Landlord shall have received
notice of vesting of title, a thirty (30) days’ notice of termination of this
Lease if Landlord shall elect to terminate leases (including this Lease),
affecting at least seventy-five percent (75%) of the rentable area of the
Building (excluding any rentable area leased by Landlord or its Affiliates);
and (3) if the part of the Real Property so acquired or condemned shall contain
more than twenty-five percent (25%) of the total area of the Premises
immediately prior to such acquisition or condemnation of the Real Property, or
if, by reason of such acquisition or condemnation, Tenant no longer has
reasonable means of access to the Premises, Tenant, at Tenant’s option, may
give to Landlord, within sixty (60) days next following the date upon which
Tenant shall have received notice of vesting of title, a thirty (30) days’
notice of termination of this Lease. If any such thirty (30)


36





days’ notice of termination is given by Landlord or Tenant, this Lease
and the Term shall come to an end and expire upon the expiration of said thirty
(30) days with the same effect as if the date of expiration of said thirty (30)
days were the Expiration Date. If a part of the Premises shall be so acquired
or condemned and this Lease and the Term shall not be terminated pursuant to
the foregoing provisions of this Section 11.1, Landlord, at Landlord’s expense,
shall restore that part of the Premises not so acquired or condemned to a
self-contained rental unit inclusive of Tenant’s Alterations. Upon the
termination of this Lease and the Term pursuant to the provisions of this
Section 11.1, the Fixed Rent and Escalation Rent shall be apportioned and any
prepaid portion of Fixed Rent and Escalation Rent for any period after such
date shall be promptly refunded by Landlord to Tenant.


          Section
11.2 In the event of any such acquisition or condemnation of all or any
part of the Real Property, Landlord shall be entitled to receive the entire
award for any such acquisition or condemnation, Tenant shall have no claim
against Landlord or the condemning authority for the value of any unexpired
portion of the Term and Tenant hereby expressly assigns to Landlord all of its
right in and to any such award. Nothing contained in this Section 11.2 shall be
deemed to prevent Tenant from making a separate claim in any condemnation
proceedings for the then value of any Tenant’s Property included in such
taking, and for any moving expenses.


          Section
11.3 If the whole or any part of the Premises shall be acquired or
condemned for a temporary period of twelve (12) months or less during the Term
for any public or quasi-public use or purpose, Tenant shall give prompt notice
thereof to Landlord and the Term shall not be reduced or affected in any way
and Tenant shall continue to pay in full all items of Rental payable by Tenant
hereunder without reduction or abatement, and Tenant shall be entitled to
receive for itself any award or payments for such use, provided, however, that
if the acquisition or condemnation is for a period extending beyond the Term,
any lump sum award or payment shall be apportioned between Landlord and Tenant
as of the Expiration Date, and provided further that the amount of any award or
payment allowed by the condemning authority for restoration of the Premises
shall remain the property of Landlord if this Lease shall expire prior to the
restoration of the Premises.


ARTICLE 12


ASSIGNMENT, SUBLETTING, MORTGAGE, ETC.


          Section
12.1 Except as otherwise provided in this Article 12, Tenant shall not (a)
assign this Lease (whether by operation of law, direct or indirect transfers of
interests in Tenant or otherwise, howsoever accomplished); or (b) mortgage or
encumber Tenant’s interest in this Lease, in whole or in part; or (c) sublet,
or permit the subletting of, the Premises or any part thereof; or (d) permit
the Premises or any part thereof to be occupied or used for desk space, mailing
privileges or otherwise by any person other than Tenant. Tenant shall not, in
any advertisement for a subtenant or assignee, quote a rental rate lower than
the rental rate then being paid by Tenant to Landlord, without in each
instance, obtaining the prior written consent of Landlord.


37





          Section
12.2 If Tenant’s interest in this Lease shall be assigned in violation of
the provisions of this Article 12, such assignment shall be invalid and of no
force and effect against Landlord; provided, however, that Landlord may collect
an amount equal to the then Fixed Rent plus any other item of Rental from such
assignee as a fee for its use and occupancy. If the Premises or any part
thereof are sublet to, or occupied by, or used by, any Person other than
Tenant, whether or not in violation of this Article 12, Landlord, after default
by Tenant beyond all applicable notice and grace periods under this Lease, may
collect any item of Rental or other sums paid by the subtenant, user or
occupant as a fee for its use and occupancy, and shall apply the net amount
collected to the Fixed Rent and the items of Rental reserved in this Lease. No
such assignment, subletting, occupancy, or use, whether with or without
Landlord’s prior consent, nor any such collection or application of Rental or
fee for use and occupancy, shall be deemed a waiver by Landlord of any term,
covenant or condition of this Lease or the acceptance by Landlord of such
assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same,
in any circumstances, relieve Tenant of any of its obligations under this
Lease. The consent by Landlord to any assignment, subletting, occupancy or use
shall not relieve Tenant from its obligation to obtain the express prior
consent of Landlord to any further assignment, subletting, occupancy or use,
which consent shall be given or withheld in accordance with the provisions of
this Lease as if Tenant were making the request. Any person to which this Lease
is assigned with Landlord’s consent shall be deemed, without more to have
assumed all of the obligations arising under this Lease from and after the date
of such assignment and shall execute and deliver to Landlord, upon demand, an
instrument confirming such assumption. Notwithstanding and subsequent to any
assignment, Tenant’s primary liability hereunder shall continue notwithstanding
(a) any subsequent amendment hereof, or (b) Landlord’s forbearance in enforcing
against Tenant any obligation or liability, without notice to Tenant, to all of
which Tenant hereby consents in advance. If any such amendment operates to
increase the obligations of Tenant under this Lease, the liability under this
Section 12.2 of the assigning Tenant shall continue to be no greater than if
such amendment had not been made (unless such party shall have expressly
consented in writing to such amendment).


          Section
12.3 (A) For purposes of this Article 12, (i) the sale or transfer of stock
of the Tenant named in this lease shall not be deemed an assignment of this
Lease provided such transfer is in furtherance of a good business purpose,
provided however, that, other than with respect to the Tenant named in this
Lease or a successor entity, the sale or transfer of a majority of the issued
and outstanding capital stock of any corporate tenant, or of a corporate
subtenant, or the transfer of a majority of the total interest in any
partnership tenant or subtenant, or the transfer of control in any general or
limited liability partnership tenant or subtenant, or the transfer of a
majority of the issued and outstanding membership interests in a limited
liability company tenant or subtenant, however accomplished, whether in a
single transaction or in a series of related or unrelated transactions, shall
be deemed an assignment of this Lease, or of such sublease, as the case may be,
except that the transfer of the outstanding capital stock of any corporate
tenant, or subtenant, shall be deemed not to include the sale of such stock by
persons or parties, other than those deemed “affiliates” of Tenant within the
meaning of Rule 144 promulgated under the Securities Act of 1933, as amended,
through the “over-the-counter market” or through any recognized stock exchange,
(ii) other than with respect to the stock of the Tenant named in this Lease
provided such increase or issuance of stock or interests is in furtherance of a
good business purpose, any increase in the amount of issued and/or outstanding


38





capital stock of any corporate tenant, or of a corporate subtenant, or
of the issued and outstanding membership interests in a limited liability
company tenant or subtenant and/or the creation of one or more additional
classes of capital stock of any corporate tenant or any corporate subtenant, in
a single transaction or a series of related or unrelated transactions,
resulting in a change in the legal or beneficial ownership of such tenant or
subtenant so that the shareholders or members of such tenant or subtenant
existing immediately prior to such transaction or series of transactions shall
no longer own a majority of the issued and outstanding capital stock or
membership interests of such tenant or subtenant, shall be deemed an assignment
of this Lease, (iii) any person or legal representative of Tenant, to whom
Tenant’s interest under this Lease passes by operation of law, or otherwise,
shall be bound by the provisions of this Article 12, and (iv) a modification,
amendment or extension of a sublease shall be deemed a sublease. Tenant agrees
to furnish to Landlord within ten (10) Business Days after a request is made by
Landlord, such information and assurances as Landlord may reasonably request
that neither Tenant, nor any previously permitted subtenant, has violated the
provisions of this Article 12.


                    (B)
(1) The provisions of clauses (a), (c) and (d) of Section 12.1 shall not apply
to transactions with a corporation or limited liability company into or with
which Tenant is merged or consolidated or with a Person to which substantially
all of Tenant’s assets are transferred (provided such merger, consolidation or
transfer of assets is for a good business purpose and not principally for the
purpose of transferring the leasehold estate created by this Lease, and
provided further, that the assignee has a net worth at least equal to or in
excess of the net worth of Tenant as of the date immediately prior to such
merger, consolidation or transfer), or, if Tenant is a general, limited or
limited liability partnership, with a successor partnership, nor shall the
provisions of clauses (a), (c) and (d) of Section 12.1 apply to transactions
with an Affiliate of Tenant. Tenant shall have the right to enter into such
transactions without Landlord’s prior consent but upon prior notice to
Landlord. An Affiliate of Tenant shall have the right to use all or any portion
of the Premises without Landlord’s consent but with prior notice to Landlord.


                    (C)
The term “Control” or “control” as used in this Lease shall mean
the direct or indirect ownership of at least fifty percent (50%) of the
outstanding voting stock of a corporation or other majority equity and control
interest if not a corporation or the possession of power to direct or cause the
direction of the management and policy of such corporation or other entity,
whether through the ownership of voting securities, by statute or according to
the provisions of a contract.


          Section
12.4 (A) If Landlord shall not have exercised its rights pursuant to
paragraph (B) of this Section 12.4 within the immediately preceding two hundred
seventy (270) day period (which two hundred seventy (270) day period shall be
measured from the date on which Landlord declined, or waived (or was deemed to
waive) the exercise of its rights pursuant to paragraph (B) of this Section
12.4), Landlord shall not unreasonably withhold, condition or delay its consent
to a proposed specific subletting of the Premises, or a proposed specific
assignment of this Lease, provided that in each such instance, the following
requirements shall have been satisfied (if Tenant proposes a partial sublet,
references in this Section 12.4 to the Premises shall, unless the context
otherwise requires, refer to such portion):


39





                              (1)
in the case of a proposed subletting, the subletting shall not be advertised in
the print media at a lower rental rate than the rental rate being charged by
Landlord at the time for comparable space then available in the Building.;


                              (2)
no Event of Default shall have occurred and then be continuing;


                              (3)
the proposed subtenant or assignee shall have a financial standing, be engaged
in a business, and propose to use the Premises in a manner in keeping with the
standards in such respects of the other tenancies in the Building;


                              (4)
if Landlord has or within six (6) months thereafter reasonably expects to have
comparable space for a comparable term available in the Building, the proposed
subtenant or assignee shall not be (x) a Person with whom Landlord is then
negotiating or discussing the leasing of space in the Building; or (y) a tenant
in or occupant of the Building or any Person that, directly or indirectly, is
controlled by, controls or is under common control with any such tenant or
occupant;


                              (5)
any subletting shall be expressly subject to all of the terms, covenants,
conditions and obligations on Tenant’s part to be observed and performed under
this Lease and any assignment or subletting shall be subject to the further
condition and restriction that this Lease or the sublease shall not be further
assigned, encumbered or otherwise transferred or the subleased premises further
sublet by the subtenant in whole or in part, or any part thereof suffered or
permitted by the assignee or subtenant to be used or occupied by others,
without the prior written consent of Landlord in each instance, which consent
shall not be unreasonably withheld, conditioned or delayed and shall be granted
or withheld in accordance with the provisions of this Article 12 as if Tenant
was itself requesting the consent of Landlord (provided, however, that any of
the provisions of this Article 12 that are expressly stated to benefit only the
Tenant named in this Lease shall not be deemed to be applicable to such
request);


                              (6)
at no time shall there be more than four (4) occupants per floor (pro-rated
with respect to a partial floor), including Tenant, all of whom shall have
direct access through existing public corridors to elevators, fire stairs and
core rest rooms;


                              (7)
any sublease shall expressly provide that in the event of termination, reentry
or dispossession of Tenant by Landlord under this Lease, Landlord may, at its
option, take over all of the right, title and interest of Tenant as sublessor
under such sublease, and such subtenant shall, at Landlord’ s option, attorn to
Landlord pursuant to the then executory provisions of such sublease, except
that Landlord shall not be (i) liable for any previous act or omission of
Tenant under such sublease, (ii) subject to any offset that theretofore accrued
to such subtenant against Tenant, (iii) bound by any previous modification of
such sublease or by any previous prepayment of more than one month’s rent
unless previously approved by Landlord, (iv) bound by any covenant to undertake
or complete or make payment to or on behalf of a subtenant with respect to any
construction of the Premises or any portion thereof demised by such sublease
and (v) bound by any obligations to make any other payment to or on behalf of
the subtenant, except for services, repairs, maintenance and restoration provided
for under the sublease to be performed after the date of such termination,
reentry or dispossession by Landlord


40





under this Lease and which Landlord is required to perform hereunder
with respect to the subleased space at Landlord’s expense;


                              (8)
The nature of the occupancy of the proposed assignee or subtenant will not be
more objectionable or more hazardous than that of Tenant herein;


                              (9)
Tenant shall have complied with the requirements of paragraph (B) of this
Section 12.4; and


                              (10)
The nature of the occupancy, the use and the manner of use of the Premises by
the proposed subtenant or assignee shall not impose on Landlord any
requirements of the ADA in excess of those requirements imposed on Landlord in
the absence of such proposed subtenant or assignee or such occupancy, use or
manner of use unless such proposed subtenant or assignee shall have agreed to
comply with each of such excess requirements and, at Landlord’s option, shall
have furnished Landlord with such security as Landlord may require to assure
that such subtenant or assignee shall so comply.


Landlord agrees, if it has not exercised its option to terminate this
Lease with respect to all or a portion of the Premises, as provided in Section
12.4(B), or if such Section 12.4(B) is inapplicable, to grant or deny its
consent to an assignment or sublet proposed by Tenant, subject to Tenant’s
satisfaction of the requirements set forth in this Section 12.4(A), within
thirty (30) days of the date that Tenant has duly submitted a request for
Landlord’s consent under this Section 12.4(A); and, if Landlord fails to so
grant or deny its consent within such thirty (30) day period, Landlord shall be
deemed to have consented thereto, provided that Tenant shall have sent a notice
to Landlord with the phrase “FAILURE TO CONSENT TO TENANT’S PROPOSED SUBLETTING
OR ASSIGNMENT WITHIN FIVE (5) DAYS AFTER THE GIVING OF THIS NOTICE TO LANDLORD
SHALL RESULT IN THE DEEMED CONSENT OF SUCH PROPOSED SUBLETTING OR ASSIGNMENT”
in bold lettering at the top of such notice and if Landlord shall not give
notice to Tenant of Landlord’s consent or disapproval of such subletting or
assignment within such five (5) day period, Landlord shall be deemed to have
consented thereto. Such notice may be given to Landlord on or after the date
that is twenty-five (25) days after the date Tenant has duly submitted a
request for Landlord’s consent. Tenant shall reimburse Landlord on demand for
any reasonable costs that may be incurred by Landlord in connection with said
assignment or sublease, including, without limitation, reasonable attorneys’
fees, charges and disbursements, and the reasonable out-of-pocket third party
costs of making investigations as to the acceptability of the proposed assignee
or subtenant; otherwise, Landlord shall not charge Tenant a fee in connection
with Tenant’s request for consent.


                    (B)
Should Tenant desire to assign this Lease or sublet more than 50% of the
rentable area of the Premises for a term expiring within the last year of the
Term, other than as contemplated by Sections 12.3(A) and 12.3(B) Tenant shall,
except as otherwise set forth in this Article 12, deliver a notice to Landlord
(the “Sublease or Assignment Statement”) specifying (i) whether Tenant
proposes to assign this Lease or to sublet more than 50% of the rentable area
of the Premises for a term expiring within the last year of the Term; (ii) the
proposed effective date of a proposed assignment of this Lease or the proposed
commencement date for a sublease of the Premises; and (iii) if Tenant proposes
to sublet more than 50% of the rentable area of the Premises (but less than all
or substantially all of the Premises) for a term expiring within the last


41





year of the Term, a description of the portion of the Premises proposed
to be subleased. The Sublease or Assignment Statement shall not be required to
set forth any proposed business terms upon which Tenant proposes to sublet the
Premises or assign its interest in this Lease; nor name a particular proposed
subtenant or assignee. Landlord shall have the right, exercisable within thirty
(30) days after Tenant shall have given the Sublease or Assignment Statement
(including any additional information reasonably and promptly requested by
Landlord): (i) in the case of an assignment of this Lease or a sublease of all
or substantially all of the Premises for a term expiring within the last year
of the Term, the right to terminate this Lease; or (ii) to terminate this Lease
with respect to the portion of the Premises proposed to be sublet, if the
proposed sublease is a sublease of more than 50% of the rentable area of the
Premises (but less than all or substantially all of the Premises) for a term
expiring within the last year of the Term. If Landlord shall fail to notify
Tenant within said thirty (30) day period of Landlord’s exercise of its rights
pursuant to this Section 12.4(B), Landlord shall be deemed to have not
exercised its right to terminate and Tenant shall be free to consummate a
subletting or assignment substantially in accordance with the Sublease or
Assignment Statement, subject to the terms and conditions of this Lease,
including paragraph (A) of this Section 12.4. If Tenant shall not enter into a
sublease or assignment substantially in accordance with the Sublease or
Assignment Statement within two hundred seventy (270) days after the delivery
of the Sublease or Assignment Statement to Landlord, then the provisions of
this Section 12.4 shall again be applicable to any other proposed subletting or
assignment. If Landlord exercises its option to terminate the Lease, in the
case of an assignment of this Lease, or a sublease of all or substantially all
of the Premises for a term expiring within the last year of the Term, as
provided in this Section 12.4(B), then (x) this Lease shall end and expire on
the later of (A) the date specified in the Sublease or Assignment Statement and
(B) the ninetieth (90th) day after the date on which Tenant shall have
delivered the Sublease or Assignment Statement, (y) Fixed Rent, Tenant’s Share
of Expenses and Tenant’s Tax Share of Taxes shall be apportioned, paid or
refunded as of such date, and (z) Tenant shall have no further obligations or
liabilities with respect to the Premises from and after the effective date of
such termination other than obligations and liabilities which accrued prior to
the date of such termination and other obligations and liabilities which, by
the terms of this Lease, survive the expiration or termination thereof. If
Landlord exercises its option to terminate this Lease with respect to a portion
of the Premises, in the case of a sublease of more than 50% of the rentable
area of the Premises (but less than all or substantially all of the Premises)
for a term expiring within the last year of the Term, as provided in this
Section 12.4(B), then: (v) this Lease shall end and expire, solely with respect
to the portion of the Premises that shall be described in such Sublease or
Assignment Statement, on the later of (A) the date specified in the Sublease or
Assignment Statement and (B) the ninetieth (90th) day after the date on which
Tenant delivered the Sublease or Assignment Statement, (w) Fixed Rent, Tenant’s
Share of Expenses and Tenant’s Tax Share of Taxes shall be apportioned, paid or
refunded as of such date, (x) Tenant and Landlord shall enter into an amendment
of this Lease ratifying and confirming such partial termination of this Lease
and setting forth any appropriate modifications to the terms and provisions
hereof, (y) Landlord shall be free to lease the portion of the Premises
recaptured pursuant to this Section 12.4(B); and (z) Tenant shall have no
further obligations or liabilities with respect to the portion of the Premises
recaptured from and after the effective date of such termination, other than
obligations and liabilities which accrued prior to the date of such termination
and other obligations and liabilities which, by the terms of this Lease,
survive the expiration or termination of this Lease with respect


42





thereto. Additionally, if this Lease shall be terminated with respect
to less than the entire Premises, as aforesaid: (i) Tenant shall at its sole
cost and expense make all necessary alterations to physically separate the
portion of the Premises recaptured by Landlord from the remainder of the
Premises on the later of (i) the date specified in the Sublease or Assignment
Statement and (ii) the ninetieth (90th) day after the date on which Tenant
delivered the Sublease or Assignment Statement in compliance with all
Requirements relating thereto (including, without limitation, capping,
re-routing or reconfiguring all mechanical, electrical, plumbing, life-safety
and other systems and equipment serving the affected portions of the Premises
as an Alteration under the provisions of this Lease, and installing one or more
submeters to accurately measure the electricity consumed in the affected
portions of the Premises); and (ii) the Rents herein reserved shall be prorated
on the basis of the number of rentable square feet in the portion of the
Premises retained by Tenant in proportion to the number of rentable square feet
in the Premises prior to recapture by Landlord; and (iii) Tenant shall
surrender and vacate the portion of the Premises recaptured pursuant to this
Section 12.4(B) in accordance with Article 20 of this Lease on or before the
later of (A) the date specified in the Sublease or Assigment Statement and (B)
the ninetieth (90th) day after the date on which Tenant delivered the Sublease
or Assignment Statement, and any failure to do so shall be subject to the
provisions of said Article 20 of this Lease.


                    (C)
The failure by Landlord to exercise its option under Section 12.4(B) with
respect to any subletting or assignment shall not be deemed a waiver of such
option with respect to any extension of such subletting or assignment or any
subsequent subletting or assignment.


                    (D)
Tenant shall deliver to Landlord, within five (5) days after execution thereof
by Tenant, but no less than five (5) days prior to the effective date of the
contemplated sublease or assignment, an original counterpart of any executed
sublease or instrument of assignment, together with (i) Tenant’s and the
subtenant’s (or assignee’s) affidavit that such sublease or assignment
instrument is the true and complete statement of the subletting or assignment
and reflects all sums and other consideration passing between the parties to
the sublease or assignment and (ii) all reports, returns, transferor and
transferee questionnaires and other documents required to be filed under
Article 31 of the New York State Tax Law and under Chapter 21 of the New York
City Administrative Code.


          Section
12.5 If Tenant sublets any portion of the Premises to a Person in a
transaction for which Landlord’s consent is required, Landlord shall be
entitled to and Tenant shall pay to Landlord, as Additional Rent (the “Sublease
Additional Rent”), a sum equal to fifty (50%) percent of any rents, additional
charges and other consideration payable under the sublease to Tenant by the
subtenant in excess of the Fixed Rent and Escalation Rent accruing during the
term of the sublease in respect of the subleased space (at the rate per square
foot payable by Tenant under this Lease for the subleased space) pursuant to
the terms of this Lease (including, but not limited to, sums paid for the sale
or rental of Tenant’s Property in the Premises and Alterations less the then
net unamortized or undepreciated cost thereof determined on the basis of
Tenant’s federal income tax or federal information returns) after first
deducting Tenant’s Expenses (as defined below). Tenant shall be entitled to
recover such Tenant’s Expenses before paying any of the Sublease Additional
Rent to Landlord.


          Section
12.6 If Tenant shall assign this Lease to a Person in a transaction for
which Landlord’s consent is required, Landlord shall be entitled to and Tenant
shall pay to Landlord, as


43





Additional Rent (“Assignment Additional Rent”), an amount
equal to fifty (50%) percent of all sums and other consideration paid to Tenant
by the assignee for or by reason of such assignment (including, but not limited
to, sums paid for the sale or rental of Tenant’s Property in the Premises and
Alterations less the then net unamortized or undepreciated cost thereof,
determined on the basis of Tenant’s federal income tax or federal information
returns, after first deducting Tenant’s Expenses (as defined below). Tenant
shall be entitled to recover such Tenant’s Expenses before paying any portion
of the Assignment Additional Rent to Landlord.


          Section
12.7 In this Article 12, the term “Tenant’s Expenses” shall mean in
connection with an assignment or sublease: all reasonable and customary
advertising and marketing expenses; customary brokerage commissions; reasonable
legal fees; commercially reasonable tenant inducements in the form of rental
abatements or credits against rents; construction allowances or the cost of
work letters in lieu thereof; the then-unamortized cost of Tenant’s Initial
Alterations up to $35.00 per rentable square foot of the Premises for the first
year of the Term, and reduced thereafter by the cumulative annual amortization
thereof (which amortization shall be computed as required for federal income
tax purposes over the original Term of this Lease); reimbursement to Landlord
of its expenses related to the approval of the transfer; real property transfer
taxes; and other reasonable and customary tenant concessions incurred or to be
incurred by Tenant. Any dispute over Tenant’s Expenses under this Section 12.7,
or the calculation of profits under Section 12.5 or under Section 12.6 shall be
resolved by arbitration in accordance with Section 38.7 of this Lease.


          Section
12.8 Landlord shall have no liability for brokerage commissions incurred
with respect to any assignment of this Lease or any subletting of all or any
part of the Premises by or on behalf of Tenant. Tenant shall pay, and shall
indemnify and hold Landlord harmless from and against, any and all cost,
expense (including reasonable attorneys’ fees and disbursements) and liability
in connection with any compensation, commissions or charges claimed by any
broker or agent with respect to any such assignment or subletting, except for a
broker retained by Landlord.


          Section
12.9 Notwithstanding anything to the contrary contained herein, Tenant
shall have the right, without prior written consent of Landlord, and without
being subject to subsections 12.1 through 12.8 of this Article 12, to enter
into a license agreement or sublease for the use of office space which shall be
undivided and consist of less than one thousand (1,000) rentable square feet on
each floor of the Premises with any charitable organization, including, without
limitation, D.K.M.S. Americas (other than a charitable organization whose
activities may, in Landlord’s reasonable opinion, pose a threat or security
risk to tenants of the Building), provided that such occupancy shall comply in
all respects with applicable Requirements (including, without limitation, the
provisions of the New York City Building Code).


          Section
12.10 If Landlord shall be entitled, pursuant to any lease with another
tenant of the Building, to prohibit such other tenant from subletting any space
in the Building or assigning its lease to Tenant by reason of the fact that
Tenant is an occupant of the Building, Landlord will not exercise such right
unless Landlord reasonably expects that office space comparable to the space
offered by such other tenant will become available for leasing in the elevator
bank serving the Premises within the six (6) month period after such other
tenant’s request to assign its lease or sublet all or a portion of its premises
shall have been given. Any comparable space which


44





Landlord expects will become available for leasing in the elevator bank
serving the Premises shall be deemed comparable to the space offered by such
other tenant if both spaces contain substantially the same rentable square
footage and are for substantially the same term. Within fifteen (15) days after
Tenant’s request therefor, Landlord agrees to give Tenant notice if any such
comparable space will become available for leasing in the elevator bank serving
the Premises. If no such comparable space is available for leasing in the
elevator bank serving the Premises, then Landlord agrees that (i) Tenant shall
have the right to enter a sublease or assignment transaction with such other
tenant and (ii) Landlord shall not unreasonably withhold or delay its consent
thereto, utilizing the same criteria as are applicable to an assignment or
sublease by Tenant under this Article 12 (except that Section
12.4(A)(4) shall not be applicable). Nothing contained in this Section
12.10 shall be deemed to preclude Landlord from exercising any right to
recapture such space from such other tenant; provided
that Landlord offers any comparable space which also constitutes
“First Offer Space” to Tenant to the extent Landlord is required to do so
pursuant to Article 39. 


          Section
12.11 If Tenant disagrees with (i) Landlord’s disapproval of a particular
sublease or assignment (ii) the conditions applicable to Landlord’s approval of
a particular sublease or assignment; or (iii) Landlord’s determination of the
Sublease Additional Rent or the Assignment Additional Rent payable under this
Article 12, Tenant may submit such issue to arbitration pursuant to the
provisions of Section 38.7 of this Lease within ten (10) Business Days from the
date of Landlord’s disapproval, approval or determination, as applicable;
provided, however, that with respect to a determination made by Landlord in
respect of Sublease Additional Rent or Assignment Additional Rent, Tenant shall
pay such Sublease Additional Rent or Assignment Additional Rent, subject to
refund or credit together with interest at the Applicable Rate when the matter
is resolved by arbitration or by mutual agreement. In connection with any such
dispute, Landlord or its authorized representatives shall have the right at all
reasonable times, and upon reasonable prior written notice to Tenant, to audit
all books, records and papers relating to any such sublease or assignment, and
shall have the right to make copies thereof. All information obtained by
Landlord during any audit of Tenant’s books, records and papers and copies of
the foregoing shall be maintained on a confidential basis by Landlord and its
authorized representatives.


ARTICLE 13


ELECTRICITY


          Section
13.1 Tenant shall at all times comply with the rules, regulations, terms
and conditions applicable to service, equipment, wiring and requirements of the
public utility supplying electricity to the Building. Tenant shall not use any
electrical equipment which, in Landlord’s reasonable judgment, would exceed the
capacity of existing feeders to the Building or the risers or wiring
installations therein or which will overload such installations or interfere
with the electrical service to other tenants of the Building. In the event
that, in Landlord’s reasonable judgment, Tenant’s electrical requirements
necessitate installation of an additional riser, risers or other proper and
necessary equipment, Landlord shall so notify Tenant of the same. Within five
(5) Business Days after receipt of such notice, Tenant shall either cease such
use of such


45





additional electricity or shall request that additional electrical
capacity (specifying the amount requested) be made available to Tenant.
Landlord, in Landlord’s reasonable judgment shall determine whether to make
available such additional electrical capacity to Tenant and the amount of such
additional electrical capacity to be made available. If Landlord shall agree to
make available additional electrical capacity and the same necessitates
installation of an additional riser, risers or other proper and necessary
equipment, including, without limitation, any switchgear, the same shall be
installed by Landlord. Any such installation of capacity dedicated to Tenant’s
exclusive use shall be made at Tenant’s sole cost and expense, and shall be
chargeable and collectible as additional rent and paid within thirty (30) days
after the rendition of a bill to Tenant therefor. Landlord shall not be liable
in any way to Tenant for any failure or defect in the supply or character of
electric service furnished to the Premises by reason of any requirement, act or
omission of the utility serving the Building or for any other reason not
attributable to the negligence or willful misconduct of Landlord, whether
electricity is provided by public or private utility or by any electricity
generation system owned and operated by Landlord.


          Section
13.2 Landlord shall redistribute to Tenant not less than six (6) watts
demand load of electricity per rentable square foot of the Premises (which load
shall be exclusive of the VAC load necessary for the operation of the Tenant
VAC Units, as said term is defined in Section 28.2 of this Lease) for use by
Tenant. Electricity shall be furnished by Landlord to the Premises and to the
Tenant VAC Units on a submetered basis, and Tenant shall pay to Landlord, as
additional rent for such service, during the Term, an amount (the “Electricity
Additional Rent”) equal to (i) the average amount Landlord actually pays
per kilowatt hour of electric to the utility company (or other provider of
electricity to the Building) to provide electricity to the Building, including
all applicable surcharges, demand charges, time-of-day charges, energy charges,
fuel adjustment charges, rate adjustment charges, taxes and other sums payable
in respect thereof (the “Electric Rate”) for the consumption of
electricity as registered by the meter(s) or submeter(s) installed in the
Premises for purposes of measuring such demand and consumption (it being agreed
that such meter or submeter shall measure demand and consumption, and off-peak
and on-peak use, in either case to the extent such factors are relevant in
making the determination of Landlord’s cost) plus (ii) five percent (5%) of the
foregoing amount. Landlord shall install one or more temporary or permanent
electrical submeters at Landlord’s cost at a location or locations selected by
Landlord within a reasonable period following the Commencement Date; and
Landlord shall maintain and replace such submeters as reasonably required
throughout the Term of this Lease. Until such submeters are installed, Tenant
shall pay for the cost of electricity made available to the Premises at the
rate of $1.00 per rentable square foot per annum on the portion of the Premises
in respect of which Landlord’s Pre-Commencement Date Work shall have been
substantially completed and possession of which shall have been delivered to
Tenant in accordance with this Lease. Tenant, from time to time, shall have the
right to review Landlord’s meter readings and Landlord’s calculation of the
Electricity Additional Rent, at reasonable times and on reasonable prior
notice, by giving notice thereof to Landlord on or prior to the sixtieth (60th)
day after the date when Landlord gives Tenant a bill or statement for the
Electricity Additional Rent. Where more than one meter measures the electricity
supplied to Tenant, a separate meter or device shall measure demand as to all
such submeters on a “co-incident” basis, or demand as to all such submeters
shall be electronically totalized, subject to the provisions hereinabove set
forth. Bills for the Electricity


46





Additional Rent shall be rendered to Tenant at such time as Landlord
may elect, and Tenant shall pay the amount shown thereon to Landlord on the
first day of the month next following receipt of such bill, provided, Tenant
shall have not less than twenty (20) days’ prior notice of the amount due.


          Section
13.3 (A) If, pursuant to any Requirements, submetering becomes a prohibited
method of measuring the consumption of electricity in the Premises, then,
unless Landlord elects to have Tenant obtain electricity directly from the
public utility company or other provider furnishing electricity to the Building
pursuant to the provisions of Section 13.4 hereof, Landlord shall furnish
electric current to the Premises for the use of Tenant for the operation of the
lighting fixtures and the electrical receptacles for ordinary office equipment
to the Premises on a “rent inclusion” basis, that is, there shall be no
separate charge to Tenant for such electric current by way of measuring such
electricity service on any meter. If Landlord shall furnish electricity to the
Premises on a “rent inclusion basis” as aforesaid, then the annual Fixed Rent
set forth in this Lease shall be increased by the initial sum of $3.00 per
rentable square foot, multiplied by the number of rentable square feet in the
Premises (the “Electricity Inclusion Factor”) as an annual charge for
the furnishing of electric energy to the Premises, as the same may be increased
pursuant to the provisions of this Lease. The parties agree that although the
charge for furnishing electrical energy shall be included in the Fixed Rent on
a so-called “rent inclusion basis”, the value to Tenant of such service may not
be fully reflected in the Fixed Rent. Accordingly, Tenant agrees that Landlord,
at Landlord’s option, may cause a reputable and independent electrical engineer
or electrical consulting firm, selected by Landlord (such engineer or
consulting firm being hereinafter referred to as “Landlord’s Engineer”),
to make a determination, from time to time, of the Full Value of such service
to Tenant. As used herein, the “Full Value” to Tenant of such service
shall mean the product obtained by multiplying the demand and consumption of
electric energy at the Premises by the Electric Rate. Landlord’s Engineer shall
certify such determination in writing to Landlord and Tenant. If the Full Value
to Tenant is in excess of the Electricity Inclusion Factor, the Electricity
Inclusion Factor and the Fixed Rent shall be increased by such excess. However,
if it shall be so determined that the Full Value to Tenant of such service does
not exceed the Electricity Inclusion Factor, there shall nevertheless be no
decrease in the Electricity Inclusion Factor or in the Fixed Rent.


                              (B)
If during the Term the Electric Rate shall increase over the Base Electric
Rate, the Electricity Inclusion Factor (and therefore the Fixed Rent) shall be
increased by the actual increase in the Electric Rate.


                              (C)
(i) Either Landlord or Tenant may, from time to time during the Term, cause a
duly qualified engineer (the “Engineer”) to survey the demand and
consumption of electrical energy at the Premises. If the then Full Value shall
exceed the then-applicable Electricity Inclusion Factor, the then-applicable
Electricity Inclusion Factor (and therefore the Fixed Rent) shall be increased
by the actual increase in the Electric Rate, based on the increased demand and
consumption and the then prevailing Electric Rate. If the then Full Value shall
be less than the then-applicable Electricity Inclusion Factor, the
then-applicable Electricity Inclusion Factor (and therefore the Fixed Rent)
shall be proportionately reduced, based on the reduced demand and consumption
and the then prevailing Electric Rate; provided, however, that


47






under no circumstance shall the Electricity Inclusion Factor ever be
reduced below $3.00 per rentable square foot, multiplied by the number of
rentable square feet in the Premises.


	
  

 	
  

 
	
  

 	
           (ii)
 If Landlord shall survey the demand and consumption of
 electrical energy at the Premises, Landlord shall furnish to Tenant a written
 statement (an “Electricity Statement”) setting forth the Engineer’s
 determination of any increase which has occurred in the Full Value and the
 Electricity Inclusion Factor (and therefore the Fixed Rent) pursuant to the
 provisions of either Sections 13.3(A), (B), or (C)(i). Any such increase in
 the Electricity Inclusion Factor and the Fixed Rent shall be effective as of
 the date of such increase to the Electric Rate or, with respect to an
 increase attributable to increased consumption and demand of electric energy,
 the date of the survey and shall be retroactive to such dates if necessary
 (provided, however, that in no event shall any such retroactivity exceed a
 period of sixty (60) days). Any retroactive increase shall be paid by Tenant
 within twenty (20) days after demand and such amount shall be collectible by
 Landlord as Fixed Rent hereunder. If Tenant shall survey the demand and
 consumption of electrical energy at the Premises, Tenant shall furnish to
 Landlord an Electricity Statement setting forth the Engineer’s determination
 of any reduction which has occurred in the Full Value and the Electricity
 Inclusion Factor (and therefore the Fixed Rent) pursuant to the provisions of
 either Sections 13.3(A), (B), or (C)(i). Any such reduction in the
 Electricity Inclusion Factor and the Fixed Rent shall be effective as of the
 date of such reduction to the Electric Rate or, with respect to a reduction
 attributable to reduced consumption and demand of electric energy, the date
 of the survey and shall be retroactive to such dates if necessary. Any
 retroactive reduction shall be at Landlord’s option, either credited against
 subsequent monthly installments of Fixed Rent hereunder or paid to Tenant
 within thirty (30) days after demand.

 
	
  

 	
  

 
	
  

 	
           (iii)
 Each such Electricity Statement given by Landlord or Tenant (as
 applicable, the “Notifying Party”), pursuant to Section 13.3(C)(ii)
 above, shall be conclusive and binding upon the other party (the “Notified
 Party”), unless within ninety (90) days after the receipt of such
 Electricity Statement, the Notified Party shall notify the Notifying Party
 that it disputes the correctness of the Electricity Statement. If such
 dispute is based on Tenant’s demand and consumption of electric current, the
 Notified Party shall submit a survey and determination of such adjustment,
 made at its sole cost and expense, by a reputable and independent electrical
 engineer or electrical consulting firm (the “Second Engineer”), within
 ninety (90) days after receipt of such Electricity Statement. If Landlord and
 Tenant are unable to resolve the dispute differences between them within
 ninety (90) days after receipt by the Notifying Party of a copy of the
 determination of the Second Engineer, the dispute shall be decided by a third
 reputable and independent electrical engineer or electrical consulting firm
 (the “Third Engineer”). If the parties shall fail to agree upon the
 designation of the Third Engineer within thirty (30) days after the receipt
 by the Notifying Party of the determination of the Second Engineer, then
 either party may apply to the American Arbitration Association or any
 successor thereto for the designation of

 


48









	
  

 	
  

 
	
  

 	
 the Third Engineer. The Third Engineer shall conduct such hearings as
 he deems appropriate. The Third Engineer, within thirty (30) days after his
 designation, shall select the determination of either the Engineer or the
 Second Engineer, and such determination shall be conclusive and binding upon
 the parties whether or not a judgment shall be entered in any court. The fees
 of the Third Engineer and the costs of arbitration shall be paid equally by
 the parties, except that each party shall pay its own counsel fees and
 expenses, if any, in connection with the arbitration. If Landlord shall be
 the Notifying Party, then pending the resolution of such dispute by agreement
 or arbitration as aforesaid, Tenant shall pay any increase in the Electricity
 Inclusion Factor in accordance with the Electricity Statement, without
 prejudice to Tenant’s position, as herein provided. If the dispute shall be
 resolved in Tenant’s favor, Landlord, at its option, shall either credit the
 amount of such overpayment against subsequent monthly installments of Fixed
 Rent hereunder or pay to Tenant the amount of such overpayment.

 


                    (D)
Landlord’s failure during the Term to prepare and deliver any Electricity
Statement, or bills, or Landlord’s failure to make a demand, under this Article
or any other provisions of this Lease, shall not in any way be deemed to be a
waiver of, or cause Landlord to forfeit or surrender, its rights to collect any
portion of the increase in the Electricity Inclusion Factor (and therefore the
Fixed Rent) which may have become due pursuant to this Article 13 during the
Term, except as otherwise expressly provided to the contrary in Section
13.3(C)(ii). Tenant’s liability for the amounts due under this Article 13 shall
survive the expiration or sooner termination of this Lease for a period of one
(1) year after the expiration or sooner termination of this Lease, and
Landlord’s obligation, if any, to refund any payments by Tenant in excess of
the amounts required to be paid by Tenant to Landlord pursuant to this Article
13 shall survive the expiration or sooner termination of this Lease. The
preceding sentence shall not, however, be construed as limiting or restricting,
in any manner whatsoever, Landlord’s right pursuant to this Lease or pursuant
to law to offset any such overpayments by Tenant against any amounts which may
be due and payable as provided in this Lease.


                    (E)
In no event shall any adjustment of the payments made or to be made hereunder
result in a decrease in Fixed Rent or additional rent payable pursuant to any
other provision of this Lease, or in the Electricity Inclusion Factor set forth
in Section 13.3(A) of this Lease (to wit: $3.00 per rentable square foot,
multiplied by the number of rentable square feet in the Premises).


                    (F)
The Electricity Inclusion Factor shall be collectible by Landlord in equal
monthly installments at the same times, and in the same manner as Fixed Rent.


If Landlord discontinues furnishing electricity to Tenant pursuant to
this Section 13.3, the Fixed Rent shall be decreased by the Electricity
Inclusion Factor effective as of the date Landlord discontinues the provision
of electricity in such manner.


          Section
13.4 Landlord shall have the right to discontinue furnishing electricity to
Tenant upon not less than sixty (60) days’ prior written notice to Tenant, if
required by applicable Requirements, and this Lease shall continue in full
force and effect and shall be unaffected thereby, except only that from and
after the effective date of such discontinuance,


49





Landlord shall not be obligated to furnish electricity to Tenant and
Tenant shall not be obligated to pay the Electricity Inclusion Factor or the
Electricity Additional Rent, as the case may be. If Landlord so discontinues
furnishing electricity to Tenant, Tenant shall use diligent efforts to obtain
electric energy directly from the public utility furnishing electric service to
the Building. The costs of such service shall be paid by Tenant directly to
such public utility. Such electricity may be furnished to Tenant by means of
the existing electrical facilities serving the Premises, at no charge to Tenant,
to the extent the same are available, suitable and safe for such purposes as
reasonably determined by Landlord. All meters and all additional panel boards,
feeders, risers, wiring and other conductors and equipment which may be
required to obtain electricity directly from the public utility furnishing
electric service to the Building shall be installed by Landlord, and the cost
thereof shall be borne equally by Landlord and Tenant. Provided Tenant shall
use and continue to use diligent efforts to obtain electric energy directly
from the public utility, Landlord, to the extent permitted by applicable
Requirements, shall not discontinue furnishing electricity to the Premises
until such installations have been made and Tenant shall be able to obtain electricity
directly from the public utility.


          Section
13.5 Notwithstanding anything to the contrary contained in this Lease,
Tenant shall not be required to pay for electricity on any portion of the
Premises in respect of which Landlord’s Pre-Commencement Date Work shall not
have been substantially completed and possession of which shall not have been
delivered to Tenant in accordance with this Lease.


ARTICLE 14


ACCESS TO PREMISES


          Section
14.1 (A) Tenant shall permit Landlord, Landlord’s agents, representatives,
contractors and employees and public utilities servicing the Building to erect,
use and maintain, concealed ducts, pipes and conduits in and through the
Premises, as limited by the provisions of Section 14.1(C). Landlord, Landlord’s
agents, representatives, contractors, and employees and the agents,
representatives, contractors, and employees of public utilities servicing the
Building shall have the right to enter the Premises at all reasonable times
upon at least twenty-four (24) hours’ prior notice to Tenant (except to the
case of an emergency in which event Landlord and Landlord’s agents,
representatives, contractors, and employees may enter without prior notice to
Tenant), which notice may be oral, to examine the same, to show them to
prospective purchasers, or prospective or existing Mortgagees or Lessors, and
to make such repairs and alterations (provided such alterations are performed
subject to, and as limited by, the provisions of Section 14.1(C)), or
restorations under Articles 10 or 11 of this Lease (i) as Landlord may deem
necessary or reasonably desirable to the Premises or to any other portion of
the Building, or (ii) which Landlord may elect to perform following ten (10)
days after notice, except to the case of an emergency (in which event Landlord
and Landlord’s agents, representatives, contractors, and employees may enter
without prior notice to Tenant), following Tenant’s failure to make repairs or
perform any work which Tenant is obligated to make or perform under this Lease,
or (iii) for the purpose of complying with any Requirements, a Superior Lease
or a Mortgage, and Landlord shall be allowed to take all material into and upon
the Premises that may be required therefor without the same constituting an
eviction or constructive eviction of Tenant in whole or to part and the Fixed
Rent (and any other item of Rental) shall in no wise abate while said repairs
and


50





alterations (provided such alterations are performed subject to, and as
limited by, the provisions of Section 14.1(C)), or restorations under Articles
10 or 11 of this Lease are being made, by reason of loss or interruption of
business of Tenant, or otherwise.


                    (B)
Any work performed or installations made pursuant to this Article 14 shall be
made with reasonable diligence and otherwise pursuant to the provisions of
Section 4.3 hereof.


                    (C)
Except as provided in the following sentence, any pipes, ducts, or conduits
installed to or through the Premises pursuant to this Article 14 shall be
concealed behind, beneath or within partitioning, columns, ceilings or floors
located or to be located in the Premises (except that if Tenant shall adopt an
open ceiling plan in all or any portion of the Premises such pipes, ducts, or
conduits need not be concealed in such open ceiling portion). Notwithstanding
the foregoing, if it is not feasible to install such pipes, ducts or conduits
behind, beneath or within partitioning, columns, ceilings or floors, then any
such pipes, ducts, or conduits may be furred at points immediately adjacent to
partitioning columns or ceilings located or to be located in the Premises,
provided that the same are completely furred and that the installation of such
pipes, ducts, or conduits, when completed, shall not reduce either the usable
area or the cubic area of the Premises in excess of a de minimis amount.


          Section
14.2 During the twelve (12) month period prior to the Expiration Date,
Landlord may exhibit the Premises to prospective tenants thereof upon
reasonable prior notice to Tenant (which notice may be oral) provided notice of
such exhibition of the Premises by Landlord shall be conducted at reasonable
hours in a manner which shall not unreasonably interfere with the conduct of
Tenant’s business in the Premises.


          Section
14.3 If Tenant shall not be present when for any reason entry into the
Premises shall be necessary or permissible, Landlord or Landlord’s agents,
representatives, contractors or employees may enter the same without rendering
Landlord or such agents liable therefor if during such entry Landlord or
Landlord’s agents shall accord reasonable care under the circumstances to
Tenant’s Property, and without in any manner affecting this Lease. Nothing
herein contained, however, shall be deemed or construed to impose upon Landlord
any obligation, responsibility or liability whatsoever, for the care,
supervision or repair of the Building or any party thereof, other than as
herein provided. Landlord shall repair any damage to the Premises caused by its
entry thereon or the performance of work therein, including redecorating the
portion of the Premises affected to the condition existing immediately
preceding such damage. Notwithstanding anything to the contrary herein, from
time to time during the Term of this Lease, Tenant shall have the right to
designate one or more portions of the Premises (each a “Secured Area”),
to be a secure and confidential area, which Tenant shall require to house
sensitive information and to which access shall be limited. Tenant shall
provide Landlord with at least twenty-four (24) hours’ notice if Tenant wishes
to change the location of any Secured Area within the Premises. Landlord shall
only access a Secured Area upon prior notice to Tenant and if accompanied by a
representative of Tenant, who Tenant shall make available to Landlord upon
reasonable notice, except in the event of an emergency where there is an
imminent threat to life or property in which event no prior notice shall be
required prior to any entry into a Secured Area. Landlord shall not be required
to provide cleaning services in accordance with Section 28.4 to a
Secured Area or any other services that may require entry into


51





the Secured Area, unless and until such entry is granted by Tenant. Landlord
shall abide by any reasonable rules, regulations and procedures established by
Tenant from time to time with respect to entry to a Secured Area; provided that Tenant gives Landlord at
least twenty-four (24) hours’ notice of such rules, regulations and procedures.


          Section
14.4 Landlord also shall have the right at any time, without the same
constituting an actual or constructive eviction and without incurring any
liability to Tenant therefor, to change the arrangement or location of public entrances
or public passageways, public doors and public doorways, and public corridors,
elevators, public stairs, public toilets, or other public parts of the Building
and upon not less than ninety (90) days advance notice to Tenant, to change the
name, number or designation by which the Building is commonly known, provided
any such change does not (a) unreasonably reduce, interfere with or deprive
Tenant of access to the Building or the Premises or (b) reduce the usable area
(except by a de minimis amount) of the Premises (and, in the event Landlord
shall elect to change the address by which the building is known from “2 Park
Avenue”, Landlord shall reimburse Tenant for the cost of up to a four (4) month
supply of stationery and business cards bearing the address of the Building (or
a 2 month supply if Landlord delivers at least one hundred eighty (180) days
prior notice of a proposed change of address of the Building) to reflect such
changed address of the Building). All parts (except surfaces facing the interior
of the Premises) of all walls, windows and doors bounding the Premises
(including exterior Building walls, exterior core corridor walls, exterior
doors and entrances), all balconies, terraces and roofs adjacent to the
Premises, all space in or adjacent to the Premises used for shafts, stacks,
stairways, chutes, pipes, conduits, ducts, fan rooms, heating, air cooling,
plumbing and other mechanical facilities, service closets and other Building
facilities are not part of the Premises, and Landlord shall have the use
thereof, as well as access thereto through the Premises for the purposes of
operation, maintenance, alteration and repair.


ARTICLE 15


CERTIFICATE OF OCCUPANCY


          Tenant
shall not at any time use or occupy the Premises in violation of the
certificate of occupancy at such time issued for the Premises or for the
Building (the “Certificate of Occupancy”) and in the event that any
department of the City or State of New York shall hereafter contend or declare
by notice, violation, order or in any other manner whatsoever that the Premises
are used for a purpose which is a violation of such certificate of occupancy,
Tenant, upon written notice from Landlord or any Governmental Authority, shall
immediately discontinue such use of the Premises. Landlord shall not change the
Certificate of Occupancy for the Building to preclude Tenant from using the
Premises for a permitted use, or reduce the occupancy levels for any floor
leased by Tenant pursuant to this Lease as set forth on the Certificate of Occupancy
in effect as of the date of this Lease. Annexed to this Lease as Exhibit E
is, a true copy of the Certificate of Occupancy for the Building on file with
the New York City Buildings Department.


52





ARTICLE 16


DEFAULT


          Section
16.1 Each of the following events shall be an “Event of Default”
hereunder:


                    (A)
if Tenant shall fail to make when due any payment of Fixed Rent
or Escalation Rent, unless such failure is cured within five (5) days after
Landlord’s delivery of notice thereof to Tenant, or if Tenant shall fail to
make when due any payment of any other item of Rental, unless such failure is
cured within ten (10) days after Landlord’s delivery of notice thereof to
Tenant, in each case specifying the particular default; or


                    (B)
if Tenant shall default in the observance or performance of any other term,
covenant or condition of this Lease on Tenant’s part to be observed or
performed and Tenant shall fail to remedy such default within thirty (30) days
after notice by Landlord to Tenant of such default, or if such default is of
such a nature that it cannot with due diligence be completely remedied within
said period of thirty (30) days and Tenant shall not commence within said
period of thirty (30) days, or shall not thereafter diligently prosecute to
completion, all steps necessary to remedy such default; or


                    (C)
if the Premises shall become permanently abandoned (for purposes of this Lease,
abandoned shall mean Tenant shall (i) have vacated the Premises with no
intention to return, and (ii) not be securing and maintaining the Premises in
good repair); or


                    (D)
if Tenant’s interest or any portion thereof in this Lease shall devolve upon or
pass to any person, whether by operation of law or otherwise, except as
expressly permitted under Article 12 hereof; or


                    (E)
(1) if Tenant shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due, or


                              (2)
if Tenant shall commence or institute any case, proceeding or other action (A)
seeking relief on its behalf as debtor, or to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, or (B) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its property, or


                              (3)
if Tenant shall make a general assignment for the benefit of creditors, or


                              (4)
if any case, proceeding or other action shall be commenced or instituted
against Tenant (A) seeking to have an order for relief entered against it as,
debtor or to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts under any existing or future law
of any jurisdiction, domestic or foreign, relating to bankruptcy,


53





insolvency, reorganization or relief of debtors, or (B) seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property, which in either of such
cases (i) results in any such entry of an order for relief, adjudication of bankruptcy
or insolvency or such an appointment or the issuance or entry of any other
order having a similar effect or (ii) remains undismissed for a period of sixty
(60) days, or


                              (5)
if any case, proceeding or other action shall be commenced or
instituted against Tenant seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its property which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within sixty (60) days from the entry thereof, or


                              (6)
if Tenant shall take any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the acts set forth in clauses (2),
(3), (4) or (5) above, or


                              (7)
if a trustee, receiver or other custodian is appointed for any substantial part
of the assets of Tenant which appointment is not vacated or stayed within sixty
(60) days; or


                    (F)
if Tenant shall fail more than three (3) times during any twelve (12)
consecutive month period to pay any installment of Fixed Rent or any other item
of Rental when due provided that any such failure in excess of three (3) times
shall not be deemed an Event of Default unless notice of such failure to pay
any installment of Fixed Rent or any other item of Rental shall have been duly
given; or


                    (G)
if this Lease is assigned, or all or a portion of the Premises are subleased,
to an Affiliate of Tenant, and such Affiliate shall thereafter cease to be an
Affiliate of Tenant, and Tenant shall fail to request the consent of Landlord
in accordance with and subject to all of the provisions of Article 12 of this
Lease within twenty (20) Business Days after the date that such assignee or
subtenant shall no longer be an Affiliate of Tenant and if Landlord shall not
approve (or be deemed to approve) such assignee or subtenant, and such assignee
or subtenant shall not have vacated the Premises within one hundred twenty
(120) days after Landlord shall have disapproved such assignee or subtenant; or


                    (H)
if Landlord shall duly present the Letter of Credit to the bank
which issued the same in accordance with the provisions of Article 31 hereof,
and the bank shall fail to honor the Letter of Credit and pay the proceeds
thereof to Landlord for any reason whatsoever.


          Section
16.2 If an Event of Default (i) described in Section 16.1 (E) hereof shall
occur, or (ii) described in Sections 16.1(A), (B), (C), (D), (F), (G) or (H)
shall occur and Landlord, at any time thereafter, at its option gives five (5)
days’ prior written notice to Tenant stating that this Lease and the Term shall
expire and terminate upon the expiration of said five (5) day period, then this
Lease and the Term and all rights of Tenant under this Lease shall expire and
terminate as if the date on which the Event of Default described in clause (i)
above occurred or the date of such notice, pursuant to clause (ii) above, as
the case may be, were the Fixed Expiration Date and Tenant immediately shall
quit and surrender the Premises, but Tenant shall


54





nonetheless be liable for all of its obligations hereunder, as provided
for in Articles 17 and 18 hereof. Anything contained herein to the contrary
notwithstanding, if such termination shall be stayed by order of any court
having jurisdiction over any proceeding described in Section 16.1(E) hereof, or
by federal or state statute, then, following the expiration of any such stay,
or if the trustee appointed in any such proceeding, Tenant or Tenant as
debtor-in-possession shall fail to assume Tenant’s obligations under this Lease
within the period prescribed therefor by law or within one hundred twenty (120)
days after entry of the order for relief or as may be allowed by the court, or
if said trustee, Tenant or Tenant as debtor-in-possession shall fail to provide
adequate protection of Landlord’s right, title and interest in and to the
Premises, Landlord, to the extent permitted by law or by leave of the court
having jurisdiction over such proceeding, shall have the right, at its
election, to terminate this Lease on five (5) days’ notice to Tenant, Tenant as
debtor-in-possession or said trustee and upon the expiration of said five (5)
day period this Lease shall cease and expire as aforesaid and Tenant, Tenant as
debtor-in-possession or said trustee shall immediately quit and surrender the
Premises as aforesaid.


          Section
16.3 If at any time, (i) Tenant shall be comprised of two (2) or more
persons, or (ii) Tenant’s obligations under this Lease shall have been
guaranteed by any person other than Tenant, or (iii) Tenant’s interest in this
Lease shall have been assigned, the word “Tenant”, as used in Section
16.1(E), shall be deemed to mean any one or more of the persons primarily or
secondarily liable for Tenant’s obligations under this Lease. Any monies
received by Landlord from or on behalf of Tenant during the pendency of any
proceeding of the types referred to in Section 16.1(E) shall be deemed paid as
compensation for the use and occupation of the Premises and the acceptance of
any such compensation by Landlord shall not be deemed an acceptance of Rental
or a waiver on the part of Landlord of any rights under Section 16.2.


ARTICLE 17


REMEDIES AND DAMAGES


          Section
17.1 (A) If there shall occur any Event of Default, and this Lease and the
Term shall expire and come to an end as provided to Article 16 hereof:


                              (1)
Tenant shall quit and peacefully surrender the Premises to Landlord, and
Landlord and its agents may immediately, or at any time after such default or
after the date upon which this Lease and the Term shall expire and come to an
end, re-enter the Premises or any part thereof, without using force, without
notice, either by summary proceedings, or by any other applicable action or
proceeding (without being liable to indictment, prosecution or damages
therefor), and may repossess the Premises and dispossess Tenant and any other
persons from the Premises and remove any and all of their property and effects
from the Premises; and


                              (2)
Landlord, at Landlord’s option, may relet the whole or any portion or portions
of the Premises from time to time, either in the name of Landlord or otherwise,
to such tenant or tenants, for such term or terms ending before, on or after
the Expiration Date, at such rental or rentals and upon such other conditions,
which may include concessions and free rent periods, as Landlord, in its sole
discretion, may determine; provided, however, that Landlord shall have no
obligation to relet the Premises or any part thereof and shall in no event be
liable 


55





for refusal or failure to relet the Premises or any part thereof, or,
in the event of any such reletting, for refusal or failure to collect any rent
due upon any such reletting, and no such refusal or failure shall operate to
relieve Tenant of any liability under this Lease or otherwise affect any such
liability, and Landlord, at Landlord’s option, may make such repairs,
replacements, alterations, additions, improvements, decorations and other
physical changes in and to the Premises as Landlord, in its sole discretion,
considers advisable or necessary to connection with any such reletting or
proposed reletting, without relieving Tenant of any liability wider this Lease
or otherwise affecting any such liability.


                    (B)
Tenant hereby waives the service of any notice of intention to re-enter or to
institute legal proceedings to that end which may otherwise be required to be
given under any present or future law. Tenant, on its own behalf and on behalf
of all persons claiming through or under Tenant, including all creditors, does
further hereby waive any and all rights which Tenant and all such persons might
otherwise have under any present or future law to redeem the Premises, or to
re-enter or repossess the Premises, or to restore the operation of this Lease,
after (a) Tenant shall have been dispossessed by a judgment or by warrant of
any court or judge, or (b) any re-entry by Landlord, or (c) any expiration or
termination of this Lease and the Term, whether such dispossess, re-entry,
expiration or termination shall be by operation of law or pursuant to the
provisions of this Lease. The words “re-enter,” “re-entry” and “re-entered”
as used in this Lease shall not be deemed to be restricted to their technical
legal meanings. In the event of a breach or threatened breach by Tenant, or any
persons claiming through or under Tenant, of any term, covenant or condition of
this Lease, Landlord shall have the right to enjoin such breach and the right
to invoke any other remedy allowed by law or to equity as if re-entry, summary
proceedings and other special remedies were not provided in this Lease for such
breach The right to invoke the remedies hereinbefore set forth are cumulative
and shall not preclude Landlord from invoking any other remedy allowed at law
or in equity.


          Section
17.2 (A) If this Lease and the Term shall expire and come to an end as
provided in Article 16 hereof, or by or under any summary proceeding or any
other action or proceeding, or if Landlord shall re-enter the Premises as
provided in Section 17.1, or by or under any summary proceeding or any other
action or proceeding, then, in any of said events:


                              (1)
Tenant shall pay to Landlord all Fixed Rent, Escalation Rent and other items of
Rental payable under this Lease by Tenant to Landlord to the date upon which
this Lease and the Term shall have expired and come to an end or to the date of
re-entry upon the Premises by Landlord, as the case may be;


                              (2)
Tenant also shall be liable for and shall pay to Landlord, as damages, any
deficiency (referred to as “Deficiency”) between the Rental for the
period which otherwise would have constituted the unexpired portion of the Term
and the net amount, if any, of rents collected under any reletting effected pursuant
to the provisions of clause (2) of Section 17.1(A) for any part of such period
(first deducting from the rents collected under any such reletting all of
Landlord’s expenses in connection with the termination of this Lease,
Landlord’s re-entry upon the Premises and with such reletting, including, but
not limited to, all repossession costs, brokerage commissions, legal expenses,
attorneys’ fees and disbursements, alteration costs, contribution to work and
other expenses of preparing the Premises for such reletting); any such
Deficiency shall be paid in monthly installments by Tenant on the days
specified in this


56





Lease for payment of installments of Fixed Rent, Landlord shall be
entitled to recover from Tenant each monthly Deficiency as the same shall
arise, and no suit to collect the amount of the Deficiency for any month shall
prejudice Landlord’s right to collect the Deficiency for any subsequent month
by a similar proceeding; and


                              (3)
Whether or not Landlord shall have collected any monthly Deficiency as
aforesaid, Landlord shall be entitled to recover from Tenant, and Tenant shall
pay to Landlord, on demand, in lieu of any further Deficiency as and for
liquidated and agreed final damages, a sum equal to the amount by which the
Rental for the period which otherwise would have constituted the unexpired
portion of the Term (commencing on the date immediately succeeding the last
date with respect to which a Deficiency, if any, was collected) exceeds the
then fair and reasonable rental value of the Premises for the same period, both
discounted to present worth at the Base Rate, if, before presentation of proof
of such liquidated damages to any court, commission or tribunal, the Premises,
or any part thereof, shall have been relet by Landlord for the period which
otherwise would have constituted the unexpired portion of the Term, or any part
thereof, the amount of rent reserved upon such reletting shall be deemed, prima
facie, to be the fair and reasonable rental value for the part or the whole of
the Premises so relet during the term of the reletting.


                    (B)
If the Premises, or any part thereof, shall be relet together with other space
to the Building, the rents collected or reserved under any such reletting and
the expenses of any such reletting shall be equitably apportioned for the
purposes of this Section 17.2. Tenant shall in no event be entitled to any
rents collected or payable under any reletting, whether or not such rents shall
exceed the Fixed Rent reserved in this Lease. Solely for the purposes of this
Article 17, the term “Escalation Rent” as used in Section 17.2(A) shall
mean the Escalation Rent in effect immediately prior to the Expiration Date, or
the date of re-entry upon the Premises by Landlord, as the case may be,
adjusted to reflect any increase pursuant to the provisions of Article 27
hereof for the Operating Year immediately preceding such event. Nothing
contained in Article 16 hereof or this Article 17 shall be deemed to limit or
preclude the recovery by Landlord from Tenant of the maximum amount allowed to
be obtained as damages by any statute or rule of law, or of any sums or damages
to which Landlord may be entitled in addition to the damages set forth in this
Section 17.2.


ARTICLE 18


LANDLORD FEES AND EXPENSES


          Section
18.1 If Tenant shall be in default under this Lease, Landlord may (1) as
provided in Section 14.1 hereof, perform the same for the account of Tenant, or
(2) make any expenditure or incur any obligation for the payment of money,
including, without limitation, reasonable attorneys’ fees and disbursements in
instituting, prosecuting or defending any action or proceeding, and the cost
thereof, with interest thereon at the Applicable Rate, shall be deemed to be
additional rent hereunder and shall be paid by Tenant to Landlord within thirty
(30) days of rendition of any bill or statement to Tenant therefor and if the
term of this Lease shall have expired at the time of making of such
expenditures or incurring of such obligations, such sums shall be recoverable
by Landlord as damages.


57





          Section
18.2 Tenant shall pay, as additional Rent, a service charge of Two Hundred
Dollars ($200.00) or two percent (2%) of the delinquent amount, whichever is
greater, if any portion of Fixed Rent, Escalation Rent or any other Rental is
not received within five (5) days after it shall have become due. In addition,
any Fixed Rent, Escalation Rent or any other Rental not paid when due shall
accrue interest from the due date at the Applicable Rate until payment is
received by Landlord. (Notwithstanding the foregoing, Landlord agrees that
Tenant shall not be liable for the payment of a service charge or interest
payments as hereinbefore provided in this Section 18.2 with respect to the
first late payment of Rental in any twelve (12) month period during the Term of
this Lease, provided that Tenant shall have made any such late payment of
Rental to Landlord within five (5) days after receipt of notice from Landlord
with respect thereto.) Such service charges and interest payments shall not (i)
be deemed to constitute consent by Landlord to late payments, (ii) be deemed to
waive Landlord’s right to insist upon timely payments at any time or (iii) be
deemed to waive any remedies to which Landlord is entitled as a result of the
late payment of Rent. Landlord’s failure to collect when due any service
charges or interest payments as aforesaid, shall not be deemed to waive or
prevent Landlord from collecting such service charges and interest payments
with respect to other late payments. If Landlord receives two (2) or more
checks from Tenant which are returned by Tenant’s bank for insufficient funds,
Landlord may require that all checks thereafter be bank certified or cashier’s
checks (without limiting Landlord’s other remedies). All bank service charges
resulting from any returned checks shall be borne by Tenant.


ARTICLE 19


NO REPRESENTATIONS BY LANDLORD; LANDLORD’S
WORK


          Section
19.1 Landlord and Landlord’s agents and representatives have made no
representations or promises with respect to the Building, the Real Property or
the Premises except as herein expressly set forth, and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth herein.


          Section
19.2 Landlord shall exercise commercially reasonable efforts, subject to
Tenant Delay and Unavoidable Delays (i) to substantially complete Landlord’s
Pre-Commencement Date Work on or before March 15, 2006; (ii) to complete portions
of Landlord’s Post-Commencement Date Work on the dates set forth in Exhibit
B to this Lease; and (iii) to substantially complete Landlord’s Common Area
Work on the dates set forth in Exhibit B to this Lease. Except as
provided in this Lease (including Exhibit B to this Lease), no delay in
completing Landlord’s Work shall in any way affect the validity of this Lease
or the obligations of Tenant hereunder or give rise to a claim for damages by
Tenant or a claim for rescission of this Lease, nor shall the same be construed
in any way to extend the Term hereof. Landlord shall thereafter complete any
“punch-list” work within forty-five (45) days after the date that such portion
of Landlord’s Work or Landlord’s Common Area Work, as applicable, has been substantially
completed. Landlord agrees that, subject to Unavoidable Delays (not to exceed
fifteen (15) days in the aggregate), each item of Landlord’s Work and
Landlord’s Common Area Work, as applicable, shall be prosecuted with due
diligence; provided, however, that nothing contained to this Article 19 shall
be deemed to impose upon Landlord any obligations to employ contractors or
labor at so-called overtime or other premium pay rates or to incur any other


58





overtime costs or expenses whatsoever. Landlord shall, upon prior
notice to Tenant, have the right to enter the Premises subsequent to the
Commencement Date to perform Landlord’s Post-Commencement Date Work, and the
payment of Fixed Rent and Escalation Rent shall not be affected thereby, except
as provided in this Lease (including Exhibit B to this Lease). Landlord
and Tenant shall cooperate in good faith in connection with scheduling and
sequencing Tenant’s performance of the Initial Alterations with Landlord’s
performance of Landlord’s Post-Commencement Date Work.


ARTICLE 20


END OF TERM


          Upon the
expiration or other termination of this Lease, Tenant shall quit and surrender
to Landlord the Premises, vacant, broom clean, ordinary wear and tear and
damage for which Tenant is not responsible under the terms of this Lease
excepted, and otherwise in compliance with the provisions of Article 3 hereof.
Tenant expressly waives, for itself and for any person claiming through or
under Tenant, any rights which Tenant or any such person may have under the provisions
of Section 2201 of the New York Civil Practice Law and Rules and of any
successor law of like import then in force in connection with any holdover
summary proceedings which Landlord may institute to enforce the foregoing
provisions of this Article 20. Tenant acknowledges that possession of the
Premises must be surrendered to Landlord on the Expiration Date. If the
Premises are not surrendered by the date that is sixty (60) days after the
Expiration Date, Tenant agrees to indemnify and save Landlord harmless from and
against all claims, losses, damages, liabilities, costs and expenses
(including, without limitation, attorneys’ fees and disbursements) resulting
from delay by Tenant to so surrendering the Premises, including, without
limitation, any claims made by any succeeding tenant founded on such delay. The
parties recognize and agree that the damage to Landlord resulting from any
failure by Tenant to timely surrender possession of the Premises as aforesaid
will be extremely substantial, will exceed the amount of the monthly
installments of the Fixed Rent and Rental theretofore payable hereunder, and
will be impossible to accurately measure. Tenant therefore agrees that if
possession of the Premises is not surrendered to Landlord on the Expiration Date,
to addition to any other rights or remedies Landlord may have hereunder or at
law, and without in any manner limiting Landlord’s right to demonstrate and
collect any damages suffered by Landlord and arising from Tenant’s failure to
surrender the Premises as provided herein, Tenant shall pay to Landlord on
account of use and occupancy of the Premises for each month and/or for each
portion of any month during which Tenant holds over to the Premises after the
Expiration Date, a sum equal to one (1) and one-half (1⁄2) times the aggregate of that
portion of the Fixed Rent, Escalation Rent and Rental which was payable under
this Lease during the last month of the Term for the first thirty (30) days of
such holdover and two (2) times the aggregate of that portion of the Fixed
Rent, Escalation Rent and Rental which was payable under this Lease during the
last month of the Term thereafter. Nothing herein contained shall be deemed to
permit Tenant to retain possession of the Premises after the Expiration Date or
to limit in any manner Landlord’s right to regain possession of the Premises
through summary proceedings, or otherwise, and no acceptance by Landlord of
payments from Tenant after the Expiration Date shall be deemed to be other than
on account of the amount to be paid by Tenant in accordance with the provisions
of this Article 20. Notwithstanding the foregoing, Tenant shall not be


59





deemed to be holding over on a floor that is not physically occupying,
has removed all of Tenant’s Property, and with respect to which it has
surrendered possession to Landlord if the leasing of such floor is not being
interfered with or prevented by Tenant’s holding over on any other floor in the
Premises or the First Offer Space or First Offer Storage Space, as the case may
be, and if the commencement date of the term of such floor is not delayed or
otherwise affected by such holding over on any other floor in the Premises or
the First Offer Space or First Offer Storage Space, as the case may be. The
provisions of this Article 20 shall survive the Expiration Date.


ARTICLE 21


QUIET ENJOYMENT


          Provided no
Event of Default has occurred and is continuing, Tenant may peaceably and
quietly enjoy the Premises subject, nevertheless, to the terms and conditions
of this Lease.


ARTICLE 22


FAILURE TO GIVE POSSESSION


          Except as
otherwise provided in this Lease, Landlord shall not be subject to any
liability for failure to give possession of the Premises on a timely basis to
Tenant because of the holding-over or retention of possession of the Premises
by another tenant of Landlord, or for any other reason, and the validity of
this Lease shall not be impaired under such circumstances, nor shall Landlord
be subject to any loss, damage or liability as a result thereof. Notwithstanding
the foregoing, Landlord agrees to use commercially reasonable efforts to
deliver the Premises to Tenant in a timely manner and, if the Premises are
unavailable for Tenant’s occupancy because of the holding over of an existing
Tenant or occupant and if such holding over shall continue for more than thirty
(30) days, then Landlord shall commence, and diligently prosecute, a holdover
proceeding against such existing Tenant, and Landlord shall use reasonable
efforts to obtain possession of such space by prosecution or settlement of such
proceeding. Except as otherwise provided in this Lease, Tenant waives any right
to rescind this Lease under Section 223-a of the New York Real Property Law or
any successor statute of similar nature and purpose then in force and further
waives the right to recover any damages which may result from Landlord’s
failure for any reason to deliver possession of the Premises for the
commencement of the Term. The provisions of this Article are intended to
constitute an “express provision to the contrary” within the meaning of Section
223-a of the New York Real Property Law.


ARTICLE 23


NO WAIVER


          Section
23.1 No act or thing done by Landlord or Landlord’s agents during the Term
shall be deemed an acceptance of a surrender of the Premises, and no agreement
to accept such surrender shall be valid unless in writing signed by Landlord.
No employee of Landlord or of Landlord’s agents shall have any power to accept
the keys of the Premises prior to the termination of this Lease. The delivery
of keys to any employee of Landlord or of Landlord’s


60





agents shall not operate as a termination of this Lease or a surrender
of the Premises. In the event Tenant at any time desires to have Landlord
sublet the Premises for Tenant’s account, Landlord or Landlord’s agents are
authorized to receive said keys for such purpose without releasing Tenant from
any of the obligations under this Lease, and Tenant hereby relieves Landlord of
any liability for loss of or damage to any of Tenant’s effects in connection
with such subletting.


          Section
23.2 The failure of Landlord or Tenant to seek redress for violation of, or
to insist upon the strict performance of, any covenant or condition of this
Lease, or any of the Rules and Regulations set forth or hereafter adopted by
Landlord, shall not prevent a subsequent act, which would have originally
constituted a violation of the provisions of this Lease, from having all of the
force and effect of an original violation of the provisions of this Lease. The
receipt by Landlord of Fixed Rent, Escalation Rent or any other item of Rental
with knowledge of the breach of any covenant of this Lease shall not be deemed
a waiver of such breach. The failure of Landlord to enforce any of the Rules
and Regulations set forth, or hereafter adopted, against Tenant or any other
tenant in the Building shall not be deemed a waiver of any such Rules and
Regulations. No provision of this Lease shall be deemed to have been waived by
Landlord or Tenant, unless such waiver shall be in writing and signed by
Landlord or Tenant, as the case may be. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly Fixed Rent or other item of Rental
herein stipulated shall be deemed to be other than on account of the earliest
stipulated Fixed Rent or other item of Rental, or as Landlord may elect to
apply same, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as Fixed Rent or other item of Rental be
deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord’s right to recover the balance of such
Fixed Rent or other item of Rental or to pursue any other remedy provided in
this Lease. This Lease contains the entire agreement between the parties and
all prior negotiations and agreements are merged herein. Any executory
agreement hereafter made shall be ineffective to change, modify, discharge or
effect an abandonment of this Lease in whole or in part unless such executory agreement
is in writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.


ARTICLE 24


WAIVER OF TRIAL BY JURY


          THE
RESPECTIVE PARTIES HERETO SHALL AND THEY HEREBY DO WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO
AGAINST THE OTHER (EXCEPT FOR PERSONAL INJURY OR PROPERTY DAMAGE) ON ANY
MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT, TENANT’S USE OF OCCUPANCY OF THE PREMISES.
IF LANDLORD COMMENCES ANY SUMMARY PROCEEDING AGAINST TENANT, TENANT WILL NOT
INTERPOSE ANY COUNTERCLAIM OF WHATEVER NATURE OR DESCRIPTION TO ANY SUCH
PROCEEDING (UNLESS FAILURE TO IMPOSE SUCH COUNTERCLAIM WOULD PRECLUDE TENANT
FROM ASSERTING IN A SEPARATE ACTION THE CLAIM WHICH IS THE SUBJECT OF SUCH
COUNTERCLAIM), AND


61





WILL NOT SEEK TO CONSOLIDATE SUCH PROCEEDING WITH ANY OTHER ACTION
WHICH MAY HAVE BEEN OR WILL BE BROUGHT IN ANY OTHER COURT BY TENANT.


ARTICLE 25


INABILITY TO PERFORM


          Except as
otherwise specifically provided to the contrary under this Lease, this Lease
and the obligation of Tenant to pay Rental hereunder and perform all of the
other covenants and agreements hereunder on the part of Tenant to be performed
shall in no wise be affected, impaired or excused because Landlord is unable to
fulfill any of its obligations under this Lease expressly or impliedly to be
performed by Landlord or because Landlord is unable to make, or is delayed in
making any repairs, additions, alterations, improvements or decorations or is
unable to supply or is delayed in supplying any equipment or fixtures, if
Landlord is prevented or delayed from so doing by reason of strikes or labor
troubles or by accident, or by any other cause beyond Landlord’s reasonable
control, including, but not limited to, laws, governmental preemption in
connection with a national emergency or by reason of any Requirements of any
Governmental Authority or by reason of failure of the HVAC, electrical,
plumbing, or other Building Systems in the Building, or by reason of the
conditions of supply and demand which have been or are affected by war or other
emergency (“Unavoidable Delays”). Except as otherwise
specifically provided to the contrary under this Lease, Tenant shall not be in
default under this Lease because Tenant is unable to fulfill any of its
obligations under this Lease expressly or impliedly to be performed by Tenant,
or because Tenant is unable to make, or is delayed in making any repairs,
additions, alterations, improvements or decorations or is unable to supply or
is delayed in supplying any equipment or fixtures, if Tenant is prevented or
delayed from so doing by reason of Unavoidable Delays. Notwithstanding the
foregoing, (i) in no event shall a failure or inability to pay Rent or an
inability to obtain financing or lack of funds or to make any payment(s) under
this Lease be deemed an Unavoidable Delay and (ii) the party whose obligation
under this Lease is affected by an Unavoidable Delay shall give a notice to the
other party within a reasonable time after learning of its inability to perform
its obligation under this Lease, which notice shall identify the reasons for
such party’s inability to perform with reasonable specificity. Each party, to
the extent practicable, shall use commercially reasonable efforts to mitigate
the delay caused by an Unavoidable Delay; provided that neither party shall be
required to perform any work on an overtime or premium basis (except as
otherwise specifically provided to the contrary under this Lease), unless (i)
such party elects to do so within such party’s sole and absolute discretion or
(ii) the other party elects to pay for the incremental additional cost of
performing any work on an overtime or premium basis.


ARTICLE 26


BILLS AND NOTICES


          Except as
otherwise expressly provided in this Lease, any bills, statements, consents,
notices, demands, requests or other communications given or required to be
given under this Lease shall be in writing and shall be deemed sufficiently
given or rendered if delivered by hand (against a signed receipt) or nationally
recognized overnight courier service (such as Federal


62





Express) with receipt requested or if sent by registered or certified
mail (return receipt requested) addressed: (i) if to Tenant, at the address set
forth in the Reference Data initially set forth in this Lease; and (ii) if to
Landlord, at the address set forth in the Reference Data initially set forth in
this Lease, with copies to each Mortgagee and Lessor which shall have requested
same, by notice given in accordance with the provisions of Article 7 or this
Article 26 at the address designated by such Mortgagee or Lessor, or to such
other address(es) as Landlord, Tenant or any Mortgagee or Lessor may designate
as its new address(es) for such purpose by notice given to the other in
accordance with the provisions of Article 7 or this Article 26. Any such bill,
statement, consent, notice, demand, request or other communication shall be
deemed to have been rendered or given (i) on the date when it shall have been
hand delivered, if delivered before 5:00 p. m. on such date (or, if otherwise,
on the next Business Day) (ii) on the next business day if delivered via nationally
recognized overnight courier service (such as Federal Express) with receipt
requested, if delivered before 5:00 p. m. on such date (or, if otherwise, on
the next Business Day), or (iii) three (3) Business Days from when it shall
have been mailed as provided in this Article 26. Anything contained herein to
the contrary notwithstanding, any Operating Statement, Tax Statement or any
other bill, statement, consent, notice, demand, request or other communication
from Landlord to Tenant with respect to any item of Rental (other than any
“default notice” if required hereunder) may be sent to Tenant by regular United
States mail.


ARTICLE 27


ESCALATION


          Section
27.1 For the purposes of this Article 27, the following terms shall have
the meanings set forth below.


                    (A)
“Assessed Valuation” shall mean the amount for which the
Real Property is assessed pursuant to applicable provisions of the New York
City Charter and of the Administrative Code of the City of New York for the
purpose of calculating all or any portion of the Taxes payable with respect to
the Real Property.


                    (B)
“Base Operating Expenses” shall mean the Operating
Expenses for the Base Operating Year.


                    (C)
“Base Operating Year” is defined in the Reference Data initially set
forth in this Lease.


                    (D)
“Base Taxes” shall mean the Taxes payable for the Base Tax
Year.


                    (E)
“Base Tax Year” is defined in the Reference Data initially
set forth in this Lease.


                    (F)
(1) “Operating Expenses” shall mean all costs or expenses incurred for
the operation, management, cleaning, maintenance, repair and upkeep of the
Building and the Property, including, without limitation, the following: (a)
all salaries, wages, fringe benefits, payroll taxes, workmen’s compensation
insurance premiums related thereto, and uniforms and


63





working clothes and the cleaning thereof, with respect to any employees
of Landlord (or the Managing Agent of the Building) engaged in security,
management, operation and maintenance of the Property (but not above the level
of building manager) provided, however, that if any such expenses are incurred
by Landlord for the benefit of any property other than the Property, such
expenses shall be appropriately pro-rated; (b) all utilities, utility taxes and
other costs (except the cost of any electricity consumed in the Premises or any
other leasable areas of the Building) related to provision of: (i) heat
(including oil, electric, steam and/or gas) ventilation and air-conditioning to
the Building and (ii) water (including sewer charges) provided to the Building
and to tenants of the Building; (iii) electricity provided to the common,
public and service areas of the Building (provided, however, that all costs of
electricity furnished directly to tenants of the Building or any other leasable
areas of the Building shall be excluded from Operating Expenses); (iv) other
utilities provided to the Building (exclusive of the amount of reimbursement to
Landlord for any of same received as a result of direct billing to any tenant
of the Building) and (v) costs and expenses incurred in the rental of music
program services and loudspeaker systems, including furnishing electricity
thereto; (c) all costs, including materials, tools, supplies and equipment
costs, for providing cleaning and janitorial services to the Building
(including window cleaning of the Building); (d) all costs of any reasonable
insurance (including, without limitation, “all-risk”, terrorism, fire,
casualty, liability, rent loss and worker’s compensation insurance) carried by
Landlord relating to the Property; (e) all costs of maintaining and repairing
the Building and the Property (including, without limitation, removal of snow,
ice, trash and debris, landscaping, security, pest control, operation and
repair of heating and air conditioning equipment, elevators and any other
common Building equipment or systems, and expenses of repair or replacement of
paving, curbs, walkways, landscaping, pipes, ducts, conduits and similar
items), costs and expenses of inspecting and maintaining machinery and
equipment used in the operation and maintenance of the Property, depreciation
of machinery and equipment used in the operation and maintenance of the Property,
and all costs of all structural repairs and replacements (capital or
otherwise), necessary to keep the Building and Property in good working order,
repair, appearance and condition; (f) any expenditures (capital or otherwise)
(A) reasonably intended to reduce Operating Expenses or that are made in order
to comply with any Requirements enacted after the date hereof or any
interpretation, amendment to, or modification of, an existing Requirement in
implementation thereof, which interpretation, amendment or modification is
made, adopted or enacted after the date hereof, or (B) reasonably intended to
increase the security of the Building and the tenants, occupants and invitees
thereof (including without limitation, any machinery, equipment or systems installed
in connection with the Building Security Procedures); (g) payments under all
service, maintenance or management contracts, including but not limited to
elevator maintenance, window cleaning, security and energy management services;
(h) imputed cost equal to the loss of rent by Landlord for making available to
the management agent space for a Building office for an office not exceeding
three thousand (3,000) rentable square feet in size; (i) reasonable attorney’s
fees and disbursements (exclusive of any such fees and disbursements incurred
in tax abatement proceedings, the preparation or enforcement of leases or
disputes with other tenants in the Building) and reasonable auditing and other
professional fees and expenses; (j) intentionally omitted; (k) all Property
license fees; (1) Building security costs and concierge service, if any; (m)
costs of supplies and materials used in connection with the operation,
management, maintenance and repair of the Building; (n) any local or state
surcharges or special charges; (o) management fees (but not in excess of three
percent (3%) of the aggregate of all Fixed Rents and Escalation Rents


64





and similar income from the Property per annum, excluding the
management fee and excluding electricity charges with respect to leasable areas
of the Building); (p) computer software, data storage, internet connectivity
charges, telephone and facsimile charges, photocopying, postage, stationery
supplied and other materials and expenses required for the routine operation of
the Building; and (q) the cost of maintaining a messenger center in the
Building and an imputed cost equal to the loss of rent by Landlord for making
available such space for a messenger center not exceeding 2,500 rentable square
feet in area and located below the second (2nd) floor of the Building. The
foregoing provision is for definitional purposes only and shall not be
construed to impose any obligation upon Landlord to incur such Operating
Expenses. Landlord may retain independent contractors (or affiliated
contractors at market rates) to provide any services or perform any work, in
which case the costs thereof shall be deemed Operating Expenses. “Operating
Expenses”, however, shall specifically exclude the following:


	
  

 	
  

 
	
  

 	
           (i) the
 cost of electricity furnished to the Premises and to other space leased to
 tenants or to other tenantable or leasable areas of the Building;

 
	
  

 	
  

 
	
  

 	
           (ii)
 leasing commissions and the following expenses incurred in connection with
 leasing portions of the Building to other tenants: legal fees, rent
 concessions, moving allowances, and work credits and any other expenses in
 connection with procuring tenants;

 
	
  

 	
  

 
	
  

 	
           (iii)
 salaries and fringe benefits for Landlord’s executives above the grade of
 senior building manager;

 
	
  

 	
  

 
	
  

 	
           (iv)
 costs otherwise includible in Operating Expenses for which Landlord has
 received reimbursement from insurance (excluding the deductible amount if
 otherwise includible in Operating Expenses hereunder);

 
	
  

 	
  

 
	
  

 	
           (v) cost
 of repairs or replacements incurred by reason of fire or other casualty or
 condemnation, except to the extent of the deductible contained in Landlord’s
 all-risk property insurance policy provided that in no event may Landlord
 include in Operating Expenses for any Operating Year an amount which shall
 exceed fifty cents ($.50) per rentable square foot of the Building by reason
 of any deductible carried by Landlord for any one loss;

 
	
  

 	
  

 
	
  

 	
           (vi)
 advertising and promotional expenditures in connection with the leasing of
 rentable areas of the Building and any other costs incurred in procuring and
 retaining tenants, including, but not limited to, lease concessions,
 contributions to tenant work, rental assumption obligations and legal fees in
 connection with lease negotiations and litigation;

 
	
  

 	
  

 
	
  

 	
           (vii)
 Taxes and Federal, state, county or municipal income taxes, death taxes,
 excess profit taxes, franchise, estate, recording, succession, inheritance,
 gains, capital stock, excise, occupancy or rent, gift or stamp taxes or any
 other taxes imposed or measured on or by the income or revenue of Landlord
 from the operation of the Building, any transfer or mortgage recording taxes,
 and any interest, penalties or late charges imposed against Landlord in
 connection with the

 


65









	
  

 	
  

 
	
  

 	
 foregoing (provided, however, that sales taxes and similar taxes
 shall be included in Operating Expenses);

 
	
  

 	
  

 
	
  

 	
           (viii)
 costs for performing work or furnishing services to or for individual tenants
 (including Tenant) or other occupants of the Property, or allowances in lieu
 thereof, including permit, license and inspection fees related to such work
 or services, if such Tenant shall directly reimburse Landlord for such work
 or services other than any such costs which are reimbursed through escalation
 provisions similar in character to those set forth in this Article 27;

 
	
  

 	
  

 
	
  

 	
           (ix) the
 cost of any capital improvement made by Landlord except to the extent
 permitted in connection with Sections 27.1(F)(1)(e) or (f) hereof;

 
	
  

 	
  

 
	
  

 	
           (x)
 depreciation and amortization except as expressly provided above;

 
	
  

 	
  

 
	
  

 	
           (xi) debt
 service on mortgages (i.e., interest and principal payments and other debt
 costs), ground rents, and financing and refinancing costs (and costs associated
 with such financing and refinancing, including, without limitation, fees for
 obtaining approvals from or otherwise dealing or negotiating with lenders or
 providing reports and information thereto, and legal fees and disbursements
 in connection therewith) in respect of any mortgage placed on the Property or
 any portion thereof;

 
	
  

 	
  

 
	
  

 	
           (xii)
 amounts paid to affiliates of Landlord in excess of the costs for goods or
 services rendered which would be paid in an arms-length transaction absent
 such affiliation;

 
	
  

 	
  

 
	
  

 	
           (xiii)
 interest, fines, penalties or other costs to the extent due by reason of the
 late payment of Taxes or other charges which, in either case, have been
 properly billed to Landlord;

 
	
  

 	
  

 
	
  

 	
           (xiv)
 lease payments for rented equipment, the cost of which would constitute a
 capital expenditure which is not includible as an Expense if such equipment
 were purchased, provided, however, that if the cost of such rented equipment
 would be includible, if purchased, then the lease payments for same shall be
 included in Expenses to the extent that such purchase cost would be amortized
 pursuant to Sections 27.1(F)(1)(e) or (f) hereof;

 
	
  

 	
  

 
	
  

 	
           (xv) the
 cost of the acquisition or leasing of any works of fine art, other than the costs
 of maintaining, insuring and security for same;

 
	
  

 	
  

 
	
  

 	
           (xvi)
 costs for which Landlord is reimbursed under warranties or surety bonds (or
 similar items);

 
	
  

 	
  

 
	
  

 	
           (xvii)
 any costs incurred in connection with the removal or disposal of Hazardous
 Materials or any claims, losses, damages or expenses relating to Hazardous
 Materials (it being understood however, that the cost of Landlord’s

 


66









	
  

 	
  

 
	
  

 	
 maintenance of an asbestos operations and maintenance plan (i.e. a
 program of work practices and preventive maintenance intended to maintain
 asbestos-containing materials in good condition and prevent any release by
 minimizing and controlling asbestos-containing material disturbance or
 damage) may be included in Operating Expenses);

 
	
  

 	
  

 
	
  

 	
           (xviii)
 all costs and expenses of any special events (e.g., receptions, concerts) for
 which Landlord charges a fee or receives income, or with respect to which
 some tenants of the Building are not entitled to attend or participate;

 
	
  

 	
  

 
	
  

 	
           (xix)
 legal, bookkeeping, accounting and other professional fees incurred in
 connection with negotiations or disputes by Landlord, its affiliates or
 partners with lenders, superior lessors or tenants or any other occupant of
 the Building, or the filing of a petition in bankruptcy by or against
 Landlord or its Affiliates; and costs associated with the operation of the
 business of the legal entity that constitutes Landlord, as the same are
 separate and apart from the costs of the operation, maintenance, repair and
 tenant services of the Building, including, without limitation, the legal
 entity formation, internal accounting and internal legal matters;

 
	
  

 	
  

 
	
  

 	
           (xx) all
 costs and expenses resulting directly from the negligence or willful
 misconduct of Landlord, its agents, servants or employees and any damages and
 attorneys’ fees and disbursements and other costs in connection with any
 judgment, settlement or arbitration award resulting from any tort liability
 of Landlord or such other parties (except that the cost of performing any
 repair, alteration or other work which would otherwise be includible in
 Operating Expenses, to the extent included in any such judgment, settlement
 or arbitration award, shall not be excluded hereby);

 
	
  

 	
  

 
	
  

 	
           (xxi)
 costs incurred due to the violation by Landlord or any tenant of the Building
 (1) of the terms of any lease or any laws, rules, regulations or ordinances
 applicable to the Building or (2) of instruments of record affecting the
 Building;

 
	
  

 	
  

 
	
  

 	
           (xxii)
 illegal payments;

 
	
  

 	
  

 
	
  

 	
           (xxiii)
 all costs and expenses of providing any above-standard service to any tenant
 or occupant of, or to any leasable space in, the Building, e.g., overtime
 HVAC, supplemental chilled or condenser water, extra cleaning, or overtime elevator
 service, or any other service (or level or amount of any such service)
 materially in excess of that required by the Lease to be provided to Tenant
 free of separate or additional charge;

 
	
  

 	
  

 
	
  

 	
           (xxiv)
 all rents and additional rents under any Superior Leases and mortgage
 payments to Mortgagees and costs incurred with respect to the execution or
 modification of any other Superior Lease (including, without limitation, fees
 for obtaining approvals from or otherwise dealing or negotiating

 


67









	
  

 	
  

 
	
  

 	
 with Lessors or providing reports and information thereto or thereof
 and legal fees and disbursements in connection therewith);

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (xxvi)
 all costs and expenses of taking over or assuming the lease obligations of a
 tenant in another building and the costs and expenses of relocating such
 tenant to the Building, including any payments required to be made in
 connection with the termination of a lease pursuant to Article 31-B of the
 Tax Law of the State of New York or other similar statute;

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (xxviii)
 any costs and operating expenses related to those portions of the Building
 that are leased or leasable for retail, garage or concession purposes (other
 than costs and operating expenses associated with sidewalk cleaning and snow
 and ice removal and the supply of heat to such portions of the Building in
 order to prevent the freezing of pipes during the winter season);

 
	
  

 	
  

 
	
  

 	
           (xxix) to
 the extent any costs that are otherwise includable in Operating Expenses are
 incurred by or on behalf of Landlord and any Affiliate of Landlord with
 respect to both the Building and any other buildings owned by Landlord or its
 Affiliate(s), there shall be excluded from Operating Expenses a fair and
 reasonable percentage thereof that is properly allocable to such other
 properties;

 
	
  

 	
  

 
	
  

 	
           (xxx) the
 cost of correcting defects in the original construction of Landlord’s Work,
 or in the original construction or installation of any Building equipment or
 Building Systems, or any other facilities located at the Building, only to
 the extent the same are discovered or corrected within twelve (12) months
 from the substantial completion or installation thereof;

 
	
  

 	
  

 
	
  

 	
           (xxxi)
 the cost of the construction of any additional space resulting in an increase
 in the rentable square footage of building in or to the Building and any
 costs arising therefrom (including, without limitation, increased Tax
 Payments and Operating Expenses);

 
	
  

 	
  

 
	
  

 	
           (xxxii)
 costs incurred with respect to a sale of all or any portion of the Building
 or any interest therein or in any person or entity of whatever tier owning an
 interest therein and the cost of maintaining, organizing or reorganizing the
 entity that is the Landlord under this Lease;

 
	
  

 	
  

 
	
  

 	
           (xxxiii)
 the cost of operating and maintaining special facilities in the Building,
 such as an observatory, broadcasting facility, tourism booth or center,
 theater, auditorium, luncheon club, athletic or recreational club, child care
 or similar facility, cafeteria or dining facility, if any such facility is
 operated by

 


68









	
  

 	
  

 
	
  

 	
 Landlord (unless such facility is made available to tenants of the
 Building generally without charge and Tenant elects to use such facilities,
 in which event such operating and maintenance costs may be included in
 Operating Expenses, net of any income collected by Landlord from the use of
 such facilities by tenants and others);

 
	
  

 	
  

 
	
  

 	
           (xxxiv)
 any interest, fine, penalty or other late charge payable by Landlord or any
 increase in insurance premium resulting from Landlord’s violation of any
 legal requirements or insurance requirement;

 
	
  

 	
  

 
	
  

 	
           (xxxv)
 costs and expenses incurred by Landlord in connection with any obligation of
 Landlord to indemnify any Tenant or other person or entity in the Building
 pursuant to its lease or otherwise;

 
	
  

 	
  

 
	
  

 	
           (xxxvi)
 Landlord’s contributions or payments to charities, civic organizations, and
 not for profit entities (other than business improvement district
 corporations or quasi-governmental corporations to the extent such payments
 may be properly included in “Taxes” under Section 27.1(I) of this
 Lease);

 
	
  

 	
  

 
	
  

 	
           (xxxvii)
 any lease payments for equipment which, if purchased, would be specifically
 excluded as a capital improvement to the extent of such exclusion;

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (xxxix)
 Landlord’s general corporate overhead and general and administrative
 expenses;

 
	
  

 	
  

 
	
  

 	
           (xl)
 costs incurred in connection with services or other benefits of a type that
 are not provided to Tenant but that are provided to another tenant or
 occupant of the Building;

 
	
  

 	
  

 
	
  

 	
           (xli)
 costs for sculptures, paintings and other objects of art located within or
 outside the Building, except only for the costs of maintaining such objects
 in the common areas of the Building;

 
	
  

 	
  

 
	
  

 	
           (xlii)
 costs incurred in connection with making any additions to or building
 additional stories on the Building or its plazas, or adding buildings or
 other structures adjoining the Building; and

 
	
  

 	
  

 
	
  

 	
           (xliii)
 any other costs not properly includible as Operating Expenses in accordance
 with GAAP.

 


If during any Operating Year (including the Base Operating Year) (i)
any rentable space in the Building (other than any retail space in the Building
which is not included in the denominator used to calculate Tenant’s Share)
shall be vacant or unoccupied and/or (ii) the tenant or occupant


69






of any space in the Building undertook to perform work or services
therein in lieu of having such work performed by or on behalf of Landlord (or
such tenant or occupant was not entitled to receive the same) and the cost
thereof would have been included in Operating Expenses, then, in any such
event(s), the Operating Expenses for such period (including the Base Operating
Year) shall be adjusted to reflect the Operating Expenses that reasonably would
have been incurred if such space had been occupied or if such work or services
had been performed by or on behalf of Landlord, as the case may be. The
provisions of this Section 27.1 with respect to adjustments of Operating
Expenses for vacancy shall apply only to Operating Expenses which are variable
and which increase in the same relationship to the increase in occupancy in the
Building and shall not apply to any Operating Expenses which do not vary with
the level of occupancy in the Building. Further, for purposes of calculating
the Operating Expenses for the Base Operating Year, and any subsequent
Operating Year, any Operating Expense that is based on the rent for the
Building (by way of example only, a management fee) shall be calculated, with
respect to the Base Operating Year, as if Tenant paid rent during the free rent
period; and, shall be calculated, with respect to any subsequent Operating
Year, as if rent was paid on any leasable space in the Building, regardless of
any vacancy or abatement of rent applicable to any tenant during such
subsequent Operating Year (including Tenant) of such leasable space, at the
actual rental or, if such leasable space is vacant, such rental shall be deemed
to be charged at the rental rate at which Landlord is then offering to rent
such leasable space. Any insurance proceeds received with respect to any item
previously included as an Operating Expense shall be deducted from Operating
Expenses for the Operating Year to which such proceeds are received; provided,
however, to the extent any insurance proceeds are received by Landlord in any
Operating Year with respect to any item which was included to Operating
Expenses during the Base Operating Year, the amount of insurance proceeds so
received shall be deducted from Base Operating Expenses and (x) the Base
Operating Expenses shall be retroactively adjusted to reflect such deduction
and (y) all retroactive Operating Payments resulting from such retroactive
adjustment shall be due and payable when billed by Landlord. Except to the
extent that the electricity supplied to each floor of the Building and the
common and public areas of the Building (including, without limitation, the
Building Systems) shall be separately metered or submetered, Operating Expenses
shall include an amount equal to (x) Landlord’s average cost per kilowatt hour
(utilizing the electrical rates applicable to the Building including energy
charges, demand charges, time-of-day charges, fuel adjustment charges, rate
adjustment charges, sales tax and any other factors used by the public utility
in computing its charges to Landlord) of furnishing electric current to the
entire Building, multiplied by (y) the number of kilowatt hours of electric
current furnished to the public and common areas of the Building (including,
without limitation, the Building Systems) as determined by a survey
prepared by an independent, reputable electrical engineer selected by Landlord.


                              (2)
In determining the amount of Operating Expenses for any Operating Year
(including the Base Operating Year) if less than ninety-five percent (95%) of
the Building rentable area shall have been occupied by tenant(s) at any time
during any such Operating Year, Operating Expenses shall be determined for such
Operating Year to be an amount equal to ninety-five percent (95%) of the
Operating Expenses which would normally be expected to be incurred had all such
areas been occupied throughout such Operating Year.


70





                              (3)
(i) Except as provided in clause (ii) of this Subsection (3), if any capital
improvement permitted under Section 27.1(F)(1)(e) or Section 27.1(F)(1)(f) is
made during any Operating Year (including the Base Operating Year), then the
cost of such improvement shall be included in Operating Expenses for the
Operating Year in which such improvement was made; provided, however, to the
extent the cost of such improvement is required to be capitalized in accordance
with GAAP, such cost shall be amortized over the useful economic life of such
improvement in accordance with GAAP, and the annual amortization amount (the “Annual
Amortization Amount”), together with interest thereon at the then Base
Rate, of such improvement shall be deemed an Operating Expense in each of the
Operating Years during which such cost of the improvement is amortized.


	
  

 	
  

 
	
  

 	
           (ii) If
 any capital improvement is made during any Operating Year, including the Base
 Operating Year, either for the purpose of saving or reducing Operating
 Expenses (as, for example, a labor-saving improvement), then the cost of such
 improvement shall be included in Operating Expenses for the Operating Year in
 which such improvement was made and each subsequent Operating Year on a
 straight-line basis, to the extent that such improvement is amortized over
 its useful life determined in accordance with GAAP, together with interest
 thereon at the then Base Rate; provided, however, that the maximum amount
 that may be included in Operating Expenses for any Operating Year for such
 capital improvement shall be the amount of savings realized in such Operating
 Year by such improvement.

 


                    (G)
“Operating Statement” shall mean a statement setting forth a comparison
of the Operating Expenses for an Operating Year with the Base Operating Expenses
and the Escalation Rent for the preceding Operating Year pursuant to the
provisions of this Article 27.


                    (H)
“Operating Year” shall mean the calendar year within which the
Commencement Date occurs and each subsequent calendar year for any part or all
of which Escalation Rent shall be payable pursuant to this Article 27.


                    (I)
“Taxes” shall mean the aggregate amount of real estate taxes and any
general or special assessments (exclusive of penalties and interest thereon)
imposed upon the Real Property (including, without limitation, (i) assessments
made upon or with respect to any “air” and “development” rights now or
hereafter appurtenant to or affecting the Real Property, (ii) any fee, tax or
charge imposed by any Governmental Authority for any vaults, vault space or
other space within or outside the boundaries of the Real Property, (iii) any
taxes or assessments levied after the date of this Lease in whole or in part
for public benefit, to the Real Property or the Building, including, without
limitation, any Business Improvement District taxes and assessments) and (iv)
the customary fees, costs and expenses of attorneys, appraisers, consultants,
expert witnesses (and the cost of transcripts, printing of briefs and records,
copying, and other reimbursable expenses charged by any of the foregoing) paid
or incurred by Landlord to contest (or defend against) any Taxes. Taxes shall
be computed without taking into account any discount that Landlord may receive
by virtue of any early payment of Taxes, provided, that if because of any
change to the taxation of real estate, any other tax or assessment, however
denominated (including, without limitation, any franchise, income, profit,
sales, use, occupancy, gross receipts or rental tax) is imposed upon Landlord
or the owner of the Real Property or the


71





Building, or the occupancy, rents or income therefrom, to substitution
for any of the foregoing Taxes, such other tax or assessment shall be deemed
part of Taxes computed as if Landlord’s sole asset was the Real Property.
Anything contained herein to the contrary notwithstanding: (i) Taxes shall not
be deemed to include any of the following: (A) any taxes on Landlord’s income,
(B) franchise taxes, (C) estate or inheritance taxes (D) late fees or penalties
imposed on Landlord for late payment of Taxes or (E) any similar taxes imposed
on Landlord, unless such taxes are levied, assessed or imposed in lieu of or as
a substitute for the whole or any part of the taxes, assessments, levies,
impositions which now constitute Taxes; and, additionally (ii) for the purposes
of this Article 27, Taxes (including the Base Taxes) shall be calculated taking
into account any exemption which Landlord may receive pursuant to the ICIP
Program (as said term is hereinafter defined) to the extent, and for the
duration, of such exemption.


                    (J)
“Tax Statement” shall mean a statement setting forth a comparison of the Taxes
for a Tax Year with the Base Taxes.


                    (K)
“Tax Year” shall mean the period July 1 through June 30 (or such other period
as hereinafter may be duly adopted by the Governmental Authority then imposing
taxes as its fiscal year for real estate tax purposes), any portion of which
occurs during the Term.


          Section
27.2 (A) If the Taxes payable for any Tax Year (any part or all of which
falls within the Term) shall represent an increase above the Base Taxes, then
Tenant shall pay as additional rent for such Tax Year and continuing thereafter
until a new Tax Statement is rendered to Tenant, Tenant’s Tax Share of such
increase (the “Tax Payment”) as shown on the Tax Statement with respect
to such Tax Year. Tenant shall be obligated to pay the Tax Payment regardless
of whether Tenant is exempt in whole or part, from the payment of any Taxes by
reason of Tenant’s diplomatic status or for any other reason whatsoever. The
Taxes shall be computed initially on the basis of the Assessed Valuation in
effect at the time the Tax Statement is rendered (as the Taxes may have been
settled or finally adjudicated prior to such time) regardless of any then
pending application, proceeding or appeal respecting the reduction of any such
Assessed Valuation, but shall be subject to subsequent adjustment as provided
in Section 27.3 hereof. Tenant shall have no obligation to make any Tax Payment
with respect to any period prior to the Rent Commencement Date.


                    (B)
With respect to any period after the Rent Commencement Date during the Term,
Landlord may render to Tenant a Tax Statement or Statements showing (i) a
comparison of the Taxes payable for the Tax Year with the Base Taxes and (ii)
the amount of the Tax Payment resulting from such comparison. On the first day
of the month following the furnishing to Tenant of a Tax Statement, Tenant
shall pay to Landlord a sum equal to 1/12th of the Tax Payment shown thereon to
be due for such Tax Year multiplied by the number of months of the Term then
elapsed since the commencement of such Tax Year. Tenant shall continue to pay
to Landlord a sum equal to one-twelfth (1/12th) of the Tax Payment shown on
such Tax Statement on the first day of each succeeding month until the first
day of the month following the month in which Landlord shall deliver to Tenant
a new Tax Statement. If Landlord furnishes a Tax Statement for a new Tax Year
subsequent to the commencement thereof, promptly after the new Tax Statement is
furnished to Tenant, Landlord shall give notice to Tenant stating whether the
amount previously paid by Tenant to Landlord for the current Tax Year was
greater or less than the installments of the Tax Payment for the current Tax
Year in accordance with the Tax


72





Statement, and (a) if there shall be a deficiency, Tenant shall pay the
amount thereof within ten (10) days after demand therefor, or (b) if there
shall have been an overpayment, Landlord shall credit the amount thereof
against the next monthly installments of the Fixed Rent payable under this
Lease. Landlord’s failure to render a Tax Statement shall not prejudice
Landlord’s right to render a Tax Statement during or with respect to any
subsequent Tax Year, and shall not eliminate or reduce Tenant’s obligation to
make Tax Payments for such Tax Year except as provided in the next succeeding
sentences. Tenant’s obligation to pay any such deficiency shall survive the
expiration of a Tax Year for a period of twenty-four (24) months after the end
of such Tax Year unless Landlord has reasonably demonstrated to Tenant that any
such failure is attributable to the failure of the City of New York to supply
information necessary for Landlord to prepare any such statement or to a
continuing tax claim, protest or compromise. In the event Landlord shall render
such Tax Statement as provided in this Article, Tenant shall pay to Landlord
any deficiency set forth on such statement within thirty (30) days after the
rendering of such Tax Statement by Landlord.


                    (C)
(1) For purposes of this Section 27.2(C), unless otherwise defined in this
Lease, all terms used herein shall have the meanings ascribed to them in
Sections 11-256 through 11-267 of the Administrative Code of the City of New
York, authorized by Title 2-D of Article 4 of the New York Real Property Tax
Law and all rules and regulations promulgated thereunder (herein collectively
called the “ICIP Program”).


                    (2)
Landlord is seeking the benefits and entitlements provided by Section 489-bbbb,
Subdivision 5 of the ICIP Program. Landlord will receive the benefits and
entitlements provided by Section 489-bbbb Subdivision 5a of the ICIP Program as
renovation construction work.


                    (3)
In accordance with Sections 489-dddd Subdivision 1, and 489-eeee, Subdivision 1
of the ICIP Program, Tenant agrees to comply with the ICIP Program, which
compliance shall be to at least the same extent that Landlord is obligated to
comply with the ICIP Program.


                    (4)
In addition, Tenant shall satisfy, on a timely basis, all other applicable
requirements of the ICIP Program including, without limitation, the
requirements of Section 489-dddd Subdivision 1 of the ICIP Program; and Tenant
shall, from time to time, upon Landlord’s request, certify to Landlord pursuant
to this Section that Tenant has timely complied with the applicable requirements
of the ICIP Program.


                    (5)
(i) Tenant acknowledges that the ICIP Program may impose certain requirements
with respect to the hiring and training practices, among other matters, of
contractors and subcontractors engaged to perform certain work in the Building
for Landlord or tenants of the Building. Accordingly, in order to ensure that
no actions taken by contractors or subcontractors of Tenant (collectively
referred to in this Section 27.2(C) as “Tenant’s Contractors”) cause
Landlord to lose the benefits conferred by the ICIP Program, Tenant shall, to
the extent required by the ICIP Program, use only such Tenant’s Contractors
that qualify under the applicable requirements of the ICIP Program in
connection with the performance of Tenant’s Initial Alterations, and the
performance of any subsequent Alterations in the Premises performed during the
period commencing on the effective date of the “Certificate of Eligibility” for
the


73





Property and continuing for three (3) subsequent Tax Years thereafter
(herein called “Subsequent Alteration Work”).


	
  

 	
  

 
	
  

 	
           (ii) (1)
 To the extent required by the ICIP Program, any construction contracts
 entered into by Tenant and any Tenant’s Contractors shall require Tenant’s
 Contractors to perform any Initial Alterations and any other Alterations in
 compliance with the provisions of the ICIP Program, including without
 limitation, any provisions that require the filing of periodic reports by
 Tenant’s Contractors with Landlord, the Department of Finance and/or the
 Division of Labor Services (such provisions are herein referred to as the “ICIP
 Covenants”). If Landlord or Tenant is notified of any violation by
 Tenant’s Contractors of the ICIP Program, Landlord shall promptly advise
 Tenant, and Tenant will promptly exert commercially reasonable efforts to
 cause Tenant’s contractors to cure such violations but Tenant shall have no
 liability if, despite its endeavors, it shall be unable to cause Tenant’s
 contractors to cure such violations. Additionally, if Tenant is an
 “applicant” under the ICIP Program, Tenant (as distinguished from Tenant’s
 Contractors) may be required to attend meetings with, or file reports
 directly or indirectly with, the City of New York, or City of New York’s
 Division of Labor Services (herein called “DLS Meetings”).

 
	
  

 	
  

 
	
  

 	
                     (2)
 Reporting requirements under the ICIP Program may include, but not be limited
 to, the following reporting requirements:

 






	
  

 	
  

 
	
  

 	
                     1.
 Report the number of permanent employees who occupy or will occupy the
 Premises;

 
	
  

 	
  

 
	
  

 	
                     2.
 Report the number of those employees who are City residents;

 
	
  

 	
  

 
	
  

 	
                     3.
 Report the use of the Premises for commercial purposes;

 
	
  

 	
  

 
	
  

 	
                     4.
 provide access to the Premises by employees and agents of any governmental
 agency enforcing the ICIP Program (including, without limitation, the New
 York City Department of Finance) at all reasonable times upon reasonable
 notice when requested by Landlord, provided that such employees and agent may
 be accompanied by a tenant representative during such access, provided that
 Tenant makes such representative available.

 


          Section
27.3 (A) Only Landlord shall be eligible to institute tax reduction or
other proceedings to reduce the Assessed Valuation. In the event that, after a
Tax Statement has been sent to Tenant, an Assessed Valuation which had been
utilized in computing the Taxes for a Tax Year is reduced (as a result of
settlement, final determination of legal proceedings or otherwise), and as a
result thereof a refund of Taxes is actually received by or on behalf of
Landlord, then, promptly after receipt of such refund, Landlord shall send
Tenant a Tax Statement adjusting the Taxes for such Tax Year and setting forth
Tenant’s Tax Share of such refund, and Tenant shall


74





be entitled to receive such Share, at Landlord’s option, either by way
of a credit against the Fixed Rent next becoming due after the sending of such
Tax Statement or by a prompt refund to the extent no further Fixed Rent is due;
provided, however, that Tenant’s Tax Share of such refund shall be limited to
the portion of the Tax Payment, if any, which Tenant had theretofore paid to
Landlord attributable to increases in Taxes for the Tax Year to which the
refund is applicable on the basis of the Assessed Valuation before it had been
reduced. Landlord shall not settle in such a manner to discriminate against
Tenant. Landlord hereby represents that Taxes assessed in respect of the
following Tax Years are currently being contested or compromised by Landlord:
(i) the Tax Year beginning on July 1, 2004 and ending on June 30, 2005; and
(ii) the Tax Year beginning on July 1, 2005 and ending on June 30, 2006.
Additionally, upon information and belief, Landlord represents that the prior
owner of the Property is contesting Taxes for certain Tax Years preceding the
Tax Year beginning on July 1, 2004 and ending on June 30, 2005.


                    (B)
In the event that, after a Tax Statement has been sent to Tenant, the Assessed
Valuation which had been utilized in computing the Base Taxes is reduced (as a
result of settlement, final determination of legal proceedings or otherwise)
then, and in such event: (i) the Base Taxes shall be retroactively adjusted to
reflect such reduction, and (ii) all retroactive Tax Payments resulting from
such retroactive adjustment shall be due and payable when billed by Landlord.
Landlord promptly shall send to Tenant a statement setting forth the basis for
such retroactive adjustment and Tax Payments; and Tenant’s obligation to make
any payment required as a result of such retroactive adjustment shall be
subject to the limitation on the time for the rendering of Tax Statements set
forth in Section 27.2(B).


          Section
27.4 (A) Effective as of the Rent Commencement Date, if the Operating
Expenses for any Operating Year (any part or all of which falls within the
Term) shall be greater than the Base Operating Expenses, then Tenant shall pay
as additional rent for such Operating Year and continuing thereafter until a
new Operating Statement is rendered to Tenant, Tenant’s Share of such increase
(the “Operating Payment”) as hereinafter provided. Tenant shall have no
obligation to pay any Operating Payment with respect to any period prior to the
Rent Commencement Date.


                    (B)
(1) Landlord may give Tenant a written statement for each Operating Year
setting forth Landlord’s reasonable estimate of the Operating Payment for such
Operating Year (“Landlord’s Estimate”).


                              (2)
Tenant shall pay Landlord an amount equal to one-twelfth (1/12) of Landlord’s
Estimate on the first day of each and every month during the Operating Year
(provided, however, that if Landlord’s Estimate shall exceed the actual Operating
Expenses for the preceding year by more than seven percent (7%), then Tenant
shall not be obligated to pay such excess at such time unless such excess is
attributable to estimated increases in Operating Expenses reasonably known to
Landlord and of which Tenant shall have been notified). If Landlord delivers
Landlord’s Estimate after an Operating Year begins then: (a) until the first
day of the month after the month in which Tenant receives Landlord’s Estimate,
Tenant shall pay Landlord an amount equal to the monthly sum payable by Tenant
under this Section for the last month of the preceding Operating Year; and on
the first day of the month following the month in which Tenant receives
Landlord’s Estimate (and monthly thereafter for the balance of such Operating
Year), Tenant shall pay Landlord an amount equal to one twelfth (1/12) of
Landlord’s


75





Estimate. If Tenant’s previous payments for the Operating Year were
more or less than the amounts which Tenant should have paid pursuant to
Landlord’s Estimate, Tenant shall pay any underpayment within ten (10) days
after receiving Landlord’s Estimate, or Tenant shall receive a credit for any
overpayment against subsequent payments. Landlord may revise Landlord’s
Estimate for a particular Operating Year (but not more often than three times
as to any Operating Year). In such event, the Operating Payment for such
Operating Year shall be adjusted and paid or credited, as applicable, as
specified in this Section 27.4.


                    (C)
At any time during or after the Term Landlord may render to Tenant an Operating
Statement or Statements showing (i) a comparison of the Operating Expenses for
the Operating Year in question with the Base Operating Expenses, and (ii) the
amount of the Operating Payment resulting from such comparison. Landlord’s
failure to render an Operating Statement during or with respect to any
Operating Year in question shall not prejudice Landlord’s right to render an
Operating Statement during or with respect to any subsequent Operating Year,
and shall not eliminate or reduce Tenant’s obligation to make payments of the
Operating Payment pursuant to this Article 27 for such Operating Year, except
as provided in the next succeeding sentence. Tenant’s obligation to pay any
such deficiency shall survive the expiration of an Operating Year for a period
of twenty-four (24) months after the end of such Operating Year. In the event
Landlord shall render such Operating Statement, as provided in this Article,
Tenant shall pay to Landlord any deficiency set forth on such statement within
thirty (30) days of the rendering of such Operating Statement by Landlord.


                    (D)
After the end of each Operating Year Landlord shall submit to Tenant an
Operating Statement prepared by Landlord and certified by Landlord as being
accurate to the knowledge of Landlord and consistent with the terms of this
Lease, setting forth a comparison of the Operating Expenses for the preceding
Operating Year with the Base Operating Expenses and the Operating Payments paid
by Tenant with respect to such preceding Operating Year pursuant to the
provisions of this Article 27 and the balance of any Operating Payment due from
Tenant with respect to such preceding Operating Year. Upon Tenant’s request,
Landlord shall provide to Tenant a reasonably detailed breakdown of the major
categories of expenses (such as supplies and purchases, repairs and
replacements, salaries and related expenses, services and operations,
maintenance, administrative, office, insurance, management fees, utilities,
taxes and payments to Affiliates of Landlord) reflected in the Operating
Statement furnished to Tenant under this Section. If Tenant’s Operating
Payments under Section 27.4(B)(2) have exceeded the Operating Payment due with
respect to the preceding Operating Year, Tenant shall receive a credit for such
excess against subsequent payments under this Section 27.4. If Tenant’s
Operating Payments under Section 27.4(B)(2) were less than Operating Payment
due with respect to the preceding Operating Year, Tenant shall pay Landlord
such deficiency within thirty (30) days after receipt of the Operating
Statement. Any Operating Payment shall be collectible by Landlord in the same
manner as Fixed Rent.


          Section
27.5 Each Operating Statement delivered to Tenant shall be conclusively
binding upon Tenant unless, within one hundred eighty (180) days after such
Statement is sent to Tenant, Tenant shall send a written notice to Landlord
objecting to such Statement. If such notice is sent, Tenant (together with its
independent certified public accountant, (who may be an employee of Tenant),
which is not being compensated, in whole or in part, on a contingency


76





basis) may examine Landlord’s books and records relating to the
Operation of the Property to determine the accuracy of the Operating Statement.
At the time Tenant first elects to review Landlord’s books and records relating
to an Operating Statement for any Operating Year, Tenant may also elect to
review Landlord’s books and records relative to the Base Operating Expenses,
provided that such review must be completed within sixty (60) days after
Landlord first permits Tenant and its representatives access to Landlord’s
books and records. Landlord shall make all books and records relative to the subject
Operating Expenses and, solely with respect to the time that Tenant first
elects to review Landlord’s books and records, the Base Operating Expenses,
available to Tenant in connection with such review promptly after Tenant’s
request and on a continuous basis during Business Hours on Business Days if
requested by Tenant or its representatives. Tenant recognizes the confidential
nature of such books and records and agrees to maintain the information
obtained from such examination in confidence. If after such examination, Tenant
disputes such Operating Statement, Tenant shall give Landlord notice (the “Operating
Dispute Notice”) that Tenant disputes the correctness of the Operating
Statement the parties shall meet in good faith and attempt to resolve their
dispute and Tenant shall give Landlord reasonable opportunity to substantiate
the accuracy of the Statement being disputed by Tenant. If Landlord and Tenant
do not agree to resolve any dispute with respect to Tenant’s written exception
within thirty (30) days after Tenant’s Operating Dispute Notice shall have been
given to Landlord, the parties shall submit the dispute to binding arbitration
before a reputable firm of independent CPA’s chosen jointly by Landlord and
Tenant to be paid for equally by Landlord and Tenant except that if the
arbitrator’s award finds that Landlord overstated Operating Expenses payable by
Tenant by more than four and one-half percent (4.5%), then Landlord shall be
responsible for the fees of the arbitrator and the reasonable charges incurred
by Tenant to audit Landlord’s books and records (exclusive of any legal fees
and disbursements, if any, incurred by Tenant, which shall be borne by Tenant).
Tenant agrees that, notwithstanding any such dispute (and pending resolution
thereof), Tenant shall timely pay to Landlord in full the amount shown to be
due to Landlord on the disputed Operating Statement. If, in the resolution of
such dispute it shall be determined that Tenant shall have made an overpayment,
Landlord shall, (i) within thirty (30) days after resolution of such dispute,
refund to Tenant the amount of Tenant’s overpayment and (ii) if the arbitrator
finds that Landlord overstated Operating Expenses payable by Tenant by more
than four and one-half percent (4.5%), within thirty (30) days after rendition
of a bill therefor, reimburse Tenant for the reasonable charges incurred by
Tenant to audit Landlord’s books and records (exclusive of any legal fees and
disbursements, if any, incurred by Tenant, which shall be borne by Tenant). If
Landlord fails to refund such overpayment and/or reimburse such charges to
Tenant within such thirty (30) day periods, as applicable, Tenant shall have
the right after not less than ten (10) Business Day’s notice to Landlord, to
offset against Operating Expenses, the amount of such overpayment and the
amount of such charges with interest at the Applicable Rate from the dates such
overpayment and the amount of such charges were paid by Tenant until fully
recovered by Tenant. If the resolution of such dispute shall include a
determination that Tenant has made an underpayment in any Operating Expense
payment, then Tenant shall pay to Landlord the amount of any such underpayment
within thirty (30) days after resolution of such dispute.


          Section
27.6 The expiration or termination of this Lease during any Operating Year
or Tax Year shall not affect the rights or obligations of the parties hereto
respecting any payments of Operating Payments for such Operating Year and any
payments of Tax Payments for such Tax


77





Year, and any Operating Statement relating to such Operating Payment
and any Tax Statement relating to such Tax Payment, may be sent to Tenant
subsequent to, and all such rights and obligations shall survive, any such
expiration or termination, except to the extent otherwise provided in this
Article 27. In determining the amount of the Operating Payment for the
Operating Year or the Tax Payment for the Tax Year in which the Term shall
expire, the payment of the Operating Payment for such Operating Year or the Tax
Payment for the Tax Year shall be prorated based on the number of days of the
Term which fall within such Operating Year or Tax Year, as the case may be. Any
payments due under such Operating Statement or Tax Statement shall be payable within
thirty (30) days after such Statement is sent to Tenant.


ARTICLE 28


SERVICES


          Section
28.1 (A) Passenger Elevator. Landlord shall provide passenger
elevator service to the Premises on Business Days from 8:00 A.M. to 6:00 P.M.
and have an elevator serving the Premises subject to call at all other times.
Landlord shall cause the elevators to be operated in a manner comparable to
elevators in similar buildings.


                    (B)
Freight Elevator. There shall be one (1) freight elevator serving the
Premises and the entire Building on call on a “first come, first served” basis
on Business Days from 8:00 A.M. to 12:00 P.M. and from 2:00 P.M. to 5:00 P.M.,
and on a reservation, “first come, first served” basis from 12:00 P.M. to 2:00
P.M. and 5:00 P.M. to 8:00 A.M. on Business Days and at any time on days other
than Business Days. If Tenant shall use the freight elevators serving the
Premises between 12:00 P.M. to 2:00 P.M. and 5:00 P.M. and 8:00 A.M. on
Business Days or at any time on any other days, Tenant shall pay Landlord, as
additional rent for such use, the standard rates then fixed by Landlord for the
Building, or if no such rates are then fixed, at reasonable rates.
Notwithstanding anything to the contrary contained in this Lease, Landlord
shall make available to Tenant, in accordance with Landlord’s Rules and
Regulations applicable thereto (i) at no cost to Tenant, thirty (30) hours of
overtime freight elevator service in connection with Tenant’s Initial
Alterations and initial move into the Premises for the conduct of its business;
and (ii) at a cost equal to $45.00 per hour in excess of such thirty (30) free
hours, overtime freight elevator service during the period commencing on the
Commencement Date and ending on the date which is the later to occur of (x) the
date that Tenant’s Initial Alterations are substantially completed or (y) the
240th day next following the date on which Tenant shall have substantially
completed all of Landlord’s Pre-Commencement Date Work. Landlord shall not be
required to furnish any freight elevator services during the hours from 12:00
P.M. to 2:00 P.M. and 5:00 P.M. to 8:00 A.M. on Business Days and at any time
on days other than Business Days unless Landlord has received advance notice
from Tenant requesting such services prior to 2:00 P.M. of the day upon which
such service is requested or by 2:00 P.M. of the last preceding Business Day if
such periods are to occur on a day other than a Business Day.


          Section
28.2 Heat; VAC. Commencing on May 31, 2006, Landlord, at Landlord’s
expense (but subject to recoupment pursuant to Article 27 hereof), shall
furnish heat to the perimeter of the Premises through the Building’s perimeter
radiators as required for the comfortable occupancy of the Premises during Business
Hours on Business Days. The heat furnished by Landlord through the Building’s
perimeter radiators shall be capable of maintaining


78





an interior temperature of 70 degrees Fahrenheit with winter outdoor
conditions of 11 degrees Fahrenheit. Additionally, Landlord shall construct, as
part of Landlord’s Work, new mechanical equipment rooms within the Premises at
locations reasonably selected by Landlord (which locations shall be similar to
the location of mechanical equipment rooms on other floors of the Building) and
install, as a part of Landlord’s Work, new Mammoth (or, if a Mammoth brand unit
is unavailable, an equivalent or better manufacturer) package, water cooled DX,
VAV air conditioning units for use by Tenant (such package VAC units shall be referred
to herein as the “Tenant VAC Units”); and, commencing on May 31, 2006,
Landlord shall provide the condenser water (subject to recoupment pursuant to
Article 27 hereof) necessary to operate the Tenant VAC Units as required for
the comfortable occupancy of the Premises during Business Hours on Business
Days during each year of the Term. The Tenant VAC Units shall be capable of
performing in accordance with the specifications set forth in Exhibit G
annexed hereto and made a part hereof and shall provide 178 tons of aggregate
cooling capacity (subject to the design criteria, including occupancy and
connected load design criteria set forth in Exhibit G to this Lease).
Tenant shall be solely responsible for the installation of all ductwork and
diffusers necessary for the distribution of heating ventilation and cooling in
the Premises as part of Tenant’s Initial Alterations. Tenant, at the Tenant’s
sole expense, shall operate the Tenant VAC Units to provide such ventilation
and air-conditioning as Tenant shall require; however, Landlord shall be
responsible for maintaining the Tenant VAC Units in working order. Tenant shall
draw and close the draperies or blinds for the windows of the Premises whenever
the Tenant VAC Units are in operation and the position of the sun so requires,
and shall at all times cooperate fully with Landlord and abide by all of the
regulations and requirements which Landlord or the manufacturer may prescribe
for the proper functioning and protection of the Tenant VAC Units. Nothing contained
herein shall be deemed to require Landlord to furnish, at Landlord’s expense,
such electric energy as is required to operate the VAC Units serving the
Premises; and all such electric energy shall be redistributed to Tenant by
Landlord at Tenant’s sole cost and expense and measured by submeters installed
and maintained by Landlord at its cost. Landlord shall, at its sole cost and
expense, be responsible for maintaining the submeters installed by Landlord to
measure Tenant’s consumption of electricity in the Premises. Tenant shall pay
for the consumption of electricity reflected on such meters in accordance with
Article 13 of this Lease. Notwithstanding the foregoing, Landlord agrees that
if, at any time during the Term of this Lease, Landlord enters into any
Comparable Lease with any other tenant for space in the Building which provides
that Landlord shall pay the cost of electricity to operate VAC Units comparable
to the VAC Units provided to Tenant during Business Hours on Business Days
then, from and after the effective date of such Comparable Lease, Tenant shall
immediately have the benefit of sixth provision, and such provision shall
automatically be deemed to be a part of this Agreement, mutatis mutandi; and,
upon notice to Tenant, such provision shall immediately become in full force
and effect, superseding the corresponding provisions of this Section 28.2. In
this Section 28.2, the term “Comparable Lease” shall mean any lease
covering at least one full floor of rentable area in the Building (other than
the ground floor and the penthouse floor). If either Landlord or Tenant shall
dispute whether Tenant shall be entitled to the benefit of such provision, or
the terms of this provision, either party may submit such dispute to
arbitration in accordance with the provisions of Section 38.7 of this Lease
and, pending the decision of the arbitrator, Tenant shall continue to pay for
the cost of electricity consumed by the VAC Units, with a refund or credit when
the matter is resolved. Landlord, throughout the Term, shall have access,
subject to the provisions of Article 14, to the VAC Units and to any and all
other


79





mechanical installations of Landlord, including, but not limited to,
air-cooling, fan, ventilating and machine rooms and electrical closets; Tenant
shall not construct partitions or other obstructions which may interfere with
Landlord’s free access thereto, or interfere with the moving of Landlord’s
equipment to and from the enclosures containing said installations. Neither
Tenant, not its agents, employees or contractors shall at any time enter the
said enclosures or tamper with, adjust or touch or otherwise in any manner
affect said mechanical installations. Landlord represents to Tenant that leases
of the Building which are in effect as of the date of this Lease and which
cover at least one full floor of the Building (other the ground floor of the
Building and the penthouse floor) provide for the electricity necessary to
operate package VAC units serving those floors to be measured by submeters; and
that the consumption of electricity measured by such submeters is paid for by
the tenants serviced by such package VAC units.


          Section
28.3 Overtime Heat and VAC. The Fixed Rent does not reflect or
include any charge to Tenant for the furnishing of any necessary heat or VAC to
the Premises during periods other than as set forth in Section 28.2 (such times
are herein referred to as “Overtime Periods”). If Landlord shall furnish
heat to the Premises through the perimeter radiator system at the request of
Tenant during Overtime Periods, Tenant shall pay to Landlord, as Additional
Rent, Landlord’s standard charges for the furnishing of such heat during
Overtime Periods (as of the date of this Lease, the rate applicable to the
furnishing of heat during Overtime Periods is $265.00 per hour, which rates are
subject to increase from time to time). If Landlord shall furnish VAC to the
Premises through the Tenant VAC Units at the request of Tenant during Overtime
Periods, Tenant shall pay to Landlord an hourly rate equal to $1.20 per ton of
air conditioning per hour (with a four (4) hour minimum), subject to increase
due to an increase in the actual costs incurred by Landlord in connection with
the furnishing of such VAC during Overtime Periods to Tenant (including,
without limitation, the wages and benefits of an operating engineer for such
period, the cost of electricity to operate the cooling tower for such period
and the cost of condenser water for such period). Landlord shall not be
required to furnish any such services during any Overtime Periods unless
Landlord has received advance notice from Tenant requesting such services prior
to 2:00 P.M. of the day upon which such services are requested or by 2:00 P.M.
of the last preceding Business Day if such Overtime Periods are to occur on a
day other than a Business Day. If Tenant fails to give Landlord such advance
notice, then, failure by Landlord to furnish or distribute any such services
during such Overtime Periods shall not constitute an actual or constructive
eviction, to whole or in part, or entitle Tenant to any abatement or diminution
of Rental, or relieve Tenant from any of its obligations under this Lease, or
impose any liability upon Landlord or its agents by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant’s business or
otherwise.


          Section
28.4 Cleaning and Water.


                    (A)
Commencing on the substantial completion of Tenant’s Initial Alterations in any
rental unit of the Premises, and provided Tenant shall keep such rental unit in
order, Landlord, at Landlord’s expense, subject to recoupment pursuant to
Article 27 hereof, shall cause such rental unit, excluding any portions thereof
used for the storage, preparation, service or consumption of food or beverages,
to be cleaned, substantially in accordance with the standards set forth on
Schedule B annexed hereto and made a part hereof. Tenant shall pay to Landlord
the


80





cost of removal of any of Tenant’s refuse and rubbish from the Premises
and the Building to the extent that the same exceeds the refuse and rubbish
usually attendant upon the use of such Premises as offices. Bills for the same
shall be rendered by Landlord to Tenant at such time as Landlord may elect and
shall be due and payable when rendered as additional rent. Tenant, at Tenant’s
sole cost and expense shall cause all private lavatories and Executive Shower
Stalls (as said term is hereinafter defined) to be cleaned daily in a manner
satisfactory to Landlord; and Tenant shall take all steps necessary to
eradicate any microorganisms, mold or mildew arising in connection therewith.
Tenant, at Tenant’s sole cost and expense, shall cause all portions of the
Premises used for the storage, preparation, service or consumption of food or
beverages to be cleaned daily to a manner satisfactory to Landlord, and to be
exterminated against infestation by vermin, rodents or roaches regularly and,
in addition, whenever there shall be evidence of any infestation. Any such
exterminating shall be done at Tenant’s sole cost and expense, in a manner
satisfactory to Landlord, and by Persons approved by Landlord. If Tenant shall
perform any cleaning services to addition to the services provided by Landlord
as aforesaid, Tenant shall employ the cleaning contractor providing cleaning
services to the Building on behalf of Landlord or such other cleaning
contractor as shall be approved by Landlord, provided, however,
that Tenant may use its own employees to provide minor cleaning services within
the Premises during Business Hours and to clean any Secured Area at any time.
Tenant shall comply with any recycling program and/or refuse disposal program
(including, without limitation, any program related to the recycling,
separation or other disposal of paper, glass or metals) which Landlord shall
impose or which shall be required pursuant to any Requirements.


                    (B)
Water. Landlord shall provide hot and cold water for ordinary core
lavatory only. Landlord shall provide cold water for ordinary pantry and
drinking purposes, for cleaning purposes, and subject to the provisions of
Article 3 of this Lease, for the installation of up to two (2) separate shower
stalls (the “Executive Shower Stalls”) for use by Tenant’s executives
which Tenant shall have the right to install; and, in connection therewith,
Tenant may install one or more hot water heaters in order to provide hot water
to the shower stalls.


          Section
28.5 If the New York Board of Fire Underwriters or the Insurance Services
Office or any Governmental Authority, department or official of the state or
city government shall require or recommend that any changes, modifications,
alterations or additional sprinkler heads or other equipment in the Premises be
made or supplied by reason of Tenant’s business, or the location of the
partitions, trade fixtures, or other contents of the Premises, Tenant, at
Tenant’s cost and expense, shall promptly make and supply such changes,
modifications, alterations, additional sprinkler heads or other equipment.


          Section
28.6 Landlord reserves the right to stop service of the HVAC System or the
elevator, electrical, plumbing or other Building Systems when necessary, by
reason of accident or emergency, or for repairs, additions, alterations,
replacements or improvements in the judgment of Landlord desirable or necessary
to be made, until said repairs, alterations, replacements or improvements shall
have been completed (which repairs, additions, alterations, replacements and
improvements shall be performed to accordance with Section 4.3 hereof) and
Landlord shall endeavor to notify Tenant in advance of any stoppage and
expected disruption of same. Except as otherwise provided in this Lease,
Landlord shall have no responsibility or liability for interruption,
curtailment or failure to supply HVAC, elevator, electrical, plumbing or


81





other Building Systems when prevented by Unavoidable Delays or by any
Requirements or due to the exercise of its right to stop service as provided in
thus Article 28. Except as otherwise provided in this Lease, the exercise of
such right or such failure by Landlord shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any
compensation or to any abatement or diminution of Rental, or relieve: Tenant
from any of its obligations under this Lease, or impose any liability upon
Landlord or its agents by reason of inconvenience or annoyance to Tenant, or
injury to or interruption of Tenant’s business, or otherwise.


          Section
28.7 Landlord shall make available to Tenant the computerized directory in
the lobby of the Building for up to seventy-five (75) listings. The initial
programming shall be without charge to Tenant. From time to time, but not more
frequently than once every three (3) months, Landlord shall reprogram the
computerized directory to reflect such changes in the listings therein as
Tenant shall request, and Tenant promptly after request shall pay to Landlord a
reasonable reprogramming charge for each reprogramming Tenant requests. If
Landlord replaces the computerized directory with a standard directory in the
lobby of the Building, Tenant shall be entitled to Tenant’s Share of such
listings on such directory.


          Section
28.8 Landlord shall cooperate reasonably with Tenant in connection with
Tenant’s arranging to obtain cable television, internet access, and other
telecommunications services for the Premises. Tenant shall have the right to
obtain cable television, internet access and other telecommunication services
from the suppliers of its choice, subject to prior approval (which approval
shall not be unreasonably withheld or delayed) of such telecommunications
providers and subject further to any reasonable charges and reasonable
requirements promulgated by Landlord in connection with access to the Building
and the installation of any wiring, cabling and other equipment and facilities
required to be installed for the provision of the aforementioned services,
provided such charges or requirements do not unreasonably discriminate against
such providers.


          Section
28.9 If for any reason, unless caused by Unavoidable Delays or Tenant’s
misconduct: (i) Landlord is not providing a service required under this Lease
to be provided by it in accordance with the relevant performance specifications
or if the Premises are not reasonably accessible to Tenant and (ii) as a result
thereof a portion of the Premises is rendered untenantable or inaccessible and
(iii) Tenant ceases to use such portion of the Premises for the conduct of its
business and (iv) such failure continues unremedied for more than three (3)
consecutive Business Days after Tenant shall have notified Landlord in writing
of such failure, and (v) the reason for Landlord’s failure to provide a
service, as aforesaid, is not attributable to a casualty or condemnation, then
the Fixed Rent and Escalation Rent shall be abated during the time that such
portion remains untenantable or inaccessible and unused by Tenant after such
third (3rd) consecutive Business Day, apportioned according to the rentable
area so rendered untenantable and unused or inaccessible. Additionally, if as a
result of Unavoidable Delays: (i) Landlord is not able to provide a service
required under this Lease to be provided by it in accordance with the relevant
performance specifications or if the Premises are not reasonably accessible to
Tenant and (ii) as a result thereof a portion of the Premises is rendered
untenantable or inaccessible and (iii) Tenant ceases to use such portion of the
Premises for the conduct of its business and (iv) such failure continues
unremedied for more than twelve (12) consecutive Business Days after Tenant
shall have notified Landlord in writing of such failure, and (v) the reason for
Landlord’s


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failure to provide a service, as aforesaid, is not attributable to a
casualty or condemnation, then the Fixed Rent and Escalation Rent shall be
abated during the time that such portion remains untenantable or inaccessible
and unused by Tenant after such twelfth (12th) Business Day, apportioned
according to the rentable area so rendered untenantable and unused or
inaccessible.


          Section
28.10 Landlord shall maintain during the Term of this Lease a messenger
center or other similar facility (a “Messenger Center”) for the receipt
of packages delivered to tenants of the Building which packages shall, at
Landlord’s election, either be picked up by Building tenants or be delivered to
such tenants by employees of Landlord or of the contractor retained to operate
the Messenger Center; and, if Landlord shall elect to require tenants to pick
up packages, it shall notify such tenants on a timely basis that packages have
been received. As of the date of this Lease, packages delivered to the
Messenger Center are picked up by employees of tenants of the Building to whom
such packages were delivered.


ARTICLE 29


PARTNERSHIP TENANT


          If Tenant
is a general partnership (or is comprised of two (2) or more Persons,
individually or as co-partners of a partnership, as members of a limited
liability company or as shareholders of a professional corporation) or if
Tenant’s interest in this Lease shall be assigned to a general partnership,
professional corporation (or to two (2) or more Persons, individually or as
co-partners of a partnership), pursuant to Article 12 hereof (any such
partnership and such Persons are referred to in this Article 29 as “Partnership
Tenant”), the following provisions shall apply to such Partnership Tenant:
(a) the liability of each of the parties comprising Partnership Tenant shall be
joint and several; (b) each of the parties comprising Partnership Tenant hereby
consents in advance to, and agrees to be bound by (x) any written instrument
which may hereafter be executed by Partnership Tenant or any successor entity,
changing, modifying, extending or discharging this Lease, in whole or in part,
or surrendering all or any part of the Premises to Landlord, and (y) any
notices, demands, requests or other communications which may hereafter be given
by Partnership Tenant or by any of the parties comprising Partnership Tenant;
(c) any bills, statements, notices, demands, requests or other communications
given or rendered to Partnership Tenant or to any of such parties shall be
binding upon Partnership Tenant and all such parties; (d) if Partnership Tenant
shall admit new partners, shareholders or members, as the case may be,
Partnership Tenant shall give Landlord notice of such event not later than ten
(10) Business Days prior to the admission of such partner(s), shareholder(s) or
member(s) together with an assumption agreement in form and substance
reasonably satisfactory to Landlord pursuant to which each of such new partners
shall, by their admission to Partnership Tenant, agree to assume joint and
several liability for the performance of all of the terms, covenants and
conditions of this Lease (as the same may have been or thereafter be amended)
on Tenant’s part to be observed and performed; it being expressly understood
and agreed that each such new partner shall be deemed to have assumed joint and
several liability for the performance of all of the terms, covenants and
conditions of this Lease (as the same may have been or thereafter be amended),
whether or not such new partner shall have executed such assumption agreement,
and that neither Tenant’s failure to deliver such assumption agreement nor the
failure


83





of any such new partner or shareholder, as the case may be, to execute
or deliver any such agreement to Landlord shall vitiate the provisions of this
clause (d) of this Article 29).


ARTICLE 30


VAULT SPACE


          Notwithstanding
anything contained in this Lease or indicated on any sketch, blueprint or plan,
any vaults, vault space or other space outside the boundaries of the Real
Property are not included in the Premises. Landlord makes no representation as
to the location of the boundaries of the Real Property. All vaults and vault
space and all other space outside the boundaries of the Real Property which
Tenant may be permitted to use or occupy are to be used or occupied under a
revocable license, and if any such license shall be revoked, or if the amount
of such space shall be diminished or required by any Governmental Authority or
by any public utility company, such revocation, diminution or requisition shall
not constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of Rental, or relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Landlord.
Any fee, tax or charge imposed by any Governmental Authority for any such
vaults, vault space or other space occupied by Tenant shall be paid by Tenant.


ARTICLE 31


SECURITY


          Section
31.1 Tenant shall deliver to Landlord as the Security Amount, on or before
5:00 p.m. on January 23, 2006, a “clean,” unconditional, irrevocable and
transferable letter of credit (the “Letter of Credit”) in the sum of
$693,805.50. Provided that this Lease is then in full force and effect, Tenant
shall have the right to reduce the amount of the Security Amount to $462,537.00
as of March 15, 2009. Tenant shall have the right to such reduction only by
giving notice thereof to Landlord at any time after February 15, 2009. Tenant
shall not be entitled to reduce the amount of the Security Amount Letter of
Credit if (i) an Event of Default has occurred and is then continuing on the
date that Tenant requests such reduction or the date that Landlord exchanges
the Letter of Credit for an amended or substituted Letter of Credit to reflect
such reduction, or (ii) Landlord theretofore applied all or any portion of the
Security Amount deposited hereunder and Tenant shall have failed to provide a
substituted or amended Letter of Credit in the full Security Amount as required
hereunder. If Tenant gives such notice and is entitled to any such reduction in
accordance with the terms of this Section 31.1, then Landlord shall permit
Tenant, at Tenant’s sole cost and expense, to amend or replace the Letter of
Credit to reflect such reduction and, in connection with such amendment or
replacement, Landlord shall exchange the Letter of Credit then held by Landlord
for the amended or replaced Letter of Credit evidencing the reduction in the
Security Amount. The Letter of Credit (i) shall be, in all substantial respects,
in the form of the Letter of Credit attached to this Lease as Exhibit H,
or in another form that is reasonably satisfactory to Landlord, (ii) shall be
issued for a term of not less than one (1) year, (iii) shall be issued for the
account of Landlord, (v) shall automatically renew for periods of not less than
one (1) year, unless the issuer thereof otherwise advises Landlord on or prior
to the sixtieth (60th) day before the applicable expiration date, and (iv)
shall be issued by, and drawn on, a bank that has a Standard & Poor’s
rating of at least “AA” (or, if Standard & Poor’s hereafter ceases
the publication of ratings for banks, a rating of a reputable rating agency


84





as reasonably designated by Landlord that most closely approximates a
Standard & Poor’s rating of “AA” as of the date hereof) and that has
an office in New York City at which Landlord can present the Letter of Credit
for payment or which permits draws under the Letter of Credit to be made by
Landlord via facsimile transmittal. If an Event of Default occurs and is
continuing, then Landlord may, after first notifying Tenant, present the Letter
of Credit for payment and apply the proceeds thereof (i) to the payment of any
Fixed Rent or Additional Rent that then remains unpaid, or (ii) to any damages
that Landlord incurs by reason of such Event of Default. If Landlord so applies
any part of the proceeds of the Letter of Credit, then Tenant, upon demand,
shall provide Landlord with a replacement Letter of Credit (or, if the proceeds
applied shall be less than $10,000.00, cash) so that Landlord has the full
amount of the Security Amount at all times during the Term. If the issuing bank
shall notify Landlord that the term of the Letter of Credit shall not be
renewed, Tenant shall, at least thirty (30) days prior to the expiration date
of the Letter of Credit (or any replacement Letter of Credit, as the case may
be), replace the Letter of Credit with a new Letter of Credit issued in
accordance with this Article having an initial expiration date at least one (1)
year from the date of the new Letter of Credit. If, for any reason whatsoever
other than Landlord’s failure to comply with the requirements of the Letter of
Credit, the issuing bank shall fail or refuse to honor any demand, then Tenant
shall within five (5) days following notice by Landlord to Tenant of such
failure or refusal either, at Landlord’s option (i) deposit with Landlord as
the Security Amount a cash sum equal to the amount of the Letter of Credit, or
(ii) replace the Letter of Credit with a new Letter of Credit issued in
accordance with this Article (having an initial expiration date at least one
year from the date of the new Letter of Credit). If Landlord shall transfer its
interest in the Building, Tenant shall, at the request of the transferor or
transferee, replace or amend the Letter of Credit within ten (10) days
following such request, so that the transferee is named as the beneficiary. Any
transfer fee or charge imposed by the issuing bank shall be reimbursed to
Landlord (or, at Landlord’s option, paid) by Tenant within ten (10) days
following Landlord’s request. Landlord shall return to Tenant the Letter of
Credit (to the extent not theretofore presented for payment in accordance with
the terms hereof) within thirty (30) days after Tenant performs all of the
obligations of Tenant hereunder upon the expiration of the Term.


          Section
31.2 If all or any portion of the Letter of Credit is drawn down by
Landlord in accordance with the provisions of Section 31.1, such proceeds shall
be held by Landlord, to the extent unapplied by Landlord in accordance with the
provisions of this Article 31, as cash security (to the extent thereof, the “Security
Amount”). If there is an Event of Default, Landlord may use all or any
portion of such Security Amount to cure such Event of Default or for the
payment of any other amount due and payable from Tenant to Landlord in
accordance with this Lease. Tenant shall, within ten (10) days following
Tenant’s receipt of Landlord’s request, deposit with Landlord cash in an amount
sufficient to restore the full amount of the Security Amount (without giving
consideration to any interest accrued on the Security Amount). If and to the
extent that Landlord is holding any cash as all or part of the Security Amount,
Landlord shall maintain all or such portion of the Security Amount in an
interest bearing account in a commercial bank located in New York City, and
Landlord shall pay any interest earned thereon annually to Tenant, provided
that Landlord shall retain one percent (1%) of such Security Amount per annum
as an administrative charge. Tenant shall not assign (other than to a permitted
assignee of this Lease) or encumber the Security Amount, and no prohibited
assignment or encumbrance by Tenant of the Security Amount shall bind Landlord.
Landlord


85





shall not be
required to exhaust its remedies against Tenant or Security Amount before
having recourse to Tenant, Guarantor, if any, the Security Amount or any other
security held by Landlord, or before exercising any right or remedy, and
recourse by Landlord to any one of them, or the exercise of any right or
remedy, shall not affect Landlord’s right to pursue any other right or remedy
or Landlord’s right to proceed against the others. If Tenant complies with this
Lease, the Security Amount and the accrued and unpaid interest thereon, if any,
or any balance, shall be paid to Tenant promptly after (but in no event later
than thirty (30) days after) the expiration or sooner termination of the Term
and Tenant’s vacating of the Premises in accordance with this Lease. If the
Property is sold or leased, Landlord shall, upon notice to Tenant, transfer the
Security Amount and any accrued and unpaid interest thereon, if any, or any
balance, to the new purchaser or lessor and Landlord shall thereupon be
automatically released by Tenant from all liability for the return of the
Security Amount or any interest (and Tenant agrees to look solely to the
assignee for the return of the Security Amount or any interest).


          Section
31.3 Pursuant to New York General Obligations Law Section 7-103, Tenant
acknowledges that the name and address of the organization in which any cash
Security Amount shall be held by Landlord is as follows: JP Morgan Chase Bank
(Commercial Real estate Tenant Lease Security Services), 245 Park Avenue, New
York, NY 10017. Tenant shall submit to Landlord a United States Internal
Revenue W-9 (Tax Withholding) Form upon the execution of this Lease.


ARTICLE 32


CAPTIONS


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


ARTICLE 33


PARTIES BOUND


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


ARTICLE 34


BROKER


          Each party
represents and warrants to the other that it has not dealt with any broker or
Person in connection with this Lease other than Trammell Crow Services, Inc.
and Jones Lang LaSalle Americas, Inc. (the Broker named in the Reference Data
initially set forth in this Lease). The execution and delivery of this Lease by
each party shall be conclusive evidence that such party has relied upon the
foregoing representation and warranty. Tenant shall indemnify and hold Landlord
harmless from and against any and all claims for commission, fee or other
compensation by any Person (other than Trammell Crow Services, Inc. and Jones
Lang LaSalle


86





Americas, Inc.) who shall claim to have dealt with Tenant in connection
with this Lease and for any and all costs incurred by Landlord in connection
with such claims, including, without limitation, reasonable attorneys’ fees and
disbursements. Landlord shall indemnify and hold Tenant harmless from and
against any and all claims for commission, fee or other compensation by any
Person (including Broker) who shall claim to have dealt with Landlord in
connection with this Lease and for any and all costs incurred by Tenant in
connection with such claims, including, without limitation, reasonably
attorneys’ fees and disbursements. Landlord shall pay any commission due Broker
in accordance with Landlord’s separate agreement with the Broker.


ARTICLE 35


INDEMNITY


          Section
35.1 Tenant shall not do or permit any act or thing to be done upon the
Premises which may subject Landlord to any liability or responsibility for
injury, damages to persons or property or to any liability by reason of any
violation of any Requirement, and shall exercise such control over the Premises
as to fully protect Landlord against any such liability. Subject to the
provisions of Section 9.4 of this Lease relating to waivers of subrogation,
Tenant shall indemnify and save the Landlord Indemnitees harmless from and
against (a) all claims against the Landlord Indemnitees arising from any
accident, injury or damage whatsoever caused to any person or to the property
of any person and occurring during the Term in or about the Premises, (b) all
claims against the Landlord Indemnitees arising from any accident, injury or
damage occurring within or about the Real Property, where such accident, injury
or damage results or is claimed to have resulted from an act, omission or
negligence of Tenant or Tenant’s contractors, licensees, agents, servants, or
employees, and (c) any breach, violation or non-performance of any covenant,
condition or agreement in this Lease set forth and contained on the part of
Tenant to be fulfilled, kept, observed and performed. Subject to the provisions
of Section 9.4 of this Lease relating to waivers of subrogation, Landlord shall
indemnify and save Tenant and the Tenant Indemnitees harmless from and against
(a) all claims against the Tenant Indemnitees arising from any accident, injury
or damage whatsoever caused to any person or to the property of any person and
occurring during the Term within or about the Real Property, where such accident,
injury or damage results or is claimed to have resulted from an act, omission
or negligence of Landlord or its contractors, licensees, agents, servants, or
employees, and (b) any breach, violation or non-performance of any covenant,
condition or agreement in this Lease set forth and contained on the part of
Landlord to be fulfilled, kept, observed and performed. This indemnity and hold
harmless agreement shall include indemnity from and against any and all
liability, fines, suits, demands, costs and expenses of any kind or nature
(including, without limitation, reasonable attorneys’ fees and disbursements)
incurred in or in connection with any such claim or proceeding brought thereon,
and the defense thereof but except with respect to claims with respect to
bodily injury or death, shall be limited to the extent any insurance proceeds
collectible by the indemnifying party under policies owned by such indemnifying
party or such injured party with respect to such damage or injury are
sufficient to satisfy same. Nothing contained in this Section 35.1 shall be
deemed to require (i) Tenant to indemnify Landlord to the extent of any
negligent or tortious act committed by Landlord or any Landlord Indemnitee; or
(ii) Landlord to indemnify Tenant to the extent of any negligent or tortious
act committed by Tenant or any Tenant Indemnitee.


87





          Section
35.2 If any claim, action or proceeding is made or brought against
Landlord, which claim, action or proceeding Tenant shall be obligated to
indemnify Landlord and/or the Landlord Indemnitees against pursuant to the
terms of this Lease, then, upon demand by Landlord, Tenant, at its sole cost
and expense, shall resist or defend such claim, action or proceeding in
Landlord’s name, if necessary, by such attorneys as Landlord shall approve,
which approval shall not be unreasonably withheld or delayed. Attorneys for
Tenant’s insurer are hereby deemed approved for purposes of this Section 35.2.
Notwithstanding the foregoing, Landlord may retain its own attorneys to defend
or assist in defending any claim, action or proceeding involving potential
liability of Five Million Dollars ($5,000,000) or more, and Tenant shall pay
the reasonable fees and disbursements of such attorneys. If any claim, action
or proceeding is made or brought against Tenant, which claim, action or
proceeding Landlord shall be obligated to indemnify Tenant and/or the Tenant
Indemnitees against pursuant to the terms of this Lease, then, upon demand by
Tenant, Landlord, at its sole cost and expense, shall resist or defend such
claim, action or proceeding in Tenant’s name, if necessary, by such attorneys
as Tenant shall approve, which approval shall not be unreasonably withheld or
delayed. Attorneys for Landlord’s insurer are hereby deemed approved for
purposes of this Section 35.2. Notwithstanding the foregoing, Tenant may retain
its own attorneys to defend or assist in defending any claim, action or
proceeding involving potential liability of Five Million Dollars ($5,000,000)
or more, and Landlord shall pay the reasonable fees and disbursements of such
attorneys. The provisions of this Article 35 shall survive the expiration or
earlier termination of this Lease.


ARTICLE 36


ADJACENT EXCAVATION-SHORING


          If an
excavation shall be made upon land adjacent to the Premises, or shall be
authorized to be made, Tenant, upon reasonable advance notice, shall afford to
the person causing or authorized to cause such excavation, a license to enter
upon the Premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the Building from injury or damage and to
support the same by proper foundations, without any claim for damages or
indemnity against Landlord, or diminution or abatement of Rental, provided that
Tenant shall continue to have access to the Premises and the Building.


ARTICLE 37


DEFINITIONS


          “Affiliate”
shall mean a Person which shall (1) Control, (2) be under the Control of, or
(3) be under common Control with the Person in question.


          “Alterations”
shall mean alterations, installations, improvements, additions or other
physical changes (other than decorations) in or about the Premises.


          “Applicable
Rate” shall mean the lesser of (x) three (3) percentage points above the
then current Base Rate, and (y) the maximum rate permitted by applicable law.


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          “Assessed
Valuation” shall have the meaning set forth to Section 27.1 hereof


          “Assignment
Additional Rent” shall have the meaning set forth in Section 12.6 hereof.


          “Bankruptcy
Code” shall mean 11 U.S.C. Section 101 et seq., or any statute of similar
nature and purpose.


          “Base
Electric Rate” shall mean the Electric Rate in effect as of the date that
Landlord charges Tenant for electricity furnished to the Premises on a “rent
inclusion” basis, as is provided in Section 13.3 of this Lease.


          “Base
Operating Expenses” shall have the meaning set forth in Section 27.1 hereof


          “Base
Operating Year” shall have the meaning set forth in the Reference Data
initially set forth in this Lease.


          “Base
Rate” shall mean the rate of interest publicly announced from time to time
by Citibank, N.A., or its successor, as its “prime lending rate” (or such other
term as may be used by Citibank, N.A., from time to time, for the rate
presently referred to as its “prime lending rate”).


          “Base
Taxes” shall have the meaning set forth in Section 27.1 hereof.


          “Base
Tax Year” shall have the meaning set forth in the Reference Data initially
set forth in this Lease.


          “Broker”
shall have the meaning set forth in the Reference Data initially set forth in
this Lease.


          “Building”
is defined in the Reference Data initially set forth in this Lease.


          “Building
Systems” shall mean the mechanical, gas, electrical, sanitary, heating, air
conditioning, ventilating, elevator, plumbing, life-safety and other service
systems of the Building.


          “Business
Days” shall mean all days, excluding Saturdays, Sundays and all days observed
by either the State of New York or the Federal Government and by the labor
unions servicing the Building as legal holidays.


          “Business
Hours” shall mean 8:00 a.m. to 6:00 p.m. on Business Days.


          “Commencement
Date” shall have the meaning set forth in the Reference Data initially set
forth in this Lease.


          “Control”
or “control” shall have the meaning set forth in Section 12.3(C).


          “Current
Year” shall have the meaning set forth in Section 27.4 hereof.


          “Deficiency”
shall have the meaning set forth in Section 17.2 hereof.


89





          “Electric
Rate” shall have the meaning set forth in Section 13.2 hereof.


          “Electricity
Additional Rent” shall have the meaning set forth in Section 13.2 hereof.


          “Electricity
Inclusion Factor” shall have the meaning set forth in Section 13.3 hereof.


          “Electricity
Statement” shall have the meaning set forth to Section 13.3 hereof.


          “Escalation
Rent” shall mean, individually or collectively, the Tax Payment and the
Operating Payment.


          “Event
of Default” shall have the meaning set forth to Section 16.1 hereof.


          “Expiration
Date” shall mean the Fixed Expiration Date or such earlier date on which
the Term shall sooner end pursuant to any of the terms, conditions or covenants
of this Lease or pursuant to law.


          “Fixed
Expiration Date” shall have the meaning set forth in the Reference Data
initially set forth in this Lease.


          “Fixed
Rent” shall have the meaning set forth in Section 1.1 hereof.


          “Full
Value” shall have the meaning set forth in Section 13.2 hereof.


          “GAAP”
means United States generally accepted accounting principles.


          “Governmental
Authority (Authorities)” shall mean the United States of America, the State
of New York, The City of New York, any political subdivision thereof and any
agency, department, commission, board, bureau or instrumentality of any of the
foregoing, or any quasi-governmental authority, now existing or hereafter
created, having jurisdiction over the Real Property or any portion thereof.


          “Hazardous
Materials” shall mean any biologically or chemically active or other toxic
or hazardous wastes, pollutants or substances, including, without limitation,
asbestos, PCBs, petroleum products and by-products, substances defined or
listed as “hazardous substances” or “toxic substances” or similarly identified
in or pursuant to the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. § 9601 et seq., and as hazardous wastes under the
Resource Conservation and Recovery Act, 42 U.S.C. § 6010, et seq., any chemical
substance or mixture regulated under the Toxic Substance Control Act of 1976,
as amended, 15 U.S.C. § 2601, et seq., any “toxic pollutant” under the Clean
Water Act, 33 U.S.C. § 466 et seq., as amended, any hazardous air pollutant
under the Clean Air Act, 42 U.S.C. § 7401 et seq., hazardous materials
identified in or pursuant to the Hazardous Materials Transportation Act, 49
U.S.C. § 1802, et seq., and any hazardous or toxic substances or pollutant
regulated under any other Requirements.


          “HVAC”
shall mean heat, ventilation and air conditioning.


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          “HVAC
Systems” shall mean the Building Systems providing HVAC; including the
Tenant VAC Units.


          “Initial
Alterations” shall mean the Alterations, if any, to be made by Tenant to
initially prepare the Premises for Tenant’s occupancy.


          “Landlord”,
on the date on which this Lease is made, shall mean the Person named as the
“Landlord” in the first page of this Lease, but thereafter, “Landlord” shall
mean only the fee owner of the Real Property or if there shall exist a Superior
Lease, the tenant thereunder.


          “Landlord’s
Engineer” shall have the meaning set forth in Section 13.2 hereof.


          “Landlord
Indemnitees” shall mean Landlord and Landlord’s members, partners,
officers, directors and the managing agent of the Building, and any Lessors and
Mortgagees.


          “Landlord’s
Work” shall have the meaning set forth in Exhibit B annexed.


          “Lessor(s)”
shall mean a lessor under a Superior Lease.


          “Letter
of Credit” shall have the meaning set forth in Article 31 hereof.


          “Long
Lead Work” shall mean any item installed in the Premises by Tenant which is
not a stock item and must be specially manufactured, fabricated or installed or
is of such an unusual, delicate or fragile nature that there is a substantial
risk that


	
  

 	
  

 
	
  

 	
           (i) there
 will be a delay in its manufacture, fabrication, delivery or installation, or

 
	
  

 	
  

 
	
  

 	
           (ii)
 after delivery, such item will need to be reshipped or redelivered or
 repaired

 


so that in Landlord’s reasonable judgment the item in question cannot
be completed when the standard items are completed even though the item of Long
Lead Work in question is (1) ordered together with the other items required and
(2) installed or performed (after the manufacture or fabrication thereof) to
the order and sequence that such Long Lead Work and other items are normally
installed or performed in accordance with good construction practice provided
that Landlord shall notify Tenant of any Long Lead Work prior to ordering any
item of Long Lead Work, or proceeding with such Long Lead Work.


          “Mortgage(s)”
shall mean any trust indenture or mortgage which may now or hereafter affect
the Real Property, the Building or any Superior Lease and the leasehold
interest created thereby, and all renewals, extensions, supplements,
amendments, modifications, consolidations and replacements thereof or thereto,
substitutions therefor, and advances made thereunder.


          “Mortgagee(s)”
shall mean any trustee, mortgagee or holder of a Mortgage.


          “Operating
Expenses” shall have the meaning set forth in Section 27.1 hereof.


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          “Operating
Payment” shall have the meaning set forth in Section 27.4 hereof.


          “Operating
Statement” shall have the meaning set forth in Section 27.1 hereof.


          “Operating
Year” shall have the meaning set forth in Section 27.1 hereof.


          “Overtime
Periods” shall have the meaning set forth in Section 28.3 hereof.


          “Parties”
shall have the meaning set forth in Section 37.2 hereof.


          “Partner”
or “partner” shall mean any partner of Tenant, any employee of a
professional corporation which is a partner comprising Tenant, and any
shareholder of Tenant if Tenant shall become a professional corporation.


          “Partnership
Tenant” shall have the meaning set forth in Article 29 hereof.


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


          “Premises”
shall have the meaning set forth in the Reference Data initially set forth in
this Lease.


          “Prevailing
Rate” shall have the meaning set forth in Section 12.6 hereof


          “Real
Property” shall mean the Building, together with the plot or plots of land
upon which it stands.


          “Real
Property” shall mean the Building, together with the plot or plots of land
upon which it stands.


          “Rental”
shall mean and be deemed to include Fixed Rent, Escalation Rent, all additional
rent and any other sums payable by Tenant hereunder.


          “Rent
Commencement Date” shall have the meaning set forth in the Reference Data
initially set forth in this Lease.


          “Requirements”
shall mean all present and future laws, rules, orders, ordinances, regulations,
statutes, requirements, codes and executive orders, extraordinary as well as
ordinary, of all Governmental Authorities now existing or hereafter created,
and of any and all of their departments and bureaus, affecting the Real
Property or any portion thereof, or any street, avenue or sidewalk comprising a
part of or in front thereof or any vault in or under the same or requiring
removal of any encroachment, or affecting the maintenance, use or occupation of
the Real Property or any portion thereof.


          “Rules
and Regulations” shall mean the rules and regulations annexed hereto and
made a part hereof as Schedule A, and such other and further reasonable rules
and regulations as Landlord or Landlord’s agents may from time to time adopt on
such notice to be given as


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Landlord may elect, subject to Tenant’s right to dispute the
reasonableness thereof as provided in Article 8 hereof.


          “Security
Amount” shall have the meaning set forth in the Reference data initially
set forth in this lease.


          “Specialty
Alterations” shall mean Alterations which are not standard office
installations in office space in Midtown Manhattan, such as kitchens, executive
bathrooms (including shower stalls), raised computer floors covering more than
1,500 square feet, computer installations, vaults, libraries or file rooms requiring
reinforcement of floors, internal staircases, dumbwaiters, pneumatic tubes, and
vertical and horizontal transportation systems.


          “Sublease
Additional Rent” shall have the meaning set forth in Section 12.5 hereof.


          “Substantial
Completion” or “Substantially Completed” or words of similar import,
when used with respect to Landlord’s Work and Landlord’s Common Area Work
(i.e., not merely Landlord’s Pre-Commencement Date Work) shall mean that such
Landlord’s Work has been substantially completed, it being agreed that
Landlord’s Work shall be deemed substantially complete notwithstanding the fact
that minor or insubstantial details of construction or demolition and/or
mechanical adjustment and/or decorative items remain to be performed, the
non-completion of which does not (and the completion of which shall not)
interfere with the performance of Tenant’s Initial Alterations or Tenant’s use
and occupancy of the Premises for the conduct of Tenant’s business, and that,
with respect to Landlord’s Pre-Commencement Date Work, Tenant is able to obtain
all services and facilities under this Lease, (other than heating, ventilation
and air conditioning under Sections 28.2 and 28.3 and cleaning and janitorial
services under Section 28.4(A)).


          “Superior
Lease(s)” shall mean all ground or underlying leases of the Real Property
or the Building and all renewals, extensions, supplements, amendments and
modifications thereof.


          “Taxes”
shall have the meaning set forth in Section 27.1 hereof.


          “Tax
Payment” shall have the meaning set forth in Section 27.2 hereof.


          “Tax
Statement” shall have the meaning set forth in Section 27.1 hereof.


          “Tax
Year” shall have the meaning set forth in Section 27.1 hereof


          “Tenant”,
on the date on which this Lease is made, shall mean the Person originally named
as the “Tenant” in the first page of this Lease, but thereafter “Tenant” shall
mean only the tenant under this Lease at the time in question, provided,
however, that the originally named Tenant and any assignee of this Lease shall
not be released from liability hereunder in the event of any assignment of this
Lease.


          “Tenant
Delay” shall have the meaning set forth in Exhibit B annexed.


          “Tenant
Statement” shall have the meaning set forth in Section 12.6 hereof.


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          “Tenant’s
Engineer” shall have the meaning set forth in Section 13.2 hereof.


          “Tenant’s
Expenses” shall have the meaning set forth in Section 12.5 hereof.


          “Tenant
Indemnitees” shall mean Tenant and Tenant’s members, partners, officers,
and directors.


          “Tenant’s
Property” shall mean Tenant’s movable fixtures and movable partitions,
telephone and other movable equipment, furniture, furnishings, decorations and
other items of personal property.


          “Tenant’s
Share” shall have the meaning set forth in the Reference Data initially set
forth in this Lease.


          “Tenant’s
Tax Share” shall have the meaning set forth in the Reference Data initially
set forth in this Lease.


          “Tenant
VAC Units” shall mean the VAC Units referred to in Section 28.2 of this
Lease.


          “Term”
shall mean a term which shall commence on the Commencement Date and shall
expire on the Expiration Date, as the same may be extended or sooner terminated
pursuant to the terms of this Lease.


          “Termination
Date” shall have the meaning set forth in Section 12.6(B) hereof.


          “Third
Engineer” shall have the meaning set forth in Section 13.2 hereof.


          “Unavoidable
Delays” shall have the meaning set forth in Article 25 hereof.


          “VAC”
shall mean ventilation and air conditioning.


ARTICLE 38


MISCELLANEOUS


          Section
38.1 This Lease is offered for signature by Tenant and it is understood
that this Lease shall not be binding upon Landlord unless and until Landlord
and Tenant shall have executed and unconditionally delivered a fully executed
copy of this Lease to each other.


          Section
38.2 The obligations of Landlord under this Lease shall not be binding upon
Landlord named herein after the sale, conveyance, assignment or transfer by
such Landlord (or upon any subsequent landlord after the sale, conveyance,
assignment or transfer by such subsequent landlord) of its interest in the
Building or the Real Property, as the case may be, and in the event of any such
sale, conveyance, assignment or transfer, Landlord shall be and hereby is
entirely freed and relieved of all covenants and obligations thereafter
accruing of Landlord hereunder. The members, partners, shareholders, directors,
officers and principals, direct and indirect, comprising Landlord
(collectively, the “Parties”) shall not be liable for the performance of
Landlord’s obligations under this Lease. Tenant shall look solely to Landlord
to enforce


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Landlord’s obligations hereunder and shall not seek any damages against
any of the Parties. The liability of Landlord for Landlord’s obligations under
this Lease shall be limited to Landlord’s interest in the Real Property
(including, without limitation, all proceeds received by Landlord from the sale
or refinancing of the Property provided that Tenant’s claim in respect thereof
shall be limited to any claims asserted by Tenant in writing against Landlord
within one hundred eighty (180) days following notice to Tenant of the closing
of such sale or refinancing) and Tenant shall not look to any other property or
assets of Landlord or the property or assets of any of the Parties in seeking
either to enforce Landlord’s obligations under this Lease or to satisfy a
judgment for Landlord’s failure to perform such obligations.


          Section
38.3 Notwithstanding anything contained in this Lease to the contrary, all
amounts payable by Tenant to or on behalf of Landlord under this Lease, whether
or not expressly denominated Fixed Rent, Escalation Rent, additional rent or
Rental, shall constitute rent for the purposes of Section 502(b)(7) of the
Bankruptcy Code.


          Section
38.4 Tenant’s liability for all items of Rental and Landlord’s liability for
all refunds that may be due Tenant shall survive the Expiration Date, except to
the extent otherwise specifically provided in this Lease.


          Section
38.5 This Lease shall not be recorded. Simultaneously with the execution of
this Lease, Landlord and Tenant shall execute, acknowledge and deliver (i) a
memorandum of lease in respect of this Lease and a memorandum of amendment of
lease in respect of any amendment of this Lease, sufficient for recording and
in form reasonably satisfactory to Landlord, which memorandum may be recorded
by Tenant, and (ii) any other instrument(s) necessary to the effective
recordation of such memorandum of lease or memorandum of amendment of lease, as
the case may be; provided, however, that Tenant shall pay for all costs, taxes
and/or other expenses necessary for the effective recordation of any such
memorandum. Notwithstanding the foregoing, no such memorandum described in this
Section 38.5 shall recite the amounts or rates of Fixed Rent or Additional Rent
payable hereunder. In no event, shall any memorandum of this Lease or any
amendment hereof be deemed to change or otherwise affect any of the obligations
or provisions of this Lease or such amendment hereof.


          Section
38.6 Tenant hereby waives any claim for damages against Landlord which
Tenant may have based upon any assertion that Landlord has unreasonably
withheld or unreasonably delayed any consent or approval requested by Tenant
(unless there is an affirmative finding by a court of competent jurisdiction or
by an arbitration under Section 38.7 that Landlord withheld such consent or
approval in bad faith) and Tenant agrees (unless such affirmative finding shall
conclude that Landlord shall have so acted in bad faith), Tenant’s sole
remedies under this Lease shall be an action or proceeding to enforce any
related provision or for specific performance, injunction or declaratory
judgment or an arbitration proceeding under Section 38.7 of this Lease. In the
event of a determination that such consent or approval has been unreasonably
withheld or delayed, the requested consent or approval shall be deemed to have
been granted, however, Landlord shall have no liability to Tenant for its
refusal or failure to give such consent or approval except as otherwise
specifically provided in this Section 38.6.


          Section
38.7 (A) If, pursuant to any express provision of this Lease (other than
Section 27.5 of this Lease), either Landlord is entitled, Tenant is entitled,
or either of Landlord or Tenant


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is entitled, to submit a particular dispute to arbitration in accordance
with the provisions of this Section 38.7; or in any case under Sections 3.1,
3.5, 3.7, 4.2, 7.2(F), 12.2, 12.4, 12.5, 12.6, 12.7, 12.10, 12.11, 13.1, 28.8,
28.9, 35.2 or paragraphs 3, 7 or 15 of Schedule A to this Lease, or Paragraph
IV of Exhibit B to this Lease, where Landlord has agreed not to
unreasonably withhold or delay its consent to an action proposed by Tenant, and
Tenant believes Landlord unreasonably withheld or delayed its consent, then
such dispute shall be determined, under the Expedited Procedures provisions
(Rules E-1 through E-10 in the edition in effect on the date of this Lease, as
the same may be modified or supplemented from time to time) of the Commercial
Arbitration Rules of the American Arbitration Association (the “AAA”).
The arbitrator shall be a person having at least fifteen (15) years experience
in a calling related to the matter in dispute. In cases where the parties
utilize such arbitration: (a) the parties will have no right to object if the
arbitrator so appointed was on the list submitted by the AAA and was not
objected to in accordance with Rule E-5, (b) the first hearing shall be held
within seven (7) Business Days after the appointment of the arbitrator, (c) the
arbitrator shall render a decision which either accepts Landlord’s position or
accepts Tenant’s position, but no other, (d) if the arbitrator shall find that
Landlord acted unreasonably in withholding or delaying a consent or approval,
such consent or approval shall be deemed granted, and (e) the non-prevailing
party in such arbitration shall pay the arbitration costs charged by AAA and/or
the arbitrator. The decision of the arbitrator shall be conclusively binding on
the parties, and judgment upon the decision may be entered in any court having
jurisdiction. If any dispute is submitted to arbitration under this Section
38.7 then, pending the decision of the arbitrator, Tenant shall pay any amount
in dispute, or perform any obligation in dispute, in accordance with Landlord’s
determination.


                    (B)
Landlord and Tenant agree to sign all documents and to do all
other things reasonably necessary to submit any such matter to arbitration and
further agree to, and hereby do, waive any and all rights they or either of
them may at any time have to revoke their agreement hereunder to submit to
arbitration and to abide by the decision rendered thereunder. For such period,
if any, as this agreement to arbitrate is not legally binding or the
arbitrator’s award is not legally enforceable, the provisions requiring
arbitration shall be deemed deleted and matters to be determined by arbitration
shall be subject to litigation.


                    (C)
In making his or her determination, the arbitrator shall not
subtract from, add to, or otherwise modify any of the provisions of this Lease.
Landlord and Tenant may be represented by counsel and employ expert witnesses
in any such arbitration. Except as may be otherwise specifically provided in
this Lease, in connection with any arbitration held pursuant to the provisions
of this Article, each party shall pay its own costs and expenses.


          Section
38.8 This Lease contains the entire agreement between the parties and
supersedes all prior understandings, if any, with respect thereto. This Lease
shall not be modified, changed, or supplemented, except by a written instrument
executed by both parties.


          Section
38.9 Landlord and Tenant each hereby (a) irrevocably consents and submits
to the jurisdiction of any Federal, state, county or municipal court sitting in
the City of New York and State of New York in respect to any action or
proceeding brought therein by Landlord against Tenant concerning any matters
arising out of or in any way relating to this Lease; (b) irrevocably waives all
objections as to venue and any and all rights it may have to seek a change of
venue with respect to any such action or proceedings; (c) agrees that the laws
of the State of


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New York shall govern in any such action or proceeding and waives any
defense to any action or proceeding granted by the laws of any other country or
jurisdiction unless such defense is also allowed by the laws of the State of
New York; and (d) agrees that any final judgment rendered against it in any
such action or proceeding shall be conclusive and may be enforced in any other
jurisdiction by suit on the judgment or in any other manner provided by law.
Tenant further agrees that any action or proceeding by Tenant against Landlord
in respect to any matters arising out of or in any way relating to this Lease
shall be brought only in the State of New York, county of New York.


          Section
38.10 (A) All of the Schedules and Exhibits attached hereto are
incorporated in and made a part of this Lease, but, in the event of any
inconsistency between the terms and provisions of this Lease and the terms and
provisions of the Schedules and Exhibits hereto, the terms and provisions of
this Lease shall control. Wherever appropriate in this Lease, personal pronouns
shall be deemed to include the other genders and the singular to include the
plural. All Article and Section references set forth herein shall, unless the
context otherwise specifically requires, be deemed references to the Articles
and Sections of this Lease.


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


                    (C)
All references in this Lease to the consent or approval of
Landlord shall be deemed to mean the written consent or approval of Landlord
and no consent or approval of Landlord shall be effective for any purpose
unless such consent or approval is set forth in a written instrument executed
by Landlord.


          Section
38.11 Tenant hereby represents, covenants and warrants to Landlord that:
(i) Tenant (which, for the purpose of this certification, includes its
partners, members, principal shareholders, except for those who are members of
the public who hold Tenant’s stock), to the best of its knowledge, is not in
violation of any laws, executive orders or regulations relating to terrorism or
money laundering, including Executive Order No. 13224 - Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism, effective September 24, 2001 (the “Executive Order”)
and/or the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act (USA PATRIOT ACT) of 2001
(Public Law 107 56) (the “USA Patriot Act”), enacted October 26,
2001, and Tenant has not been designated as a “Specially Designated National
and Blocked Person” or other banned or blocked person, entity, nation, or
transaction pursuant to the Executive Order, the Patriot Act or any other law,
order, rule, or regulation; (ii) Tenant is currently in compliance with and
will at all times during the Term of this Lease (including any extension
thereof) remain in compliance with the Executive Order, the USA Patriot Act and
regulations of the Office of Foreign Assets Control of the United States
Department of the Treasury, and any statute, executive order and other
governmental action relating thereto; and (iii) Tenant is not engaged in this
transaction, directly or indirectly on behalf 


97





of, or instigating or facilitating this transaction, directly or
indirectly on behalf of, any such person, group, entity, or nation.


          Section
38.12 Tenant agrees to complete and deliver to Landlord the form attached
hereto as Exhibit I (the “Confirmation”), and either affix
Tenant’s seal thereto or have Tenant’s execution thereof acknowledged by a
notary public. Tenant shall deliver the Confirmation to Landlord
contemporaneously with Tenant’s execution of this Lease.


          Section
38.13 In the event of any litigation between the parties relating to this
Lease, the Premises, the Building or Property (including pretrial, trial,
appellate, administrative, bankruptcy or insolvency proceedings), the
prevailing party shall be entitled to recover its reasonable attorneys’ fees,
charges and disbursements as part of the judgment, award or settlement therein.


          Section
38.14 Landlord represents to Tenant that (i) prior to the date of this
Lease, Landlord has entered into several contracts providing for (w) the
installation of a new concierge desk in the lobby of the Building, (x) the
installation of security turnstiles in the lobby of the Building, (y) the
upgrading of passenger elevator cabs and (z) the alteration of ground floor
retail storefronts. Landlord further represents to Tenant that it is Landlord’s
present good-faith intention to perform and complete such improvements during
calendar year 2006; provided, however, that notwithstanding the foregoing
representation, Landlord reserves the right to defer the performance of any,
some or all of such improvements (although Landlord represents that no deferral
of such improvements is under consideration as of the date of this Lease).


ARTICLE 39


RIGHT OF FIRST OFFER


          Section
39.1 For purposes of this Article 39, the term “First Offer Space”
shall mean all or any portion of the sixteenth (16th) floor of the Building,
those portions of the eighteenth (18th) floor of the Building which are not
leased to Tenant pursuant to this Lease, and all or any portion of the
nineteenth (19th) floor of the Building, all as shown on the floor plans
annexed hereto as Exhibit J.


          Section
39.2 Provided no Event of Default shall have occurred and then be
continuing under this Lease, as of the date of the giving of Tenant’s Notice of
Acceptance (as such term is hereinafter defined), and provided further that,
if at any time subsequent to the date of this Lease, any portion of the First
Offer Space shall become Available for Leasing (as said term is defined in
Section 39.7), Landlord shall, before offering such First Offer Space to any
other prospective tenant (each, a “Prospective Tenant”), offer to Tenant
the right to add such First Offer Space to the Premises on a one-time basis
subject to the provisions of Section 39.4, upon all of the terms and conditions
of this Lease, except that: (i) the Fixed Rent payable with respect to such
First Offer Space shall be equal to the product of (A) the rentable square
footage of the portion of the First Offer Space offered by Landlord in the
First Offer Notice, determined in accordance with the rentable areas for each
floor set forth in Exhibit J annexed hereto, multiplied by (B) the Fixed Rent
per rentable square foot set forth in the Reference Data to this Lease which
corresponds to the portions of the Term during which the First Offer Space shall
be leased to 


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Tenant; (ii) the Base Tax Year attributable to the First Offer Space
shall be the New York City fiscal tax year in which the First Offer Space
Inclusion Date shall occur; (iii) the Base Operating Year attributable to the
First Offer Space shall be the calendar year in which the First Offer Space
Inclusion Date shall occur; (iv) Tenant’s Share attributable to the First Offer
Space shall be that percentage which shall be equal to a fraction, the
numerator of which shall be the rentable square footage of the First Offer
Space offered by Landlord in the First Offer Notice and the denominator of
which shall be 964,499 rentable square feet; (v) Tenant’s Tax Share
attributable to the First Offer Space shall be that percentage which shall be equal
to a fraction, the numerator of which shall be the rentable square footage of
the First Offer Space offered by Landlord in the First Offer Notice and the
denominator of which shall be 993,006 rentable square feet; (vi) the Term of
the Lease (the “First Offer Space Term”) with respect to the First Offer
Space shall commence on the First Offer Space Inclusion Date and shall end on
the Expiration Date of this Lease, as the same may be extended (so that the
First Offer Space Term shall be co-terminous with the Term of this Lease);
(vii) the Fixed Rent attributable to the First Offer Space shall be abated for
a period equal to (A) 365 days, multiplied by (B) a fraction the numerator of
which is the number of days between the First Offer Space Inclusion Date and
the Expiration Date (as the same may have been extended as of the First Offer
Space Inclusion Date in accordance with this Lease), and the denominator of
which is the total number of days in the- Term of this Lease (as the same may
have been extended as of the First Offer Space Inclusion Date in accordance
with this Lease), commencing upon the Commencement Date; (viii) the Tenant Fund
attributable to the First Offer Space shall be equal to (A) the product of
$68.50 multiplied by the rentable square footage of the First Offer Space
offered by Landlord in the First Offer Notice, multiplied by (B) a fraction the
numerator of which is the number of days between the First Offer Space
Inclusion Date and the Expiration Date (as the same may have been extended as of
the First Offer Space Inclusion Date in accordance with this Lease), and the
denominator of which is the total number of days in the Term of this Lease (as
the same may have been extended as of the First Offer Space Inclusion Date in
accordance with this Lease), commencing upon the Rent Commencement Date; (ix)
if the First Offer Space offered by Landlord to Tenant shall consist of a
partial floor, Landlord shall, at Landlord’s sole cost and expense, install
demising walls, corridors and doors on such partial floor prior to the First
Offer Space Inclusion Date so as to demise the First Offer Space so offered to
Tenant from the balance of the floor on which such First Offer Space is located
in compliance with all Requirements applicable thereto; and (x) provided
condenser water shall then be available and not allocated or reserved to other
space in the Building, at Tenant’s written request, made on or before the First
Offer Space Inclusion Date, Tenant shall have the right to increase the
Condenser Water Allocation by a number of additional tons condenser water equal
to the product of the number of tons in the Condenser Water Allocation as of
the date of the First Offer Notice multiplied by a fraction the numerator of
which shall be the rentable square footage of the First Offer Space offered by
Landlord in the First Offer Notice and the denominator of which shall be the
number of rentable square feet in the Premises as of the date of the First
Offer Notice; and the cost of such condenser water shall be paid by Tenant at
the rate then payable by Tenant in accordance with Section 3.5 of the Lease
(i.e., $500.00 per ton per annum increased from time to time by Landlord to
reflect Landlord’s increased cost of providing such condenser water).


          Section
39.3 Each offer of First Offer Space shall be made by Landlord in a written
notice (hereinafter called the “First Offer Notice”) delivered by
Landlord not earlier than six (6)


99






months prior to the date Landlord reasonably expects such First Offer
Space to be Available for Leasing to Tenant, which offer shall designate the
portion of the First Offer Space being offered. Tenant may accept the offer set
forth in the First Offer Notice by delivering to Landlord an unconditional
written notice of Tenant’s acceptance (hereinafter referred to as “Tenant’s
Notice of Acceptance”) of such offer within twenty (20) Business Days after
delivery by Landlord of the First Offer Notice to Tenant. In such event, the
First Offer Space shall be added to the Premises on the date Landlord delivers
such First Offer Space to Tenant for Tenant’s possession and be delivered to
Tenant vacant, free of any occupancies, in the First Offer Space Condition (as said
term is hereinafter defined) and in accordance with the terms of such First
Offer Notice and the provisions of Section 39.2 (hereinafter referred to as the
“First Offer Space Inclusion Date”). Time shall be of the essence with
respect to the giving of Tenant’s Notice of Acceptance. Landlord shall provide
Tenant the opportunity to inspect the First Offer Space at Tenant’s convenience
during the twenty (20) Business Day period following the giving of the First
Offer Notice to Tenant.


          Section
39.4 If Tenant does not accept (or fails to timely accept) an offer made by
Landlord pursuant to the provisions of this Article 39 with respect to the
First Offer Space designated in the First Offer Notice, Tenant shall be deemed
to waive its right to forever lease such First Offer Space in accordance with
the provisions of this Article 39, and Landlord shall have the right to enter
into a lease for such First Offer Space with one or more Prospective Tenants at
any time without being required to re-offer such First Offer Space to Tenant,
subject to the sentences next following. Notwithstanding the foregoing, if
Landlord offers any portion of the First Offer Space to Tenant pursuant to
Section 39.2 on or before the third (3rd) anniversary of the Commencement Date,
and Tenant does not accept (or fails to timely accept) an offer made by
Landlord pursuant to the provisions of this Article 39 with respect to the
First Offer Space designated in such First Offer Notice, Landlord shall have
the right to enter into a lease for such First Offer Space with one or more
Prospective Tenants at any time within the next twelve (12) months (which Lease
may include one or more renewal options) without being required to re-offer
such First Offer Space to Tenant until such First Offer Space once again
becomes Available for Leasing. In clarification of the foregoing, if Landlord
shall enter into a Lease for such First Offer Space within such twelve (12)
month period, and such First Offer Space becomes Available for Leasing during
the Term of this Lease, Landlord shall be required to reoffer such First Offer
Space to Tenant in accordance with the provisions of this Article 39. If
Landlord shall not have entered into a lease for such First Offer Space with
one or more Prospective Tenants at any time within the twelve (12) months
following the twenty-first (21st) day next following the giving of the First
Offer Notice, Landlord shall be required to re-offer such First Offer Space to
Tenant in accordance with the provisions of this Article 39.


          Section
39.5 If Tenant shall timely exercise its option set forth in this Article
39 with respect to the First Offer Space offered by Landlord in a first Offer
Notice, but Landlord shall be unable to give possession of such First Offer
Space or any portion thereof on the First Offer Space Inclusion Date because of
the holding over or retention of possession of any tenant, undertenant, or
occupant of such space, then Landlord shall not be subject to any liability for
failure to give possession on such First Offer Space Inclusion Date, and the
validity of the Lease shall not be impaired under such circumstances nor shall
the same be construed in any way to extend the Term of the Lease; but the Fixed
Rent and the Additional Rent payable hereunder for


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such space shall be abated until Landlord has tendered possession
thereof as provided in Section 39.3 by giving notice to Tenant that such space
is ready for Tenant’s occupancy. Landlord agrees that in the event that the
First Offer Space shall be unavailable for Tenant’s occupancy because of the
holding over of the then-existing tenant and if such holding over shall
continue for more than sixty (60) days, then Landlord, shall commence, and
diligently prosecute, a holdover proceeding against such existing tenant, and
Landlord shall use reasonable efforts to obtain possession of such space by
prosecution or settlement of such proceeding. If, however, the First Offer
Space shall be unavailable for Tenant’s occupancy within six (6) months after
the date set forth by Landlord as the First Offer Space Inclusion Date, then
Tenant shall have the right, by giving notice to Landlord within fifteen (15)
days after the expiration of such six (6) month period, to rescind Tenant’s
acceptance its option in the First Offer Notice set forth in this Article 39;
and thereafter Landlord shall be free to lease such First Offer Space offered
in such First Offer Notice to others on terms as Landlord may, in its sole
discretion, desire.


          Section
39.6 Tenant agrees that Landlord shall not be required to perform any work,
supply any materials or incur any expense to prepare such space for Tenant’s
occupancy, except as otherwise provided in Section 39.3 and except that
Landlord, at Landlord’s sole cost and expense, shall (i) demolish any tenant
improvements and alterations in the First Offer Space and deliver such First
Offer Space to Tenant vacant and in broom clean condition (such condition being
referred to as the “First Offer Space Condition”) and (ii) abate all ACM
in the First Offer Space prior to the date which shall be the later to occur of
the thirtieth (30th) day next following the date that Landlord has approved the
plans and specifications submitted by Tenant for the performance of Tenant’s
Alterations in the First Offer Space or the First Offer Space Inclusion Date.
Subject to the terms of this Article 39, Landlord shall deliver to
Tenant, in connection with Tenant’s applications to the applicable government
authority for a building permit or other similar approval regarding any
Alterations (whether the applicable work is to be performed within or outside
of the New Space), a Form ACP-5, duly executed by an appropriate party and
covering all of the First Offer Space and areas outside of the First Offer
Space which may be affected by Tenant’s Alterations. If (i) any ACM are located
in any areas of the Building (including, without limitation, the New Space),
(ii) such areas are affected by any of such Alterations, and (iii) the
abatement thereof is required to accommodate such Alterations, then (i)
Landlord, at Landlord’s sole cost and expense, shall perform such abatement,
with due diligence, in accordance with good construction practice and in
compliance with all applicable laws, in an effort to complete such abatement
within ninety (90) days after the date that Tenant gives Landlord notice
thereof, (ii) Landlord shall have reasonable access to the First Offer Space
(if necessary) for the purpose of performing such abatement, and (iii)
Landlord’s obligation to deliver such Form ACP-5 shall be delayed pending
Landlord’s completion of such abatement.


          Section
39.7 As used in this Article 39, the term “Available for Leasing”
shall mean that the First Offer Space is anticipated to become vacant during
the succeeding six (6) month period and is reasonably anticipated to become
available for leasing to Tenant; it being understood and agreed that the First
Offer Space shall not be deemed to be space “Available for Leasing” if:
(i) the tenant of such First Offer Space as of the date of this Lease exercises
a renewal right expressly contained in its lease of such First Offer Space, or
(ii) a tenant of the Building has an option, right of first offer, or other
similar right to lease the First Offer Space under another lease for space in
the Building as of the date hereof which has not then lapsed or 


101





been affirmatively waived in writing by such tenant. Without limiting
the foregoing and in order to avoid any doubt, the parties hereto agree that
the provisions of this Article 39 shall not apply, and Landlord shall not be
obligated to make any offer under this Article 39 if the First Offer Space in
question is subject to the right of any current tenant of the First Offer Space
to extend or renew its term pursuant to an option expressly set forth in its
lease, or encumbered by any additional space options, rights of first offer or
rights of first refusal granted to any tenant of the Building as of the date of
this Lease; and Tenant’s rights under this Article 39 shall be expressly
subject and subordinate to such rights of such tenants or occupants, all such
rights being set forth on Exhibit K to this Lease.


          Section
39.8 The provisions of this Article 39 shall be effective with respect to
each portion of the First Offer Space only if, on the date on which Tenant
gives the applicable Tenant’s Notice of Acceptance, Tenant shall not have
sublet fifty percent (50%) or more of the rentable area of the Premises to a
party other than an Affiliate of Tenant, except that such occupancy requirement
may be waived by Landlord, in its sole discretion.


          Section
39.9 In the event Landlord offers any First Offer Space to Tenant pursuant
to this Article 39, Tenant shall not have the right to accept such offer unless
there shall be a minimum of three (3) years remaining in the Term from and
after the date reasonably anticipated to be the First Offer Space Inclusion
Date, including the Renewal Term, if Tenant timely exercises its option to
extend the Term in accordance with Article 41 hereof.


          Section
39.10 Any failure of the parties to execute and deliver an amendment to
this Lease reflecting the addition of any First Offer Space shall not affect
the validity of Tenant’s exercise of its options under this Article 39.


          Section
39.11 The expiration of this Lease or termination of this Lease during the
Term shall also terminate and render void any option or election under this
Article 39, whether or not the same shall have been exercised; and nothing
contained in this Article 39 shall prevent Landlord from exercising any right
or action granted to or reserved by Landlord in this Lease to terminate this
Lease. No option or election of or by Tenant set forth in this Article 39 may
be severed from this Lease or separately sold, assigned (i.e., other than to a
permitted assignee in connection with a permitted assignment of this Lease) or
transferred.


ARTICLE 40


RIGHT OF FIRST OFFER- STORAGE SPACE


          Section
40.1 For purposes of this Article 40, the term “First Offer Storage
Space” shall mean the storage space located on the basement level (below
the ground level of the Building) of the Building and shown on the floor plans
annexed hereto as Exhibit L (provided, however, that in order to avoid
any doubt, the parties agree that the First Offer Storage Space shall be deemed
to exclude any storage space which is ancillary or appurtenant to or is
directly connected to any ground floor retail space in the Building).


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          Section
40.2 Provided no Event of Default shall have occurred and then be
continuing under this Lease, as of the date of the giving of “Tenant’s Notice
of Acceptance of Storage Space” (as such term is hereinafter defined), and
provided further that, if at any time subsequent to the date of this Lease, all
or any portion of the First Offer Storage Space shall become Available for
Leasing (as said term is defined in Section 40.7), Landlord shall, before
offering such First Offer Storage Space to a Prospective Tenant, offer to
Tenant the right to add such First Offer Storage Space to the Premises upon all
of the terms and conditions of this Lease, except that (i) the Fixed Rent
payable with respect to such First Offer Storage Space shall be equal to the
fair market rental value of said First Offer Storage Space as reasonably
determined by Landlord, and (ii) the Term of the Lease (the “First Offer
Storage Space Term”) with respect to the First Offer Storage Space shall
commence on the First Offer Storage Space Inclusion Date and shall end on the
Expiration Date (so that the First Offer Storage Space Term shall be co-terminous
with the Term of this Lease). Tenant agrees that Tenant’s occupancy of the
Storage Space shall be subject to all of the terms, covenants and conditions of
this Lease, except that: (i) Landlord shall not be obligated to perform any
work or incur any expense to prepare the Storage Space for Tenant’s use, other
than to demise the Storage Space in accordance with applicable Requirements,
provide a Building standard door with lockset and provide standard light
fixtures and deliver the Storage Space to Tenant free of debris and in the
First Offer Storage Space Condition; (ii) Tenant shall make no Alterations in
or to the Storage Space without Landlord’s prior written consent; (iii) Tenant
shall use the Storage Space only for the purpose of storage; (iv) Tenant may
not assign its rights with respect to the Storage Space or sublease the same or
allow the same to be used by others (other than a permitted subtenant or
occupant of the Premises or a permitted assignee of this Lease) without the
prior written consent of Landlord in each instance; and (v) Landlord shall not
be responsible for the rendition or delivery of any services, or utilities to
the Storage Space whatsoever including, without limitation, water, heating, air
conditioning, cleaning, or electricity (except that Landlord shall furnish
electricity through available facilities for standard lighting within the
Storage Space, and shall provide water for sprinklers and sprinklers).


          Section
40.3 Landlord’s offer shall be made by Landlord in a written notice
(hereinafter called the “First Offer Storage Space Notice”) delivered by
Landlord not earlier than six (6) months prior to the date Landlord reasonably
expects such First Offer Storage Space to be Available for Leasing to Tenant,
which offer shall designate the portion of the First Offer Storage Space being
offered. Tenant may accept the offer set forth in the First Offer Storage Space
Notice by delivering to Landlord written notice of Tenant’s acceptance
(hereinafter referred to as “Tenant’s Notice of Acceptance of Storage Space”)
of such offer within twenty (20) Business Days after delivery by Landlord of
the First Offer Storage Space Notice to Tenant. In such event, the First Offer
Storage Space shall be added to the Premises on the later to occur of (i) the
day that Tenant exercises its option as aforesaid, or (ii) the date
(hereinafter referred to as the “First Offer Storage Space Inclusion Date”)
that such First Offer Storage Space shall first become available for Tenant’s
possession and be delivered to Tenant vacant and broom clean, with all ACM
abated (such condition being referred to as the “First Offer Storage Space
Condition”). Time shall be of the essence with respect to the giving of
Tenant’s Notice of Acceptance of Storage Space. Landlord shall provide Tenant
the opportunity to inspect the First Offer Storage Space at Tenant’s
convenience during the twenty (20) Business Day period following the giving of
the First Offer Storage Space Notice to Tenant.


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          Section
40.4 If Tenant does not accept (or fails to timely accept) an offer made by
Landlord pursuant to the provisions of this Article 40 with respect to the
First Offer Storage Space designated in the First Offer Storage Space Notice,
Tenant shall be deemed to have forever waived its right to lease such First
Offer Storage Space in accordance with the provisions of this Article 40, and
Landlord shall have the right to enter into a lease for such First Offer
Storage Space with one or more Prospective Tenants of such First Offer Storage
Space at any time without being required to re-offer such First Offer Storage
Space to Tenant; provided, however, that if Tenant does not accept (or fails to
accept) an offer made by Landlord pursuant to the provisions of this Article 40
with respect to the First Offer Storage Space designated in the First Offer
Storage Space Notice and either (i) Landlord fails to lease such First Offer
Storage Space within twelve (12) months thereafter or (ii) Landlord receives a
bona fide offer (herein called a “Subsequent Offer”) to lease such
portion of the First Offer Storage Space from a prospective tenant within such
twelve (12) month period and the fixed annual rental rate applicable to such
Subsequent Offer is 90% or less of the fair market rental value rent quoted by
Landlord to Tenant in connection with the First Offer Storage Space Notice
previously delivered with respect to such First Offer Storage Space, then
Landlord shall reoffer such First Offer Storage Space to Tenant at the same
fixed annual rental rate contained in the Subsequent Offer and otherwise in
accordance with the provisions of this Article 40 under the circumstances set
forth in clause (ii), or if no Subsequent Offer has been received within such
twelve (12) month period, then Landlord shall reoffer the First Offer Storage
Space to Tenant pursuant to the provisions of this Article 40.


          Section
40.5 If Tenant shall timely exercise the option set forth in this Article
40, but Landlord shall be unable to give possession of the First Offer Storage
Space or any portion thereof on the First Offer Storage Space Inclusion Date
because of the holding over or retention of possession of any tenant,
undertenant, or occupant of such space, then Landlord shall not be subject to
any liability for failure to give possession on such First Offer Storage Space
Inclusion Date, and the validity of the Lease shall not be impaired under such
circumstances nor shall the same be construed in any way to extend the Term of
the Lease; but the Fixed Rent and the Additional Rent payable hereunder for
such space shall be abated until Landlord has tendered possession thereof as
provided in Section 40.3 by giving notice to Tenant that such space is ready
for Tenant’s occupancy. Landlord agrees that in the event that the First Offer
Storage Space shall be unavailable for Tenant’s occupancy because of the
holding over of the then-existing tenant and if such holding over shall
continue for more than sixty (60) days, then Landlord, shall commence, and
diligently prosecute, a holdover proceeding against such existing tenant, and
Landlord shall use reasonable efforts to obtain possession of such space by
prosecution or settlement of such proceeding. If, however, the First Offer
Storage Space shall be unavailable for Tenant’s occupancy within six (6) months
after the date set forth by Landlord as the First Offer Storage Space Inclusion
Date, then Tenant shall have the right, by giving notice to Landlord within
fifteen (15) days after the expiration of such six (6) month period, to rescind
Tenant’s exercise of its option set forth in this Article 40; and thereafter
Landlord shall be free to lease such First Offer Storage Space offered in such
First Offer Storage Space Notice to others on terms as Landlord may, in its
sole discretion, desire.


          Section
40.6 Tenant agrees that Landlord shall not be required to perform any work,
supply any materials or incur any expense to prepare such space for Tenant’s
occupancy, except


104





as otherwise set forth in this Article 40. In this Article 40, the term
“fair market rental value” shall mean the annual fixed rental
rate at which landlords are leasing storage space comparable to the First Offer
Storage Space for similar lease terms in Comparable Buildings (as hereafter
defined), with appropriate adjustments to take account of variations in
location, size and all other relevant factors.


          Section
40.7 As used in this Article 40, the term “Available for Leasing”
shall mean that the First Offer Storage Space is anticipated to become vacant
during the succeeding six (6) month period and is reasonably anticipated to
become available for leasing to Tenant; it being understood and agreed that the
First Offer Storage Space shall not be deemed to be space “Available for
Leasing” if the tenant or occupant of such First Offer Storage Space
exercises a renewal right expressly contained in its lease of such First Offer
Storage Space, or (ii) a tenant of the Building has an option, right of first
offer, or other similar right to lease the First Offer Storage Space under
another lease for space in the Building as of the date hereof which has not
then lapsed or been affirmatively waived in writing by such tenant. Without
limiting the foregoing and in order to avoid any doubt, the parties hereto
agree that the provisions of this Article 40 shall not apply, and Landlord
shall not be obligated to make any offer under this Article 40, if the First
Offer Storage Space in question is subject to the right of any current tenant
of the First Offer Storage Space to extend or renew its term pursuant to an
option expressly set forth in its lease, or encumbered by any additional space
options, rights of first offer or rights of first refusal granted to any tenant
of the Building as of the date of this Lease; and Tenant’s rights under this
Article 40 shall be expressly subject and subordinate to such rights of such
tenants or occupants.


          Section
40.8 The provisions of this Article 40 shall be effective with respect to
each portion of the First Offer Storage Space only if, on the date on which
Tenant gives the applicable Tenant’s Notice of Acceptance, Tenant shall not
have sublet fifty percent (50%) or more of the rentable area of the Premises to
a party other than an Affiliate of Tenant, except that such occupancy
requirement may be waived by Landlord, in its sole discretion.


          Section
40.9 Any failure of the parties to execute and deliver an amendment to this
Lease reflecting the addition of any First Offer Storage Space shall not affect
the validity of Tenant’s exercise of its options under this Article 40.


          Section
40.10 The expiration of this Lease or termination of this Lease during the
Term shall also terminate and render void any option or election under this
Article 40, whether or not the same shall have been exercised; and nothing
contained in this Article 40 shall prevent Landlord from exercising any right
or action granted to or reserved by Landlord in this Lease to terminate this
Lease. No option or election of or by Tenant set forth in this Article 40 may
be severed from this Lease or separately sold, assigned (i.e., other than to a
permitted assignee in connection with a permitted assignment of this Lease) or
transferred.


105





ARTICLE 41


RENEWAL OPTION


          Section
41.1 Provided no Event of Default shall have occurred and then be
continuing under this Lease, as of the date of the giving of the “Renewal
Notice” (as such term is hereinafter defined), Tenant shall have one option
to extend the Term of the Lease for a renewal term (the “Renewal Term”)
of five (5) years commencing on the day after the originally scheduled
Expiration Date and ending on the last day of the month in which the fifth (5th)
anniversary of the originally scheduled Expiration Date shall occur. Such
option to renew shall be exercisable by written notice (the “Renewal Notice”)
to Landlord given not later than twelve (12) months prior to the originally
scheduled Expiration Date. The Renewal Term shall constitute a further
extension of the Term of the Lease and shall be upon all of the same terms and
conditions as the said Term, except that (i) there shall be no further option
to renew the Term of the Lease in the Renewal Term, (ii) Landlord shall not be
required to furnish any materials or perform any work to prepare the Premises
for Tenant’ s occupancy or provide any credit or allowance to Tenant, and
Landlord shall not be required to reimburse Tenant for any Alterations made or
to be made by Tenant, (iii) the Fixed Rent for the Renewal Term shall be
payable at a rate per annum equal to ninety-five percent (95%) of the fair
market rental value (as hereinafter defined) of the Premises as of the first
day of the Renewal Term, determined in accordance with the provisions of this
Article 41; (iv) the Base Year for Taxes shall be the New York City fiscal year
commencing in the calendar year in which the commencement of the Renewal Term
shall occur, and (v) the Base Year for Operating Expenses shall be the calendar
year in which the commencement of the Renewal Term shall occur. In this Article
41, the term “fair market rental value” shall mean the annual fixed
rental rate at which landlords are leasing office space comparable to the Premises
for a five (5) year lease term in buildings (“Comparable Buildings”)comparable
to the Building and located in the area in Manhattan bounded by 27th Street to
the South, 42nd Street to the North, Third Avenue to the East and Sixth Avenue
to the West, with appropriate adjustments to take account of variations in
location, size and all other relevant factors.


          Section
41.2 The initial determination of the “fair market rental value” of
the Premises for the Renewal Term shall be made by Landlord in good faith.
Provided that the Renewal Notice shall so request, Landlord shall give notice
(the “FMRV Notice”) to Tenant of Landlord’s initial determination of the
fair market rental value at least nine (9) months prior to the Expiration Date.
If the Renewal Notice shall not contain a request that Landlord furnish the
FMRV Notice at least nine (9) months prior to the Expiration Date, Landlord may
give Tenant the FMRV Notice at any time thereafter, but at least one hundred
eighty (180) days prior to the commencement of the Renewal Term.
Notwithstanding that the Renewal Term shall not yet have occurred, such initial
determination of fair market rental value shall be final and binding in fixing
the fair market rental value, unless, within thirty (30) days after Landlord
shall have given the FMRV Notice to Tenant, Landlord shall receive a notice
from Tenant (the “FMRV Objection Notice”): (i) advising Landlord that
Tenant disagrees with the initial determination of fair market rental value set
forth in the FMRV Notice, and (ii) proposing a specific alternative fair market
rental value, which shall have been determined in good faith by Tenant. If
Landlord and Tenant shall fail to agree upon the fair market rental value
within thirty (30) days after Landlord shall 


106





have received the FMRV Objection Notice, then Landlord and Tenant each
shall give notice to the other setting forth the name and address of an
arbitrator designated by the party giving such notice. If either party shall
fail to give notice of such designation within ten (10) days after the
expiration of said 30-day period, then the first arbitrator chosen shall make
the determination alone. If two arbitrators shall have been designated, such
two arbitrators shall, within thirty (30) days following the designation of the
second arbitrator, designate a third arbitrator. If the two arbitrators shall
fail to agree upon the designation of such third arbitrator within ten (10)
days after the expiration of said 30-day period, then either party may apply to
the American Arbitration Association or any successor thereto having
jurisdiction for the designation of such arbitrator. All arbitrators shall be
real estate brokers or consultants who shall have had at least fifteen (15)
years continuous experience in the business of appraising or managing
Comparable Buildings or acting as real estate agents or brokers with respect to
Comparable Buildings. The three arbitrators shall conduct such hearings and
investigations as they may deem appropriate and shall, within thirty (30) days
after the designation of the third arbitrator, choose by a majority of the
arbitrators either the determination of the fair market rental value made by
Landlord and set forth in the FMRV Notice, or the determination of the fair
market rental value proposed by Tenant and set forth in the FMRV Objection
Notice, and that choice by the majority of the arbitrators shall be binding
upon Landlord and Tenant. Each party shall pay its own counsel fees and
expenses, if any, in connection with any arbitration under this Article 41,
including the expenses and fees of any arbitrator selected by it in accordance
with the provisions of this Article, and the parties shall share equally all
other expenses and fees of any such arbitration. The determination rendered in
accordance with the provisions of this Section 41.2 shall be final and binding
in fixing the fair market rental value. The arbitrators shall not have the
power to add to, modify or change any of the provisions of this Lease or to
select a fair market rental value other than one of the two alternative fair
market rental values proposed by Landlord and Tenant.


          Section
41.3 If for any reason the fair market rental value shall not have been
determined prior to the commencement of the Renewal Term, then, until the fair
market rental value and, accordingly, the Fixed Rent, shall have been finally
determined, the Fixed Rent for and during the Renewal Term shall be equal to
the fair market rental value proposed by Landlord. Upon final determination of
the fair market rental value, an appropriate adjustment to the Fixed Rent shall
be made reflecting such final determination, and Landlord or Tenant, as the
case may be, shall refund or pay to the other any overpayment or deficiency, as
the case may be, in the payment of Fixed Rent from the commencement of the
Renewal Term to the date of such final determination.


          Section
41.4 It is an express condition of the option granted to Tenant pursuant to
the terms of this Article 41 that time is of the essence with respect to
Tenant’s exercise of such option in the manner, and within the periods, above
provided.


ARTICLE 42


RENT CONTROL


          Section
42.1 If at the commencement of, or at any time or times during the Term of
this Lease, the Rental reserved in this Lease shall not be fully collectible by
reason of any Requirement, Tenant shall enter into such agreements and take
such other steps (without


107







additional expense to Tenant) as Landlord may request and as may be
legally permissible to permit Landlord to collect the maximum rents which may
from time to time during the continuance of such legal rent restriction be
legally permissible (and not in excess of the amounts reserved therefor under
this Lease). Upon the termination of such legal rent restriction prior to the
expiration of the Term, (a) the Rental shall become and thereafter be payable
hereunder in accordance with the amounts reserved in this Lease for the periods
following such termination, and (b) Tenant shall pay to Landlord, if legally
permissible, an amount equal to (i) the items of Rental which would have been
paid pursuant to thus Lease but for such legal rent restriction less (ii) the
rents paid by Tenant to Landlord during the period or periods such legal rent
restriction was in effect.


108





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


	
  

 	
  

 	
  

 	
  

 	
  

 
	
 WITNESSES:

 	
  

 	
 COTY INC.,
 Tenant

 
	
  

 	
  

 	
  

 
	
           /s/
 ILLEGIBLE

 	
  

 	
 By:

 	
 /s/ Michael
 Fishoff

 	
  

 
	

 


 	
  

 	
  

 	

 


 	
  

 
	
 Name:

 	
  

 	
  

 	
 Name:
 Michael Fishoff

 	
  

 
	
  

 	
  

 	
  

 	
 Title:   Chief
 Financial Officer

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
           /s/
 ILLEGIBLE

 	
  

 	
 Fed Id. No.
 13-3823358

 	
  

 
	

 


 	
  

 	
  

 	
  

 	
  

 
	
 Name:

 	
  

 	
  

 	
  

 	
  

 


 (LANDLORD’S
SIGNATURE APPEARS ON THE PAGE NEXT FOLLOWING)





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


	
  

 	
  

 	
  

 	
  

 	
  

 
	
 WITNESSES:

 	
  

 	
 SEB
 IMMOBILIEN-INVESTMENT

 GMBH, Landlord

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
           /s/
 ILLEGIBLE

 	
  

 	
 By:

 	
 /s/ Joachim
 Herpell

 	
  

 
	

 


 	
  

 	
  

 	

 


 	
  

 
	
 Name:

 	
  

 	
  

 	
 Name:
 Joachim Herpell

 	
  

 
	
  

 	
  

 	
  

 	
 Title:   Procurist

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
           /s/
 Karin Kuebart

 	
  

 	
 By:

 	
 /s/ Martina
 Brezina

 	
  

 
	

 


 	
  

 	
  

 	

 


 	
  

 
	
 Name: Karin
 Kuebart

 	
  

 	
  

 	
 Name: Martina Brezina

 	
  

 
	
  

 	
  

 	
  

 	
 Title:   Executive Officer

 	
  

 
						









SCHEDULE A


RULES AND REGULATIONS


          (1) The
sidewalks, entrances, passages, courts, elevators, vestibules, stairways,
corridors, or halls shall not be obstructed or encumbered by Tenant or used for
any purpose other than ingress and egress to and from the Premises and for
delivery of merchandise and equipment in prompt and efficient manner, using elevators
and passageways designated for such delivery by Landlord. Tenant shall not
invite to the 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
plazas entrances, corridors, elevators and other facilities of the Building by
other tenants. Tenant shall not encumber or obstruct, or permit the
encumbrances or obstruction of any of the sidewalks, plazas, entrances,
corridors, elevators, fire exits, or stairways of the Building. Landlord
reserves the right to control and operate the public portions of the Building,
the public facilities, as well as the facilities furnished for the common use
of the tenants, in such manner as Landlord deems best for the benefit of the
tenants generally.


          (2) No
awnings, air-conditioning units, fans or other projections shall be attached to
the outside walls of the Building. No curtains, blinds, shades, or screens,
other than those which conform to Building standards as established by Landlord
from time to time, shall be attached to or hung in, or used in connection with,
any window or door of the Premises. Such curtains, blinds, shades, screens or
other fixtures must be of a quality, type, design and color, and attached to
the manner reasonably approved by Landlord. All electrical fixtures hung to
offices or spaces along the perimeter of the Premises must be of a quality,
type, design and bulb color approved by Landlord, which consent shall not be
withheld or delayed unreasonably unless the prior consent of Landlord has been
obtained for other lamping.


          (3) Except
as otherwise provided in the Lease, no sign, advertisement, notice or other
lettering shall be exhibited, inscribed, painted or affixed by Tenant on any
part of the outside of the Premises or Building or on the inside of the
Premises if the same can be seen from the outside of the Premises without the
prior written consent of Landlord except that the name of Tenant may appear on
the entrance door of the Premises. In the event of the violation of the
foregoing by Tenant, if Tenant has refused to remove same after reasonable
notice from Landlord, Landlord may remove same without any liability, and may
charge the expense incurred by such removal to Tenant. Interior signs on doors
and directory tablet shall be of a size, color and style reasonably acceptable
to Landlord.


          (4) The
exterior windows and doors that reflect or admit light and air into the
Premises or the halls, passageways or other public places in the Building,
shall not be covered or obstructed by Tenant.


          (5) No
showcases or other articles shall be put in front of or affixed to any part of
the exterior of the Building, nor placed in the halls, corridors or vestibules,
nor shall any article obstruct any air-conditioning supply or exhaust.


          (6) The
water and wash closets and other plumbing fixtures shall not be used for any
purposes other than those for which they were constructed, and no sweepings,
rubbish, rags,


S-A-1





acids or other substances shall be deposited therein. All damages
resulting from any misuse of the fixtures shall be borne by Tenant.


          (7) Subject
to the provisions of Article 3 of this Lease, Tenant shall not mark, paint,
drill into, or to any way deface any part of the Premises or the Building. No
boring, cutting or stringing of wires shall be permitted, except with the prior
written consent of Landlord, which consent shall not be unreasonably withheld
or delayed, and as Landlord may direct.


          (8) No space
in the Building shall be used for manufacturing, for the storage of
merchandise, or for the sale at retail to the general public of merchandise,
goods or property of any kind, at auction or otherwise, to the general public.


          (9) Tenant
shall not make, or permit to be made, any unseemly or disturbing noises or
disturb or interfere with occupants of this or neighboring buildings or
premises or those having business with them whether by the use of any musical
instrument, radio, television set, talking machine, unmusical noise, whistling,
singing, or in any other way.


          (10)
Tenant, or any of Tenant’s employees, agents, visitors or licensees, shall not
at any time bring or keep upon the Premises any inflammable, combustible or
explosive fluid, chemical or substance except such as are incidental to usual
office occupancy.


          (11) No
additional locks or bolts of any kind shall be placed upon any of the doors or
windows by Tenant, nor shall any changes be made in existing locks or the mechanism
thereof, unless Tenant promptly provides Landlord with the key or combination
thereto. Tenant must, upon the termination of its tenancy, return to Landlord
all keys of stores, offices and toilet rooms, and in the event of the loss of
any keys furnished at Landlord’s expense, Tenant shall pay to Landlord the cost
thereof.


          (12) No
bicycles, vehicles or animals of any kind except for seeing eye dogs shall be
brought into or kept by Tenant to or about the Premises or the Building.


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


          (14) Tenant
shall not occupy or permit any portion of the Premises demised to it to be
occupied as an office for a public stenographer or typist, or for the
possession, storage, manufacture, or sale of liquor, narcotics, dope, or as a
barber or manicure shop, or as an employment bureau. Tenant shall not engage or
pay any employees on the Premises, except those actually working for Tenant at
the Premises.


          (15) Tenant
shall not purchase spring water, ice, towels or other like service, or accept
barbering or bootblacking services in the Premises, from any company or persons
not approved 


S-A-2





by Landlord, which approval shall not be withheld or delayed
unreasonably and at hours and under regulations other than as reasonably fixed
by Landlord.


          (16)
Landlord shall have the right to prohibit any advertising by Tenant which, in
Landlord’s reasonable opinion, tends to impair the reputation of the Building
or its desirability as a building for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising.


          (17)
Landlord reserves the right to exclude from the Building between the hours of 6
P.M. and 8 A.M. and at all hours on days other than Business Days all persons
who do not present a pass to the Building signed or approved by Landlord.
Tenant shall be responsible for all persons for whom a pass shall be issued at
the request of Tenant and shall be liable to Landlord for all acts of such
persons. Tenant shall be responsible for all persons for whom a pass shall be
issued at the request of Tenant and shall be liable to Landlord for all acts of
such persons. Any person whose presence in the Building at any time shall, in
the reasonable judgment of Landlord, be prejudicial to the safety or
preservation of the Building, its property or its tenants or their property may
be denied access to the Building or may be ejected therefrom., In the case of
invasion, riot, public excitement or other commotion, Landlord may prevent all
access to the building during the continuance of same, by the closing the doors
or otherwise, for the safety of the tenants and protection of the property in
the Building. landlord may require any persons leaving the Building with any
package or other object to exhibit a pass from tenant, or any other 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 Tenant against the removal of property from the
Premises of Tenant. Landlord shall in no way be liable to tenant for damages or
loss arising from the admission, exclusion, or ejection of any person to or
from the Tenants premises or the Building under the provisions of this Rule.


          (18) Tenant
shall, at its expense, provide artificial light for the employees of Landlord
while doing janitor service or other cleaning, and in making repairs or
alterations to the Premises.


          (19) Except
as otherwise expressly provided in this Lease, the requirements of Tenant will
be attended to only upon written application at the office of the Building.
Building employees shall not perform any work or do anything outside of the
regular duties, unless under special instructions from the office of Landlord.


          (20)
Visible canvassing, soliciting and peddling in the Building is prohibited and
Tenant shall cooperate to prevent the same.


          (21) There
shall not be used in any space, or in the public halls of the Building, either
by Tenant or by jobbers or others, in the delivery or receipt of merchandise,
any hand trucks, except those equipped with rubber tires and side guards.


          (22) Tenant
shall keep the entrance doors to the Premises, and the windows of the Premises
closed at all times. Tenant shall keep all entrance doors to the Premises on
full floors closed between the hours of 8:00 p.m. and 8:00 a.m. on Business
Days and at all other hours on


S-A-3





days other than Business Days. All windows in the Premises shall be
kept closed at all times and all blinds therein above the ground floor shall be
lowered when and as reasonably required because of the position of the sun,
during the operation of the Building air conditioning system, to cool or
ventilate the Premises.


          (23)
Landlord shall have the right to require that all messengers and other Persons
delivering packages, papers and other materials to Tenant (i) be directed to
deliver such packages, papers and other materials to a Person designated by
Landlord who will distribute the same to Tenant or (ii) be escorted by a person
designated by Landlord to deliver the same to Tenant.


          (24)
Landlord and its agents reserve the right to inspect all packages, boxes, bags,
handbags, attaché cases, suitcases, and other items carried into the Building,
and to refuse entry into the Building to any person who either refuses to
cooperate with such inspection or who is carrying any object which may be
dangerous to persons or property. In addition, Landlord reserves the right to
implement such further measures designed to ensure safety of the Building and
the persons and property located therein as Landlord shall deem necessary or
desirable.


          (25) Except
as specifically provided to the contrary in this Lease, Tenant shall not do any
cooking, conduct any restaurant, luncheonette or cafeteria for the sale or
service of food or beverages to its employees or to others, or cause or permit
any odors of cooking or other processes any unusual or objectionable odors to
emanate from the Premises. Tenant may, at its sole cost and expense, and
subject to compliance with all applicable Requirements and the provisions of
Article 3 and Article 4 of this Lease, install and maintain vending machines
for the exclusive use by Tenant, its officers, employees and business guests,
provided that each machine, where necessary shall have a waterproof mat
thereunder and be connected to a drain.


          (26) If the
Premises shall become infested with insects or vermin, Tenant, at its sole cost
and expense, shall cause the Premises to be exterminated from time to time to
the satisfaction of Landlord, and shall employ such exterminators therefor as
shall be approved by Landlord.


S-A-4





Schedule B


Tenant Cleaning Specifications


RESTROOMS


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Service

 	
  

 	
 Daily/

 Nightly

 	
  

 	
 Weekly

 	
  

 	
 Monthly

 	
  

 	
 Quarterly

 	
  

 	
 Annually

 	
  

 	
 Other

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
 Empty
 and sanitize trash containers, provide and install plastic liners in all
 waste receptacles,  clean and sanitize all
 restroom fixtures, wipe clean all counters, clean mirrors, wipe clean
 chrome/brightwork, spot wipe partitions, sweep and damp mop floors using a
 germicidal cleaner. Strategically place multi-lingual wet floor warning signs
 in immediate work area. Leave signs in  place
 until floor is dry. (Contractor to provide and install all plastic liners
 necessary in all lavatories at no additional cost)

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 _

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Provide and install all
 hand towels, toilet tissue, hand soap sanitary napkins and trash liners.
 (Hand towels, toilet tissue and hand soap shall be furnished by Owner on
 multi tenant floors; Single tenant floors shall be the responsibility of the
 tenant)

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Dust and clean all return
 air vents.

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Wash all restroom
 partitions on both sides using a germicidal disinfectant.

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Machine scrub all restroom
 floors using germicidal floor cleaner.

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Remove finger marks from
 walls, door, and painted surfaces.

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Clean and wash all door
 ventilating louvers.

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Hand wash and polish all
 wall tiles and stall surfaces.

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Dust
 ceiling light lenses.

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Wash and disinfect all
 trash containers.

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Remove rubbish to a
 designated area in the building.

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Report all mechanical
 deficiencies, i.e. dripping faucets, burnt out lights, etc., to the Building
 Manager.

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 



TENANT AREAS


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Service

 	
  

 	
 Daily/

 Nightly

 	
  

 	
 Weekly

 	
  

 	
 Monthly

 	
  

 	
 Quarterly

 	
  

 	
 Annually

 	
  

 	
 Other

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
 All stone, ceramic tile,
 marble, terrazzo and  other unwaxed or untreated hard flooring
 shall be swept using an approved dust-down preparation.

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 


S-B-1









	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Service

 	
  

 	
 Daily/
Nightly

 	
  

 	
 Weekly

 	
  

 	
 Monthly

 	
  

 	
 Quarterly

 	
  

 	
 Annually

 	
  

 	
 Other

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
 Damp mop and scrub all
 stone, ceramic tile, marble, terrazzo and other unwaxed or untreated hard
 flooring.

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 All linoleum, rubber,
 Pirelli tiled, asphalt tile and other similar types of hard flooring (that
 may be waxed or treated) shall be swept using an approved dust-down
 preparation. Waxing and interim buffing shall be done at Tenant’s  expense.

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 Damp
 mop all linoleum, rubber, Pirelli tiled, asphalt tile and other similar types
 of hard flooring (that may be waxed or treated).

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 All carpeting and rugs
 shall be carpet swept

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 Fully vacuum all carpets
 from wall to wall using a crevice tool to effectively vacuum all edges.

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 Hand dust all areas below
 five (5) feet to include but not limited to furniture, fixtures, telephones,
 equipment, file cabinets, window sills, convector closure tops, chair and
 table legs and rungs, baseboards, ledges, moldings, all door and other
 ventilating louvers.

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 Dust
 all areas above five (5) feet high using a  soft treated dusting cloth to include but not limited to all ledges,
 moldings, signage, picture frames, charts, light fixtures and lenses,  recessed lighting, switch plates, file cabinets,
 furniture etc.

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 Wipe clean all baseboards
 using an approved baseboard cleaner.

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 Dust all door, floor and
 wall HVAC louvers.

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 Wipe clean all ceiling
 diffusers.

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 Dust
 all window blinds.

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 Remove clean and replace
 all ceiling light lenses.

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 Empty clean and damp wipe
 all waste  receptacles. Remove waste paper and waste materials
 to designated area in the building. Recyclable materials shall be removed in accordance
 with building recycling program. Furnish and install, at
 no additional charge to the owner or building management, all plastic liners
 required for removal of all rubbish from the building.

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 Wash all trash containers.
 Monthly or more often if needed.

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 Wipe clean all telephone
 handsets and cradles using a germicidal cleanser.

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 Remove
 finger marks and scuff marks from partition walls and door surfaces on sight.

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 X

 
	
  

 
	
 Sweep all hard surfaced
 and or vacuum all carpeted private staircases.

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 


S-B-2









	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Service

 	
  

 	
 Daily/

 Nightly

 	
  

 	
 Weekly

 	
  

 	
 Monthly

 	
  

 	
 Quarterly

 	
  

 	
 Annually

 	
  

 	
 Other

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
 Wipe
 clean all metal hardware, metal fixtures and other brightwork.

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 Wipe clean all metal
 elevator shaft way doors and frames.

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 Wipe
 clean all metal window frames, mullions, terrace doors and other unpainted
 interior metal surfaces of the perimeter wall of the building  each time the interior of the windows are  washed.

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 X

 
	
  

 
	
 Dust and wipe clean
 interior and exterior of all fire extinguisher cabinets.

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 Normal
 floor cleaning only shall be performed in tenants’ computer equipment areas,
 food  preparation and
 dining areas.

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 



GENERAL OFFICES AREAS - UNOCCUPIED SPACE


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Service

 	
  

 	
 Daily/

 Nightly

 	
  

 	
 Weekly

 	
  

 	
 Monthly

 	
  

 	
 Quarterly

 	
  

 	
 Annually

 	
  

 	
 Other

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
 Police
 all un-occupied space. Remove all foreign matter and debris on site. Remove
 all collected trash to designated area.

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 
	
 Report
 all mechanical deficiencies, incidents or irregularities to the Building
 Manager as soon as they are observed.

 	
  

 	
  

 	
  

 	
 X

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 



Additionally,
Landlord shall Clean the exterior of the windows of the Premises not less than
two (2X) times per year.


S-B-3





EXHIBIT A


[Floor Plan]



A-1






[Floor Plan]


A-2





EXHIBIT B


LANDLORD’S WORK


	
  

 	
  

 
	
 I.

 	
 Landlord’s Work shall consist of the following:

 
	
  

 	
  

 
	
 1.

 	
 Landlord shall demolish existing tenant improvements in the Premises,
 including, but not limited to
 flooring, ceilings, light fixtures, partitions, equipment, wiring and cabling, and deliver the Premises to
 Tenant in a core and shell condition.
 Floors will be delivered patched and ready for floor coverings.

 
	
  

 	
  

 
	
 2.

 	
 Landlord shall abate all ACM (as said term is defined in Section 6.3
 of the Lease) located in any portion
 of the Premises in accordance with Section 6.3 of the Lease on or before the Commencement Date.

 
	
  

 	
  

 
	
 3.

 	
 Landlord shall install demising walls, corridors and doors on the
 18th floor at the locations shown on the floor plan annexed hereto as Exhibit
 N, so as to demise those portions of
 the Premises located on such floors from the balance of such floors in compliance with all Requirements
 applicable thereto.

 
	
  

 	
  

 
	
 4.

 	
 All structural columns and core and shell walls shall be enclosed and
 firestopped within twenty (20)
 Business Days of the Commencement Date.

 
	
  

 	
  

 
	
 5.

 	
 Landlord shall provide, install and put in working order new (or, if
 a Mammoth brand unit is unavailable,
 an equivalent or better manufacturer) package, water cooled DX, VAV air conditioning units (the
 “Tenant VAC Units”) having an
 aggregate 178 tons of cooling capacity for use by Tenant on or before
 May 31, 2006. The specifications for
 the Tenant VAC Units are attached hereto as
 Appendix 1 to this Exhibit B. The Tenant VAC Units shall be
 capable of maintaining an interior
 temperature of 74 degrees Fahrenheit when the summer outdoor conditions are 92 degrees
 Fahrenheit dry bulb and 73 degrees Fahrenheit wet bulb. The aforementioned conditions shall be capable of
 being maintained while offsetting a
 lighting and equipment load of four (4) watts per usable square foot, and an occupancy rate of one person
 per 150 usable square feet. The Tenant
 VAC Units shall be capable of providing outdoor air for ventilation at
 a rate of approximately 15CFM per person or .133 cfm per usable square foot.
 The VAC system shall utilize either
 mechanical refrigeration or the A/C units waterside economizer operation or a combination of both as required to
 maintain interior space temperatures
 as aforementioned.

 
	
  

 	
  

 
	
 6.

 	
 Landlord shall deliver the perimeter heating system fully operational
 in good working order with
 thermostatically controlled Danfus valves on or before May 31, 2006.

 


B-1









	
  

 	
  

 
	
 7.

 	
 Landlord shall ensure a sufficient number of points of connection is
 available for Tenant’s tie-in to the Building’s “Class E” system on or
 before the substantial completion of
 Tenant’s Initial Alterations.

 
	
  

 	
  

 
	
 8.

 	
 Landlord shall provide supply points for VAC in the mechanical rooms
 presently located in the Premises on
 or before the substantial completion of Tenant’s Initial Alterations.
 However, for optimum operation and feasibility, Landlord shall make the final determination as to the
 location.

 
	
  

 	
  

 
	
 9.

 	
 Perimeter heating system covers will be delivered as is, except that
 Landlord shall repair existing
 convector covers so they are free of dents and rust on or before the
 substantial completion of Tenant’s Initial Alterations.

 
	
  

 	
  

 
	
 II.

 	
 In this Lease: (i) the term “Landlord’s Pre-Commencement Date Work”
 shall mean, collectively, the work described in paragraphs 1, 2 and 3 above;
 and (ii) the term “Landlord’s Post-Commencement Date Work” shall mean,
 collectively, the work described in paragraphs 4, 5, 6, 7, 8 and 9 above.
 References in this Lease to “Landlord’s Work” shall refer,
 collectively, to Landlord’s Pre-Commencement Date Work and to Landlord’s
 Post-Commencement Date Work, unless the context otherwise requires.

 
	
  

 	
  

 
	
 III.

 	
 Intentionally deleted.

 
	
  

 	
  

 
	
 IV.

 	
 If the substantial completion of Landlord’s Work, if any, or delivery
 of possession of the Premises by Landlord to Tenant, is delayed due to any
 act or omission of Tenant or Tenant’s employees, agents or contractors where
 Tenant or Tenant’s employees, agents or contractors have a duty to act under
 the Lease (each a “Tenant Delay”) then (i) such portion of Landlord’s
 Work shall be deemed substantially complete on the date Landlord’s Work would
 have been substantially completed, or possession would have been delivered,
 but for that act or omission (as reasonably determined by Landlord); and (ii)
 Tenant shall reimburse Landlord for all reasonable additional costs actually
 incurred by Landlord as the result of such delay; provided, in each case,
 that Landlord gives Tenant at least two (2) Business Days’ advance notice of
 the onset of such Tenant Delay and Tenant fails to remedy the same within two
 (2) Business Days of such notice.

 
	
  

 	
  

 
	
 V.

 	
 Landlord shall exert commercially reasonable efforts to cause the
 installation of the Tenant VAC Units described in Paragraphs 5 and 6 of
 Paragraph I of this Exhibit B to be substantially completed and in working
 order on or before May 31, 2006 (collectively, the “Tenant VAC Unit
 Installation Work”). If the Tenant VAC Unit Installation Work is not
 substantially completed by the date set forth above, subject to delays caused
 by Unavoidable Delays and/or Tenant Delay, and if such failure to
 substantially complete the Tenant VAC Unit Installation Work by the date set
 forth above shall actually delay Tenant’s ability to perform Tenant’s Initial
 Alterations after Tenant shall have taken reasonable steps in accordance with
 generally accepted construction practices to reschedule work so as to
 eliminate the impact of such incomplete Tenant VAC Unit Installation Work,
 then (A) the Fixed Rent Abatement Period (as said term is defined in the
 Lease) shall be extended for one (1) additional day for each day that the
 Tenant’s 

 


B-2









	
  

 	
  

 
	
  

 	
 Initial Alterations is actually delayed during the period commencing
 on June 1, 2006 and ending on the day immediately preceding the date that the
 Tenant’s VAC Unit Installation Work shall be substantially completed and
 notice of the same has been delivered to Tenant (or if Tenant shall have
 elected to exercise the self-help rights provided in clause (B) of this
 Paragraph V, the date the Tenant VAC Unit Installation Work should have been substantially
 completed, as determined by mutual agreement of Landlord and Tenant or by an
 arbitrator pursuant to an arbitration conducted in accordance with the
 provisions of Section 38.7 of the Lease and (B) to the extent such incomplete
 portion of the Tenant VAC Unit Installation Work can be cured solely by the
 performance of work within the Premises which shall not affect any structural
 elements of the Building or the Building exterior, or affect the operation of
 any Building Systems (other than merely connecting to such Building Systems),
 Landlord shall, at Tenant’s request, assign to Tenant any contract entered
 into by Landlord for the performance of such unperformed portion of the
 Tenant VAC Unit Installation Work, and Tenant may perform and complete such
 unperformed portion of the Tenant VAC Unit Installation Work on condition
 that (i) Tenant shall have first notified Landlord in writing of such failure
 to substantially complete such portion of the Tenant VAC Unit Installation
 Work and Landlord shall not have cured such default within ten (10) days
 after such notice, and (ii) prior to actually curing such default, Tenant
 shall have given Landlord prior written notice of Tenant’s intention to use
 self-help under this Section (herein called the “Exhibit B – Paragraph V
 Self-Help Notice”) and Landlord shall not, within a two (2) day period
 after delivery of such notice, have indicated in writing to Tenant Landlord’s
 intention to cure such default and instituted immediate steps to remedy the
 situation and diligently prosecuted same to completion. The extent of the
 work performed by Tenant in curing any such default shall not exceed the work
 that is reasonably necessary to effectuate such remedy and the cost of curing
 such default and effecting such remedy shall, for the purpose of determining
 the amount which Landlord may be obligated to reimburse to Tenant under this
 Paragraph V, be reasonable under the circumstances. Upon completion of any
 such cure of Landlord’s default pursuant to this Paragraph V, Tenant shall
 give notice thereof (herein called the “Exhibit B – Paragraph V Completion
 Notice”) to Landlord together with a copy of invoices setting forth the
 costs and expenses incurred by Tenant to complete such cure. Landlord shall
 reimburse Tenant or dispute Tenant’s right to reimbursement therefor with a
 reasonably detailed description of the basis for Landlord’s dispute, within
 twenty (20) Business Days after receipt of Tenant’s Exhibit B – Paragraph V
 Completion Notice, for the actual out-of-pocket expenses reasonably incurred
 by Tenant in performing any such work and completing such cure. In the event
 that Landlord shall fail timely to reimburse Tenant for any such work
 performed in accordance herewith, or to dispute Tenant’s right to payment
 therefor, then Tenant shall have the right (herein called “Tenant’s
 Exhibit B – Paragraph V Offset Right”) to offset the amount of such
 reimbursement against Rent next becoming due under this Lease with interest
 thereon at the Applicable Rate from the date expended by Tenant until the
 date recovered in full by such offset. Any such dispute which is not resolved
 between the parties within twenty (20) Business Days after the timely giving
 of Landlord’s notice of dispute may be submitted by either party to
 arbitration in accordance with the provisions of Section 38.7 of this Lease.
 If Landlord continues to fail to reimburse Tenant for

 


B-3









	
  

 	
  

 
	
  

 	
 twenty (20) Business Days after Tenant has obtained a final
 determination from the arbitrators in Tenant’s favor, Tenant shall again have
 Tenant’s Exhibit B – Paragraph V Offset Right. The parties to this Lease
 acknowledge that the rights and remedies of Tenant under this Paragraph V are
 not intended to limit any other right or remedy that Tenant may have under
 any other express provision of this Lease (except to the extent such right or
 remedy may be limited under an express provision of this Lease).

 
	
  

 	
  

 
	
 VI.

 	
 Following the substantial completion of Landlord’s Pre-Commencement
 Date Work on either or both of the 17th Floor or the 18th Floor, as
 applicable, Landlord shall exert commercially reasonable efforts to cause the
 following elements of Landlord’s Work to be completed on or before the dates
 set forth under the column marked “Target Substantial Completion Date”:

 






	
  

 	
  

 	
  

 
	
 WORK ITEM

 	
  

 	
 TARGET SUBSTANTIAL COMPLETION

 DATE

 
	

 


 	
  

 	

 


 
	
 Substantially
 complete Landlord’s Pre-Commencement Date Work on either the 17th Floor or
 the 18th Floor if Landlord shall have theretofore substantially completed
 Landlord’s Pre-Commencement Date Work
 on the other floor (e.g., if Landlord
 shall have substantially completed Landlord’s Pre-Commencement date Work on
 the 18th Floor and not substantially completed Landlord’s Pre-Commencement date Work on the 17th
 floor)

 	
  

 	
 Twenty (20)
 days after the substantial completion of Landlord’s Pre-Commencement Date
 Work on the other Floor

 
	
  

 	
  

 	
  

 
	
 Structural columns and core and shell walls to be enclosed and
 firestopped

 	
  

 	
 On or before twenty (20) Business Days following the Commencement
 Date

 
	
  

 	
  

 	
  

 
	
 Deliver the
 perimeter heating system fully operational in good working order with thermostatically controlled
 Danfus valves

 	
  

 	
 On or before
 May 31, 2006

 
	
  

 	
  

 	
  

 
	
 Provide a
 sufficient number of points of
 connection is available for Tenant’s tie-in to the Building’s “Class E”
 system

 	
  

 	
 On or before
 the substantial completion of Tenant’s Initial Alterations

 
	
  

 	
  

 	
  

 
	
 Provide
 supply points for VAC in the mechanical rooms presently located in the
 Premises.

 	
  

 	
 On or before
 the substantial completion of Tenant’s Initial Alterations

 
	
  

 	
  

 	
  

 
	
 Repair
 existing convector covers so they are free of dents and rust

 	
  

 	
 On or before
 the substantial completion of Tenant’s Initial Alterations

 


B-4









	
  

 	
  

 
	
  

 	
 If the portions of Landlord’s Work set forth in the table above are
 not substantially completed by the dates set forth above, subject to delays
 caused by Unavoidable Delays and/or Tenant Delay, and if such failure to
 substantially complete such portion of Landlord’s Work by the dates set forth
 above shall adversely affect or delay Tenant’s ability to perform Tenant’s
 Initial Alterations after Tenant shall have taken reasonable steps in
 accordance with generally accepted construction practices to reschedule work
 so as to eliminate the impact of such incomplete portions of Landlord’s Work
 then, to the extent such incomplete portion of Landlord’s Work can be cured
 solely by the performance of work within the Premises (except for the work
 referred to in Paragraph 3 of Paragraph I of this Exhibit B, which may
 be performed outside of the Premises) which shall not affect any structural
 elements of the Building or the Building exterior, or affect the operation of
 any Building Systems (other than merely connecting to such Building Systems),
 Landlord shall, at Tenant’s request, assign to Tenant any contract entered
 into by Landlord for the performance of such unperformed portion of
 Landlord’s Work (but Tenant shall not be obligated to accept an assignment of
 such contract in order to effect a cure), and Tenant may perform and complete
 such unperformed portion of Landlord’s Work on condition that Tenant shall
 have first notified Landlord in writing of such failure to substantially
 complete such portion of Landlord’s Work and Tenant’s intention to cure the
 same (herein called the “Exhibit B – Paragraph VI Self-Help Notice”)
 and Landlord shall not, within seven (7) days after such notice, have cured
 such default. The extent of the work performed by Tenant in curing any such
 default shall not exceed the work that is reasonably necessary to effectuate
 such remedy and the cost of curing such default and effecting such remedy
 shall, for the purpose of determining the amount which Landlord may be
 obligated to reimburse to Tenant under this Paragraph VI, be reasonable under
 the circumstances. Upon completion of any such cure of Landlord’s default
 pursuant to this Paragraph VI, Tenant shall give notice thereof (herein
 called the “Exhibit B –Paragraph VI Completion Notice”) to Landlord
 together with a copy of invoices setting forth the costs and expenses
 incurred by Tenant to complete such cure. Landlord shall reimburse Tenant or
 dispute Tenant’s right to reimbursement therefor with a reasonably detailed
 description of the basis for Landlord’s dispute, within twenty (20) Business
 Days after receipt of Tenant’s Exhibit B – Paragraph VI Completion Notice,
 for the actual out-of-pocket expenses reasonably incurred by Tenant in
 performing any such work and completing such cure. In the event that Landlord
 shall fail timely to reimburse Tenant for any such work performed in
 accordance herewith, or to dispute Tenant’s right to payment therefor, then
 Tenant shall have the right (herein called “Tenant’s Exhibit B – Paragraph
 VI Offset Right”) to offset the amount of such reimbursement against Rent
 next becoming due under this Lease with interest thereon at the Applicable
 Rate from the date expended by Tenant until the date recovered in full by
 such offset. Any such dispute which is not resolved between the parties
 within twenty (20) Business Days after the timely giving of Landlord’s notice
 of dispute may be submitted by either party to arbitration in accordance with
 the provisions of Section 38.7 of this Lease. If Landlord continues to fail
 to reimburse Tenant for twenty (20) Business Days after Tenant has 

 


B-5









	
  

 	
  

 
	
  

 	
 obtained a final determination from the arbitrators in Tenant’s
 favor, Tenant shall again have Tenant’s Exhibit B – Paragraph VI Offset
 Right. The parties to this Lease acknowledge that the rights and remedies of
 Tenant under this Paragraph VI are not intended to limit any other right or
 remedy that Tenant may have under any other express provision of this Lease
 (except to the extent such right or remedy may be limited under an express
 provision of this Lease). Additionally, if Tenant shall have actually been
 delayed in the substantial completion of Tenant’s Initial Alterations as a
 result of Landlord’s failure to complete all or any portion of Landlord’s
 Post-Commencement Date Work to the extent and by the dates specified under
 this Section, then Tenant shall be entitled to an equitable abatement in Rent
 for the period Tenant was so delayed (whether or not rent was actually
 accruing during such period), such abatement to be determined by the mutual
 agreement of Landlord and Tenant or by the arbitrator in accordance with an
 arbitration conducted under Section 38.7 of this Lease.

 
	
  

 	
  

 
	
 VII.

 	
 In addition to Landlord’s Work, Landlord agrees to perform the
 following work (“Landlord’s Common Area Work”) in respect of the
 common areas of the 18th floor of the Building: (i) the installation of new
 building standard carpeting in the common corridor; (ii) the re-painting
 those areas of the common corridor which are painted as of the date of this
 Lease with building-standard paint; (iii) the installation of new
 building-standard wall coverings in those portions of the common corridor
 which are covered with wall coverings as of the date of this Lease; (iv) the
 installation of new building-standard ceiling tiles (as reasonably determined
 by Landlord) in the ceiling of the common corridor, (vi) the replacement of
 all common corridor lighting fixtures with new lighting fixtures; and (vii)
 the refurbishment of the 18th floor core lavatories (“18th Floor Core
 Lavatories”) which shall consist of re-painting, replacing all ceiling
 tiles and the bleaching (Saniglazing) of the lavatory floor in a manner
 consistent with the refurbishment of the lavatories on the third (3rd) floor
 of the Building. Any reference in this paragraph to “building-standard”
 materials, finishes, quantities, designs, qualities and colors shall refer to
 the standard of materials, finishes, quantities, designs, qualities and
 colors adopted by Landlord as a standard for the common areas of the third
 (3rd) floor of the Building as of the date of this Lease. Landlord’s Common
 Area Work shall be performed and substantially completed as follows: (i) the
 refurbishment of the 18th Floor Core Lavatories shall be completed on or
 before the date that Tenant’s Initial Alterations shall have been
 substantially completed and (ii) all other Landlord’s Common Area Work shall
 be substantially completed on or before the forty-fifth (45th) day next
 following the later to occur of (x) the date upon which Tenant shall commence
 occupancy of the Premises for the regular conduct of its business and (y) the
 date of substantial completion of Tenant’s Initial Alterations.

 
	
  

 	
  

 
	
 VIII.

 	
 Tenant may elect, by a written notice (the “18th Floor Core
 Lavatories Upgrade Notice”)delivered to Landlord on or before
 January 31, 2006 to require that Landlord upgrade the core lavatories on the
 18th floor in accordance with plans and specifications prepared by Landlord
 in consultation with Tenant and approved by Tenant, approval of which shall
 not be unreasonably withheld or delayed, provided such plans and
 specifications are consistent with the design guidelines adopted by Landlord
 for the upgrade of core

 


B-6









	
  

 	
  

 
	
  

 	
 lavatories in the Building and meet or exceed the standard of quality
 adopted by Landlord as a “building standard” with respect to the upgrade of
 core lavatories in the Building. If Tenant delivers the 18th Floor Core
 Lavatories Upgrade Notice, as foresaid, then (i) Landlord shall expend up to
 $20,000.00 in connection with the upgrade of the 18th Floor Core Lavatories,
 (ii) Tenant shall be responsible for all costs and expenses incurred by
 Landlord in connection with the upgrade of the 18th Floor Core Lavatories in
 excess of $20,000.00, which excess costs and expenses shall be paid by
 Tenant, as additional rent under this Lease, within twenty (20) days of
 Landlord’s demand therefor accompanied by all invoices for the work performed
 on the 18th Floor Core Lavatories, and (iii) Landlord shall be relieved,
 notwithstanding any condition or requirement in this Exhibit B, from
 any obligation to refurbish the 18th Floor Core Lavatories on or before the
 dates specified in Paragraph VII of this Exhibit B; provided, however,
 that Landlord shall substantially complete the upgrade of the 18th Floor Core
 Lavatories within a reasonable time, given the extent of the work involved,
 following Tenant’s approval of the plans and specifications prepared by
 Landlord for the upgrade of the 18th Floor Core Lavatories. In order to avoid
 any misunderstanding, the parties hereby agree that Landlord shall not be
 required to provide for ADA compliance work (or NYC Local Law 58 compliance
 work, or similar work) in the revised plans and specifications for the 18th
 Floor Core Lavatories; and, if the upgrade work performed in respect of the
 18th Floor Core Lavatories shall require additional work to be performed in
 order to cause the 18th Floor Core Lavatories to comply with the ADA or NYC
 Local Law 58 or similar Requirements, the cost of all such additional work
 shall be borne solely by Tenant.

 


B-7





APPENDIX 1 TO SCHEDULE B





B-8









B-9








B-10









B-11









B-12









B-13








B-14





EXHIBIT C


LIST OF CONTRACTORS APPROVED BY LANDLORD





C-1








C-2








C-3







The following general contractors and trade
contractors are hereby approved by Landlord with respect to the performance of
Tenant’s Initial Alterations:


	
  

 	
  

 
	
 General
 Contractors:

 
	
  

 	
  

 
	
 StructureTone,
 Inc.

 
	
 Turner
 Construction

 






	
  

 	
  

 
	
 Flooring

 
	
  

 	
 Consolidated

 
	
  

 	
 Soundtone

 
	
  

 	
 Sherland
 & Farrington 

 
	
  

 	
 Architectural
 Flooring

 
	
  

 	
  

 
	
 Painting
 & Wallcovering

 
	
  

 	
 Antovel

 
	
  

 	
 Caruso

 
	
  

 	
 Newport

 
	
  

 	
 Encore

 
	
  

 	
  

 
	
 Window
 Treatment

 
	
  

 	
 DFB

 
	
  

 	
 LVC

 
	
  

 	
 City View

 
	
  

 	
  

 
	
 Woodwork

 
	
  

 	
 Rimi

 
	
  

 	
 I.G. Gillander

 
	
  

 	
 S & G

 
	
  

 	
 Gale

 
	
  

 	
 Island Arch
 Woodwork

 


C-4





EXHIBIT D


FORM OF SNDA


SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
AGREEMENT


          THIS
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this “Agreement”),
dated as of December __, 2005, among LANDESBANK HESSEN-THÜRINGEN GIROZENTRALE,
having an address at 420 Fifth Avenue, New York, NY 10018, in its capacity as
administrative agent for the financial institutions (collectively, the
“Lenders”) parties to the Loan Agreement referred to below (in such capacity,
“Mortgagee”), COTY INC., a Delaware corporation having an office at 1325 Avenue
of the Americas, New York, New York 10019 (“Tenant”), and, SEB
IMMOBILIEN-INVESTMENT GMBH, a limited liability capital investment company
(Kapitalanagegesellschaft) organized and existing under the laws of Germany
having an office at Stüzeläckerweg 12-14, D-60489 Frankfurt am Main, Germany,
Attn: Ms. Barbara Knoflach and Mr. Choy-Soon Chua (together with its successors
and assigns, collectively, “Mortgagor”).


W I T N E S S E T H:


          WHEREAS,
pursuant to a certain Loan Agreement, dated as of ___________ , 200_, among
Mortgagor, Mortgagee and the Lenders (the “Loan Agreement”), the Lenders have
agreed to make a mortgage loan to the Borrower in the principal amount of
$__________ (the “Loan”), upon the
terms and subject to the conditions set forth in the Loan Agreement;


          WHEREAS,
the Loan will be secured by, among other things, a Mortgage, Assignment of
Leases and Security Agreement and Fixture Filing by the Mortgagor for the
benefit of the Mortgagee (the “Mortgage”) intended to be recorded in Office of
the Register of New York County, New York, which Mortgage covers Mortgagor’s
interest in certain premises more particularly described on Exhibit A attached
hereto (the “Property”);


          WHEREAS,
Tenant has leased certain space (the “Demised Premises”) in the building
located at the Property from Mortgagor pursuant to a certain Agreement of
Lease, dated as of December 30, 2005 (the “Lease”);


          WHEREAS, as
a condition to the disbursement of the Loan, Mortgagee has required that the
Lease and all rights of Tenant thereunder be subordinated to the Mortgage and
all of the rights of Mortgagee thereunder as provided herein; and


          WHEREAS,
Tenant wishes to obtain a non-disturbance agreement from Mortgagee so as to be
assured of continued possession of the Demised Premises if the Mortgage is
foreclosed.


          NOW,
THEREFORE, for valuable consideration, Mortgagee, Mortgagor and Tenant agree as
follows:


D-1





          1. Subject
to the terms hereof, the Lease is and shall continue to be subject and
subordinate in all respects to the lien of the Mortgage, to all of the terms
thereof, to all advances made or to be made thereunder and any renewals,
modifications, increases, consolidations, replacements and extensions thereof
and/or thereto.


          2. If
foreclosure proceedings are instituted under the Mortgage and Tenant shall not
be in default under the Lease beyond all applicable notice and cure periods (if
any) specified in the Lease, then: (a) Tenant shall not be made a party
defendant in such proceedings; (b) the Lease shall not be terminated; and (c)
Tenant’s possession of the Demised Premises shall not be disturbed by such
proceedings.


          3. Upon the
completion of foreclosure proceedings and the sale of the Property, or if
Mortgagee should otherwise acquire possession of the Property (any such event,
a “Succession”), Tenant shall attorn to the purchaser at foreclosure or to
Mortgagee, as the case may be, and shall recognize such purchaser or Mortgagee
as Tenant’s landlord under the Lease and Mortgagee shall recognize Tenant as
Mortgagee’s tenant under the Lease. The foregoing provisions shall be
self-operative and effective without the execution of any further instruments
on the part of any party hereto. Tenant agrees, however, that from time to time
upon the request of the purchaser at foreclosure or Mortgagee, as the case may
be, and provided that Mortgagee shall be in compliance with its obligations
under this Agreement, Tenant shall execute and deliver any instrument
reasonably requested by Mortgagee to confirm such attornment.


          4. Tenant
waives the provisions of any statute or rule of law now or hereafter in effect
which accords Tenant any right of election to terminate the Lease or to
surrender possession of the Demised Premises if foreclosure proceedings are
instituted. Tenant shall, upon demand of any receiver in foreclosure, pay such
receiver all base rent, additional rent and all other charges becoming due
under the Lease after such demand.


          5. Upon any
Succession, the Lease shall continue in full force and effect as a direct lease
between the purchaser at foreclosure or Mortgagee, as the case may be, and Tenant,
upon all of the terms of the Lease, except that: (a) notwithstanding anything
to the contrary contained herein or in the Lease, in the event of foreclosure
of the Mortgage or if Mortgagee should otherwise acquire possession of the
Property, the liability of Mortgagee, its successors and assigns, or the
purchaser at foreclosure, as the case may be, shall be limited to its or their
interest in the Property; and (b) such purchaser or Mortgagee, as the case may
be, shall not:


          (i) be
liable for any previous act, omission or default of the landlord under the
Lease, provided that Mortgagee shall not be relieved of any liability arising
by reason of Mortgagee’s act or omission from and after the date of Succession,
including, but not limited to, a continuance of the failure by Mortgagor to
perform its obligations under the Lease; or


          (ii) be
subject to any offset which shall have theretofore accrued to Tenant against
the landlord under the Lease except (i) as expressly set forth in the Lease, (ii)
if Mortgagee was furnished with notice and opportunity to cure the same in
accordance with the provisions of this Agreement prior to the Succession or
(iii) Mortgagee continues to fail to perform the obligations of Mortgagor under
the Lease, which gave rise to the offset or defense and does not remedy the


D-2





same within a reasonable period of time after receipt of notice of such
continuation from Tenant; or


          (iii) be
bound by any payment of base rent, additional rent or other charges due under
the Lease paid more than thirty (30) days in advance of its due date unless
such prepayment shall have been approved, in writing, by Mortgagee; or


          (iv) be
bound by any modification or amendment of the Lease or by any cancellation or
surrender of the Lease, unless the same shall have been approved, in writing,
by Mortgagee, other than those modifications or amendments entered into or any
cancellation or surrender of the Lease as a result of Tenant’s exercise of any
renewal, expansion, first refusal, cancellation or other options contained in
the Lease, provided such modifications or amendments contain no changes to the
Lease other than those expressly relating to such options as set forth in the
Lease; or


          (v) be
liable to Tenant for any deposit, rental security or any other sums deposited
with the landlord under the Lease and not delivered to Mortgagee or the
purchaser at foreclosure, as the case may be; or


          (vi) be
liable to Tenant for any work required to be performed prior to the Succession
to prepare the Demised Premises for Tenant’s occupancy or for payment of any
allowances or contributions to the cost of any such work if such payment was
due prior to the Succession; provided, however, that Mortgagee shall be liable
for (a) all work required to be performed by the landlord under the Lease after
the Succession and all work required to be performed by the landlord under the
Lease prior to Mortgagee’s Succession which the landlord under the Lease has a
continuing obligation under the Lease to perform after the Succession, and (ii)
any amount of the Tenant Fund (as defined in the Lease) outstanding as of the
Succession; or


          (vii) be
liable to Tenant for construction or restoration, or delays in construction or
restoration, of the Property, or any part thereof resulting from a fire or
other casualty occurring prior to a Succession, except for any such obligations
and delays which arise prior to such Succession but are continuing after the
date of such Succession; or


          (viii) be
liable to Tenant for any Lease buy-out agreements or obligations, except as
expressly set forth in the Lease.


          6. Tenant
acknowledges that pursuant to the Mortgage, Mortgagor has granted to Mortgagee,
as Mortgagor’s assignee, the right to direct Tenant to pay to Mortgagee (or
Mortgagee’s designee) the rents due under the Lease. Tenant shall, after
receipt of a notice from Mortgagee directing Tenant to pay such rentals to
Mortgagee (or Mortgagee’s designee), pay all base rent, additional rent or
other charges payable under the Lease to Mortgagee (or Mortgagee’s designee)
until Mortgagee notifies Tenant to resume payment to Mortgagor. Mortgagor joins
in the execution of this Agreement for the purpose of irrevocably directing
Tenant to make such rental payments in accordance with Mortgagee’s
instructions. In complying with the provisions of this paragraph 6, Tenant
shall be entitled to rely solely upon the notices given by Mortgagee which are
referred to in this paragraph 6. Tenant shall be entitled to full credit under
the Lease 


D-3





for any rents paid to Mortgagee (or its designee) in accordance with
the provisions of this paragraph 6 to the same extent as if such rents were
paid directly to Mortgagor.


          7.
Mortgagor and Tenant each agree not to amend, modify, surrender or cancel the
Lease without the prior written consent of Mortgagee, except for those
amendments or modifications or any surrender or cancellation of the Lease as a
result of Tenant’s exercise of any renewal, expansion, first refusal,
cancellation or other options contained in the Lease, provided such
modifications or amendments contain no changes to the Lease other than those
expressly relating to such options as set forth in the Lease, and any such
purported amendment, modification, surrender and/or cancellation taken without
Mortgagee’s written approval shall not be effective against Mortgagee.


          8. Tenant
agrees that if there occurs a default by the landlord under the Lease of which
Tenant has notice, a copy of each notice given to the landlord pursuant to the
Lease shall also be given to Mortgagee. Mortgagee shall have the right to cure
any such default by the landlord under the Lease within the time periods
provided to the landlord under the Lease.


          9. This
Agreement may not be modified orally or in a manner other than by an agreement
in writing signed by the parties hereto or their respective successors in
interest.


          10. This
Agreement contains the entire understanding between Mortgagor, Mortgagee and
Tenant, and may not be changed except by an instrument signed by the party.to
be charged.


          11. All
notices, approvals, consents and other communications referred to herein
(collectively, “Notices”) shall be in writing and sent by hand (against a
signed receipt), by nationally recognized overnight courier service (such as
Federal Express) with receipt requested or by certified mail, return receipt
requested, to the other parties at the address of each such other parties set
forth hereinbelow or at such other address within the continental United States
as such other parties may designate by notice specifically designated as a
notice of change of address and given in accordance herewith:


          (i) If to
Mortgagee, at Mortgagee’s address above set forth;


          (ii) If to
Tenant, prior to the date that Tenant first occupies the Premises for the
conduct of its business:


	
  

 	
  

 
	
  

 	
 Coty Inc.

 
	
  

 	
  

 
	
  

 	
 1325 Avenue
 of the Americas

 
	
  

 	
  

 
	
  

 	
 New York,
 New York 10019

 
	
  

 	
  

 
	
  

 	
 Attention:
 General Counsel

 


D-4





          If
to Tenant after the date that Tenant first occupies the Premises for the
conduct of its business:


	
  

 	
  

 
	
  

 	
 Coty Inc.

 
	
  

 	
  

 
	
  

 	
 2 Park
 Avenue

 
	
  

 	
  

 
	
  

 	
 New York,
 New York 10016 

 
	
  

 	
  

 
	
  

 	
 Attention:
 General Counsel

 
	
  

 	
  

 
	
  

 	
 With a copy
 to:

 
	
  

 	
  

 
	
  

 	
 Coty Inc.

 
	
  

 	
  

 
	
  

 	
 2 Park
 Avenue

 
	
  

 	
  

 
	
  

 	
 New York,
 New York 10016

 
	
  

 	
  

 
	
  

 	
 Attention:
 General Counsel

 
	
  

 	
  

 
	
  

 	
 and a copy
 to:

 
	
  

 	
  

 
	
  

 	
 Brown
 Raysman Millstein Felder & Steiner LLP

 
	
  

 	
  

 
	
  

 	
 900 Third
 Avenue

 
	
  

 	
  

 
	
  

 	
 New York,
 New York 10022

 
	
  

 	
  

 
	
  

 	
 Attention:
 Raymond A. Sanseverino, Esq.

 
	
  

 	
  

 
	
  

 	
 (iii) If to
 Mortgagor:

 
	
  

 	
  

 
	
  

 	
 SEB
 Immobilien-Investment GmbH

 
	
  

 	
  

 
	
  

 	
 c/o LaSalle
 Investment Management

 
	
  

 	
  

 
	
  

 	
 153 East
 53rd Street

 
	
  

 	
  

 
	
  

 	
 New York, NY
 10022

 
	
  

 	
  

 
	
  

 	
 Attention:
 Mr. Brian Tague

 


D-5









	
  

 	
  

 
	
  

 	
 With a copy
 to:

 
	
  

 	
  

 
	
  

 	
 Jones Lang
 LaSalle Americas, Inc.

 
	
  

 	
  

 
	
  

 	
 Two Park
 Avenue

 
	
  

 	
  

 
	
  

 	
 15th Floor

 
	
  

 	
  

 
	
  

 	
 New York, NY
 10016

 
	
  

 	
  

 
	
  

 	
 Attention:
 Building Manager

 
	
  

 	
  

 
	
  

 	
 and a copy
 to:

 
	
  

 	
  

 
	
  

 	
 Mario J.
 Suarez, Esq.

 
	
  

 	
  

 
	
  

 	
 Thompson
 Hine LLP

 
	
  

 	
  

 
	
  

 	
 One Chase
 Manhattan Plaza

 
	
  

 	
  

 
	
  

 	
 58th Floor

 
	
  

 	
  

 
	
  

 	
 New York,
 New York 10005-1401

 


Any such Notices shall be deemed to have been rendered or given (a) on
the date when it shall have been hand delivered (b) on the next business day if
delivered via nationally recognized overnight courier service (such as Federal
Express) with receipt requested, or (c) three (3) Business Days from when it
shall have been mailed via certified mail, return receipt requested. Each
party’s attorney is authorized to give any Notice pursuant to this Agreement on
behalf of such attorney’s client.


          12.
Notwithstanding anything to the contrary contained herein, in the event fire or
other casualty destroys all or any portion of the Property or the Demised
Premises, all insurance proceeds associated with such casualty shall be used in
accordance with the terms of the Lease. If all or any portion of the Property
or the Demised Premises is taken under power of eminent domain, all
condemnation awards associated with such taking shall be used in accordance
with the provisions of the Lease.


          13. Neither
the Mortgage nor any other security instrument executed in connection therewith
shall cover, or be construed as subjecting in any manner to the liens thereof,
any of the improvements, personal property, trade fixtures or equipment owned
by Tenant.


          14.
Mortgagee acknowledges receipt of a copy of the Lease, approves the Lease, and
agrees that this Agreement satisfies any condition or requirement in the
Mortgage relating to approval by Mortgagee of the Lease. It is agreed that this
Agreement shall supersede, to the extent inconsistent therewith, the provisions
of the Lease relating to subordination of the Lease.


D-6





          15. Tenant,
Mortgagor and Mortgagee represent and warrant to each other that they and the
individuals signing below have the right, power and authority to execute this
Agreement.


          16. This
Agreement may be executed in several counterparts each of which when executed
is an original, but all of which together shall constitute one instrument.


          17. Tenant
shall record this Agreement in the local registry in which the Demised Premises
is located.


          18. This
Agreement shall be binding upon and inure to the benefit of Mortgagor,
Mortgagee and Tenant and their respective successors and assigns.


[signature page follows]


D-7





          IN
WITNESS WHEREOF, Mortgagee, Mortgagor and Tenant have executed this Agreement
as of the day and year first above written.


	
  

 	
  

 	
  

 
	
  

 	
 MORTGAGEE:

 
	
  

 	
  

 
	
  

 	
 LANDESBANK
 HESSEN-THÜRINGEN

 GIROZENTRALE,

 
	
  

 	
  

 
	
  

 	
 in its
 capacity as administrative agent for the Lenders,

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Name: 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Title:

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Name: 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Title:

 
	
  

 	
  

 	
  

 
	
  

 	
 TENANT: COTY
 INC.

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Name: 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Title:

 


D-8









	
  

 	
  

 	
  

 
	
  

 	
 MORTGAGOR:

 
	
  

 	
  

 
	
  

 	
 SEB
 IMMOBILIEN-INVESTMENT GMBH,

 
	
  

 	
  

 
	
  

 	
 a limited
 liability capital investment company

 (Kapitalanagegesellschaft) organized and existing

 under the laws of Germany

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Name: 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Title:

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Name: 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Title:

 


D-9





NOTARY ACKNOWLEDGMENT


(Within New York State)


	
  

 	
  

 
	
 STATE OF NEW
 YORK

 	
 )

 
	
  

 	
  

 
	
  

 	
 )ss.

 
	
  

 	
  

 
	
 COUNTY OF
 NEW YORK

 	
 )

 


On the ___________day of ____________ in the year 2006 before me, the
undersigned, personally appeared ___________________________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he / she / they executed the same in his / her
/their capacity(ies), and that by his / her / their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.


(Signature and
office of individual taking acknowledgment)


D-10









	
  

 	
  

 
	
 STATE OF NEW
 YORK

 	
 )

 
	
  

 	
  

 
	
  

 	
 )ss.

 
	
  

 	
  

 
	
 COUNTY OF
 NEW YORK

 	
 )

 


On the ___________day of ____________ in the year 2006 before me, the
undersigned, personally appeared ___________________________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he / she / they executed the same in his / her
/their capacity(ies), and that by his / her / their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.


(Signature and
office of individual taking acknowledgment)


	
  

 	
  

 
	
 STATE OF NEW
 YORK

 	
 )

 
	
  

 	
  

 
	
  

 	
 )ss.

 
	
  

 	
  

 
	
 COUNTY OF
 NEW YORK

 	
 )

 


On the ___________day of ____________ in the year 2006 before me, the
undersigned, personally appeared ___________________________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he / she / they executed the same in his / her
/their capacity(ies), and that by his / her / their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.


(Signature and
office of individual taking acknowledgment)


D-11









	
  

 	
  

 
	
 STATE OF NEW
 YORK

 	
 )

 
	
  

 	
  

 
	
  

 	
 )ss.

 
	
  

 	
  

 
	
 COUNTY OF
 NEW YORK

 	
 )

 


On the ___________day of ____________ in the year 2006 before me, the
undersigned, personally appeared ___________________________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he / she / they executed the same in his / her
/their capacity(ies), and that by his / her / their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.


(Signature and
office of individual taking acknowledgment)


	
  

 	
  

 
	
 STATE OF NEW
 YORK

 	
 )

 
	
  

 	
  

 
	
  

 	
 )ss.

 
	
  

 	
  

 
	
 COUNTY OF
 NEW YORK

 	
 )

 


On the ___________day of ____________ in the year 2006 before me, the
undersigned, personally appeared ___________________________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he / she / they executed the same in his / her
/their capacity(ies), and that by his / her / their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.


(Signature and
office of individual taking acknowledgment)


D-12





EXHIBIT A


(Exhibit A to Subordination, Non-Disturbance
and Attornment Agreement)


D-13





EXHIBIT E


CERTIFICATE OF OCCUPANCY





E-1








E-2





EXHIBIT F


INTENTIONALLY OMITTED


F-1





EXHIBIT G


VAC UNIT PERFORMANCE SPECIFICATIONS


The Tenant VAC Units shall be capable of maintaining an interior
temperature of 74 degrees Fahrenheit when the summer outdoor conditions are 92
degrees Fahrenheit dry bulb and 73 degrees Fahrenheit wet bulb. The
aforementioned conditions shall be capable of being maintained while offsetting
a lighting and equipment load of four (4) watts per usable square foot, and an
occupancy rate of one person per 150 usable square feet. The Tenant VAC Units
shall be capable of providing outdoor air for ventilation at a rate of
approximately 15CFM per person or .133 cfm per usable square foot.


The VAC system shall utilize either mechanical refrigeration or the A/C
units waterside economizer operation or a combination of both as required to
maintain interior space temperatures as aforementioned.


G-1





EXHIBIT H


FORM OF LETTER OF CREDIT


	
  

 	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	

 


 	
  

 
	
  

 	

 


 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Contact
 Phones:

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 


IRREVOCABLE LETTER OF CREDIT


	
  

 	
  

 	
  

 	
  

 
	
 _________________,
 2005

 	
  

 	
 Our
 irrevocable standby Letter of Credit:

 
	
  

 	
  

 	
 No.

 	
  

 
	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 
	
 Beneficiary:

 	
  

 	
 Applicant:

 
	
  

 	
  

 	
  

 	
  

 
	

 


 	
  

 	

 


 
	

 


 	
  

 	

 


 
	

 


 	
  

 	

 


 






	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Attention:

 	
  

 	
  

 	
 Attention:

 	
  

 
	
  

 	

 


 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 Amount:
 Exactly USD $______________

 (_________________________ Dollars)

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 Final Date
 of Expiration:

 ___________ [INSERT DATE WHICH IS SIXTY (60) DAYS AFTER LEASE EXPIRATION
 DATE]

 


          We (the
“Bank”) hereby issue our irrevocable standby Letter of Credit No. _________ in Beneficiary’s favor for the
account of the above-referenced Applicant, in the aggregate amount of exactly
USD $______________.


          This Letter
of Credit is available with us at our above office by presentation of your
draft drawn on us at sight bearing the clause: “Drawn under ________________
[INSERT NAME OF BANK] Letter of Credit No. _________” and accompanied by the
original of this Letter of Credit. Such sight draft may be signed by
Beneficiary or Beneficiary’s managing agent.


          Special
conditions:


          Partial
draws, as well as multiple presentations and drawings, under this Letter of
Credit are permitted. Notwithstanding anything to the contrary contained
herein, this Letter of Credit 


H-1





shall expire permanently without renewal on _______________[INSERT DATE
WHICH IS SIXTY (60) DAYS AFTER LEASE EXPIRATION DATE].


          This Letter
of Credit shall be automatically extended for an additional period of one (1)
year, without amendment, from the present or each future expiration date but in
any event not beyond _______________[INSERT DATE WHICH IS SIXTY (60) DAYS AFTER
LEASE EXPIRATION DATE] which shall be the final expiration date of this Letter
of Credit, unless, at least sixty (60) days prior to the then current
expiration date, we notify you by registered mail/overnight courier service at
the above address that this Letter of Credit will not be extended beyond the
current expiration date.


          We hereby
agree with you that all drafts drawn under and in compliance with the terms of
this Letter of Credit will be duly honored upon presentation to us on or before
the expiration date of this Letter of Credit, regardless of whether Applicant
disputes such presentation.


          This Letter
of Credit is transferable one or more times and any such transfer shall be
effected by us, provided that you deliver to us your written request for
transfer in form and substance reasonably satisfactory to us. Beneficiary may,
at any time and without notice to Applicant and without first obtaining
Applicant’s consent thereto, transfer all or any portion of Beneficiary’s
interest in and to the Letter of Credit to another party, person or entity,
regardless of whether or not such transfer is separate from or as a part of the
assignment by Beneficiary of Beneficiary’s rights and interests in and to the
Lease between Beneficiary and Subtenant. The original of this Letter of Credit
together with any amendments thereto must accompany any such transfer request.


          Except so
far as otherwise expressly stated, this documentary credit is subject to the
Uniform Customs and Practice for Documentary Credits, 1993 Revision, International
Chamber Of Commerce Publication No. 500. 


	
  

 	
  

 	
  

 
	

 


 	
  

 
	
  

 	
  

 	
  

 
	
 By:

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Authorized
 signature

 	
  

 


Please direct any correspondence including drawing or inquiry quoting
our reference number to the above referenced address.


H-2





EXHIBIT I


CONFIRMATION OF THE EXISTENCE OF A REGISTERED
OFFICE IN THE FEDERAL

REPUBLIC OF GERMANY


          Please note
below whether, for the purpose of the balance-of-payments statistics, COTY,
INC., a corporation organized under the laws of Delaware.


	
  

 	
  

 
	
  

 	
           ____ For
 the purpose of the German balance-of-payments statistics, we are considered
 to be a company that has its registered office in Germany.

 
	
  

 	
  

 
	
  

 	
           ____ For
 the purpose of the German balance-of-payments statistics, we are considered
 to be a company that does not have its registered office in Germany.

 



          In
addition, please confirm this status with either (a) your firm’s stamp and the
signature of an employee authorized to represent your firm or (b) the notarized
signature of an authorized employee.


	
  

 	
  

 	
  

 	
  

 
	
 TENANT:

 
	
  

 	
  

 	
  

 	
  

 
	
 COTY, INC.

 	
  

 	
 [FIRM SEAL]

 
	
  

 	
  

 	
  

 	
  

 
	
 By:

 	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 	
  

 






	
  

 	
  

 	
  

 	
  

 
	
 Name:

 	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 	
  

 






	
  

 	
  

 	
  

 	
  

 
	
 Its:

 	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 	
  

 






	
  

 	
  

 	
  

 	
  

 
	
 Date:

 	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 	
  

 


I-1





EXHIBIT J


[Floor Plan]


J-1






[Floor Plan]


J-2





[Floor Plan]


J-3





A schedule of the expiration dates of certain leases covering portions
of the First Offer Space is set forth below:





J-4





EXHIBIT K


FIRST OFFER SPACE SUPERIOR RIGHTS


          Herrick
Feinstein LLP has superior rights of first offer with respect to space that
becomes available on the 18th Floor and the 19th Floor of the Building; and
Tenant’s rights of first offer under the Lease to which this Exhibit is
attached are subject and subordinate to Herrick Feinstein LLP’s rights, as
aforesaid.


K-1





EXHIBIT L


FIRST OFFER STORAGE SPACE


L-1





EXHIBIT M


FORM OF COMMENCEMENT DATE AGREEMENT


          COMMENCEMENT
DATE AGREEMENT made as of ____________ 2006 by and between SEB
IMMOBILIEN-INVESTMENT, GmbH, a limited liability capital investment company
organized and existing under the laws of Germany, having an office c/o Jones
Lang LaSalle Americas, Inc., Two Park Avenue, New York, NY 10016 (“Landlord”)
and COTY INC., a Delaware corporation, having an office at 1325 Avenue of the
Americas, New York, New York 10019 (“Tenant”).


W I T N E S E T H:


          WHEREAS,
Landlord and Tenant have entered into a Lease, dated as of December 30, 2005
(the “Lease”), pursuant to which Landlord leased to Tenant certain space in the
Building known as 2 Park Avenue, New York, NY (the “Building”) as more fully
described in the Lease; and


          WHEREAS,
pursuant to the provisions of the Lease, the parties agreed to execute a
written agreement confirming the Commencement Date and the Expiration Date of
the Lease.


          NOW, THEREFORE,
Landlord and Tenant confirm that the “Term” of the Lease has commenced on
_______________, 2006, and that such date shall constitute the “Commencement
Date” of the Lease; and that the Term of the Lease will expire on
_____________, ______, and that such date shall constitute the “Expiration
Date” under the Lease, as such terms are defined in the Lease.


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


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 COTY, INC.,

 	
  

 	
 SEB
 IMMOBILIEN-INVESTMENT GMBH, 

 Landlord

 	
  

 
	
 Tenant

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 By:

 	
  

 	
  

 	
 By:

 	
  

 	
  

 
	
  

 	

 


 	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name:

 	
  

 	
  

 	
 Name:

 	
  

 
	
  

 	
 Title:

 	
  

 	
  

 	
 Title:

 	
  

 


M-1





EXHIBIT N


[Floor Plan]


N-1





TABLE OF CONTENTS


	
  

 	
  

 
	
 ARTICLE 1
 DEMISE, PREMISES, TERM, RENT

 	
 5

 
	
 ARTICLE 2
 USE AND OCCUPANCY

 	
 9

 
	
 ARTICLE 3
 ALTERATIONS

 	
 10

 
	
 ARTICLE 4
 REPAIRS-FLOOR LOAD

 	
 20

 
	
 ARTICLE 5
 WINDOW CLEANING

 	
 23

 
	
 ARTICLE 6
 REQUIREMENTS OF LAW

 	
 23

 
	
 ARTICLE 7
 SUBORDINATION

 	
 25

 
	
 ARTICLE 8
 RULES AND REGULATIONS

 	
 29

 
	
 ARTICLE 9
 INSURANCE, PROPERTY LOSS OR DAMAGE; REIMBURSEMENT

 	
 29

 
	
 ARTICLE 10
 DESTRUCTION-FIRE OR OTHER CAUSE

 	
 32

 
	
 ARTICLE 11
 EMINENT DOMAIN

 	
 36

 
	
 ARTICLE 12
 ASSIGNMENT, SUBLETTING, MORTGAGE, ETC.

 	
 37

 
	
 ARTICLE 13
 ELECTRICITY

 	
 45

 
	
 ARTICLE 14
 ACCESS TO PREMISES

 	
 50

 
	
 ARTICLE 15
 CERTIFICATE OF OCCUPANCY

 	
 52

 
	
 ARTICLE 16
 DEFAULT

 	
 53

 
	
 ARTICLE 17
 REMEDIES AND DAMAGES

 	
 55

 
	
 ARTICLE 18
 LANDLORD FEES AND EXPENSES

 	
 57

 
	
 ARTICLE 19
 NO REPRESENTATIONS BY LANDLORD; LANDLORD’S WORK

 	
 58

 
	
 ARTICLE 20
 END OF TERM

 	
 59

 
	
 ARTICLE 21
 QUIET ENJOYMENT

 	
 60

 
	
 ARTICLE 22
 FAILURE TO GIVE POSSESSION

 	
 60

 
	
 ARTICLE 23
 NO WAIVER

 	
 60

 
	
 ARTICLE 24
 WAIVER OF TRIAL BY JURY

 	
 61

 
	
 ARTICLE 25
 INABILITY TO PERFORM

 	
 62

 
	
 ARTICLE 26
 BILLS AND NOTICES

 	
 62

 
	
 ARTICLE 27
 ESCALATION

 	
 63

 
	
 ARTICLE 28
 SERVICES

 	
 78

 
	
 ARTICLE 29
 PARTNERSHIP TENANT

 	
 83

 
	
 ARTICLE 30
 VAULT SPACE

 	
 84

 
	
 ARTICLE 31
 SECURITY

 	
 84

 
	
 ARTICLE 32
 CAPTIONS

 	
 86

 
	
 ARTICLE 33
 PARTIES BOUND

 	
 86

 
	
 ARTICLE 34
 BROKER

 	
 86

 
	
 ARTICLE 35
 INDEMNITY

 	
 87

 
	
 ARTICLE 36
 ADJACENT EXCAVATION-SHORING

 	
 88

 
	
 ARTICLE 37
 DEFINITIONS

 	
 88

 
	
 ARTICLE 38
 MISCELLANEOUS

 	
 94

 
	
 ARTICLE 39
 RIGHT OF FIRST OFFER

 	
 98

 
	
 ARTICLE 40
 RIGHT OF FIRST OFFER- STORAGE SPACE

 	
 102

 
	
 ARTICLE 41
 RENEWAL OPTION

 	
 106

 
	
 ARTICLE 42
 RENT CONTROL

 	
 107

 


i









	
  

 	
  

 
	
 EXHIBIT A -
 FLOOR PLAN

 	
  

 
	
  

 	
  

 
	
 EXHIBIT B -
 LANDLORD’S WORK

 	
  

 
	
  

 	
  

 
	
 EXHIBIT C -
 LIST OF CONTRACTORS APPROVED BY LANDLORD

 	
  

 
	
  

 	
  

 
	
 EXHIBIT D -
 FORM OF SNDA

 	
  

 
	
  

 	
  

 
	
 EXHIBIT E -
 CERTIFICATE OF OCCUPANCY

 	
  

 
	
  

 	
  

 
	
 EXHIBIT F -
 INTENTIONALLY OMITTED

 	
  

 
	
  

 	
  

 
	
 EXHIBIT G -
 VAC UNIT PERFORMANCE SPECIFICATIONS

 	
  

 
	
  

 	
  

 
	
 EXHIBIT H -
 FORM OF LETTER OF CREDIT

 	
  

 
	
  

 	
  

 
	
 EXHIBIT I -
 CONFIRMATION OF REGISTERED OFFICE IN GERMANY

 	
  

 
	
  

 	
  

 
	
 EXHIBIT J -
 FIRST OFFER SPACE

 	
  

 
	
  

 	
  

 
	
 EXHIBIT K -
 FIRST OFFER SPACE SUPERIOR RIGHTS

 	
  

 
	
  

 	
  

 
	
 EXHIBIT L -
 FIRST OFFER STORAGE SPACE

 	
  

 
	
  

 	
  

 
	
 EXHIBIT M -
 FORM OF COMMENCEMENT DATE AGREEMENT

 	
  

 
	
  

 	
  

 
	
 EXHIBIT N -
 EIGHTEENTH FLOOR DEMISING PLAN

 	
  

 
	
  

 	
  

 
	
 SCHEDULE A -
 RULES AND REGULATIONS

 	
  

 
	
  

 	
  

 
	
 SCHEDULE B -
 CLEANING SPECIFICATIONS

 	
  

 


ii





FIRST AMENDMENT TO LEASE


          THIS FIRST
AMENDMENT TO AGREEMENT OF LEASE (this “Amendment”), made as of the 23rd
day of August, 2007, between PPF OFF TWO PARK AVENUE OWNER, LLC, as landlord,
having an office at c/o Morgan Stanley Real Estate Advisors, Inc., 1585
Broadway, New York, New York 10036 (“Landlord”) and COTY INC., having an
office at 2 Park Avenue, New York, New York 10016 (“Tenant”).


W
I T N E S S E T H


          WHEREAS,
pursuant to that certain Agreement of Lease, dated as of December 30, 2005 (the
“Lease”), Landlord’s predecessor in interest, Seb Immobilien-Investment
GmbH, leased to Tenant and Tenant leased from Landlord certain premises
consisting of the entire rentable area of the 17th floor and a
portion of the 18th floor of the building known as 2 Park Avenue,
New York, New York (the “Building”);


          WHEREAS,
pursuant to the Lease, Tenant has exercised its right of first offer to lease a
portion of the rentable area on the sixteenth (16th) floor of the
Building, identified as suite 1600, (the “Sixteenth Floor Space”), and
as shown hatched on the floor plan attached hereto and made a part hereof as “Exhibit
A”; and the parties are desirous of leasing the Sixteenth Floor Space on
the terms and conditions hereinafter set forth; and the parties agree to
otherwise amend and modify the Lease as hereinafter set forth;


          NOW
THEREFORE, in consideration of the sum of Ten ($10.00) Dollars paid by Tenant
to Landlord and for other good and valuable consideration, the mutual receipt
and legal sufficiency of which are hereby acknowledged, the parties agree as
follows.


          1. Unless
otherwise stated herein, all capitalized terms used in this Amendment shall
have the meanings specified in the Lease.





          2.
Effective as of the date hereof, the Lease shall be modified and amended, with
respect to the Sixteenth Floor Space only, as follows:


	
  

 	
  

 
	
  

 	
           (a) The
 Sixteenth Floor Space shall be leased by Landlord to Tenant for a term to
 commence on the First Offer Space Inclusion Date (as hereinafter defined) and
 to expire on the Expiration Date, (the “Sixteenth Floor Term”), unless
 sooner terminated pursuant to the provisions of the Lease or pursuant to law;
 the Sixteenth Floor Space shall be added to and deemed a part of the Premises
 for all purposes of the Lease except as otherwise provided herein.

 
	
  

 	
  

 
	
  

 	
           (b) For
 the purposes of this Amendment only, references in Section 39 of the
 Lease to the “First Offer Space” shall refer to the Sixteenth Floor
 Space.

 
	
  

 	
  

 
	
  

 	
           (c) For
 the purposes of this Amendment, with respect to the Sixteenth Floor Space
 only, references in Section 39 of the Lease to the “First Offer
 Space Inclusion Date” shall mean September 1, 2007. If on September 1,
 2007, the Sixteenth Floor Space is not in First Offer Space Condition
 pursuant to Section 39 of the Lease, the First Offer Space Inclusion
 Date shall be the date on which the Sixteenth Floor Space is delivered to
 Tenant in First Offer Space Condition. Except as provided in the next
 sentence, Tenant expressly waives any right to rescind this Amendment or the
 Lease under Section 223-a of the New York Real Property Law, and further
 expressly waives the right to recover any damages which may result from
 Landlord’s failure to deliver possession of the Sixteenth Floor Space on the
 date specified as the First Offer Space Inclusion Date. Notwithstanding
 the foregoing, if the First Offer Space Inclusion Date shall not occur by
 March 1, 2008, then Tenant shall have the right, by giving notice to Landlord
 by March 15, 2008, to rescind Tenants acceptance of its option to lease the
 Sixteenth Floor Space as

 


2









	
  

 	
  

 
	
  

 	
 First Offer Space. If Tenant shall rescind the acceptance of its
 option as aforesaid in a timely manner, Landlord shall be free to lease the
 Sixteenth Floor Space to others on terms as Landlord may, in its sole
 discretion, desire.

 
	
  

 	
  

 
	
  

 	
           (d) For
 the purposes of this Amendment, the “Sixteenth Floor Rent Commencement
 Date” shall mean July 29, 2008, provided however if the First Offer Space
 Inclusion Date shall occur after September 1, 2007 then the Sixteenth Floor
 Rent Commencement Date shall be delayed one (1) day for each day that the
 First Offer Space Inclusion Date shall occur after September 1, 2007.

 
	
  

 	
  

 
	
  

 	
           (e) For
 the purposes of this Amendment, with respect to the Sixteenth Floor Space
 only, references in Section 39 of the Lease to the “First Offer
 Space Term” shall refer to the Sixteenth Floor Term (as hereinafter
 defined).

 
	
  

 	
  

 
	
  

 	
           (f) For
 the Sixteenth Floor Space only, Tenant shall pay Fixed Rent (a) for the
 period commencing on the Sixteenth Floor Rent Commencement Date and up to and
 including March 25, 2012, both dates inclusive, at the annual fixed rental
 rate of Two Hundred Seventy Nine Thousand Two Hundred and Seventy Six and
 00/100 Dollars ($279,276.00), payable in equal monthly installments of Twenty
 Three Thousand Two Hundred and Seventy Three and 00/100 Dollars ($23,273.00)
 in advance on the first day of each and every calendar month during said
 period, (b) for the period commencing March 26, 2012 and up to and including
 March 25, 2017, both dates inclusive, at the annual fixed rental rate of
 Three Hundred and Nine Thousand Four Hundred and Sixty Eight and 00/100
 Dollars ($309,468.00), payable in equal monthly installments of Twenty Five
 Thousand Seven Hundred and Eighty Nine and 00/100 Dollars ($25,789.00) in
 advance on the first day of each and every calendar month during said period,
 and (c) 

 


3









	
  

 	
  

 
	
  

 	
 for the period commencing March 26, 2017 and up to and including the
 Expiration Date, both dates inclusive, at the annual fixed rental rate of
 Three Hundred Thirty Nine Thousand Six Hundred and Sixty and 00/100 Dollars
 ($339,660.00), payable in equal monthly installments of Twenty Eight Thousand
 Three Hundred and Five and 00/100 Dollars ($28,305.00) in advance on the
 first day of each and every calendar month during said period.

 
	
  

 	
  

 
	
  

 	
           (g) For
 the Sixteenth Floor Space only, the term “Base Tax Year” shall be the
 fiscal tax year commencing July 1, 2007 and ending June 30, 2008.

 
	
  

 	
  

 
	
  

 	
           (h) For
 the Sixteenth Floor Space only, the term “Base Operating Year” shall
 be the calendar year ending December 31, 2007.

 
	
  

 	
  

 
	
  

 	
           (i) For
 the Sixteenth Floor Space only, the term “Tenant’s Share” shall mean
 0.7826%.

 
	
  

 	
  

 
	
  

 	
           (j) For
 the Sixteenth Floor Space only, the term “Tenant’s Tax Share” shall
 mean 0.7601%.

 
	
  

 	
  

 
	
  

 	
           (k) For
 the Sixteenth Floor Space only, the term “Tenant Fund” shall mean $502,047.29.
 If the Sixteenth Floor Rent Commencement Date is delayed in accordance with
 Paragraph (2)(d) above, the Tenant Fund shall be recalculated in accordance
 with the provisions of Section 39.2(vii) of the Lease.

 


          3. On the
First Offer Space Inclusion Date, Landlord shall deliver the Sixteenth Floor
Space in the First Offer Space Condition, in accordance with the terms and
conditions of Section 39 of the Lease. Landlord and Tenant agree that
notwithstanding the occurrence of the First Offer Space Condition, Landlord
shall remain obligated to abate all ACM in the Sixteenth Floor Space in
accordance with, and subject to, the provisions of Section 39.6 of the Lease.


4





          4. Landlord
and Tenant each represents and warrants to the other that it has not dealt with
any broker in connection with this Amendment other than L&L Holding
Company, LLC and CB Richard Ellis, Inc. (collectively, the “Broker”).
Each party agrees to defend, indemnify and hold harmless the other party
against and from any claims for any brokerage commissions and all costs,
expenses and liabilities in connection therewith, including, without
limitation, reasonable attorneys’ fees and disbursements, arising out of claims
asserted by any broker (other than Broker with respect to Tenant’s indemnity of
Landlord) claiming to have represented such party in connection with this
Lease. Landlord shall pay any brokerage commissions due to Broker by reason of
this Amendment or the transactions contemplated herein pursuant to separate agreement(s)
between Landlord and Broker. The provisions of this paragraph shall survive the
expiration or earlier termination of the Lease or this Amendment.


          5. This
Amendment together with the Lease, constitutes the entire agreement of the
parties hereto with respect to the matters stated herein and may not be amended
or modified unless such amendment or modification shall be in writing and
signed by the party against whom enforcement is sought.


          6. The
terms, covenants and conditions contained in this Amendment shall bind and
inure to the benefit of the parties hereto and their respective permitted
successors and assigns.


          7. This
Amendment shall be governed in all respects by the laws of the State of New
York.


          8. Except
as amended and modified hereby, all terms of the Lease as heretofore in effect
shall remain in full force and effect, and, as amended and modified hereby, are
hereby ratified and confirmed in all respects.


5





          9.
This Amendment may be executed in any number of counterparts, each of which
shall be a valid and binding original, but all of which together shall
constitute one and the same instrument.


6





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


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 LANDLORD:

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 PPF OFF TWO
 PARK AVENUE OWNER, LLC, a

 Delaware limited liability company

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By:

 	
 PPF OFF TWO
 PARK AVENUE, LLC, a 

 
	
  

 	
  

 	
  

 	
 Delaware
 limited liability company

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By:

 	
 PPF OFF,
 LLC, a Delaware limited 

 
	
  

 	
  

 	
  

 	
  

 	
 liability
 company, its Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
 By:

 	
 PPF OP, LP,
 a Delaware limited 

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 partnership,
 its Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 By:

 	
 PPF OPGP,
 LLC, a Delaware 

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 limited
 liability company, its 

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 General
 Partner

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By:

 	
 PRIME
 PROPERTY FUND, 

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 LLC, a
 Delaware limited 

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 liability
 company, its Member

 






	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By:

 	
 MORGAN
 STANLEY 

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 REAL ESTATE
 ADVISOR, 

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 INC., a
 Delaware corporation

 






	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By:

 	
    /s/
 Thomas D. Carey

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Name: Thomas
 D. Carey

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Title:
   Executive Director

 






	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 TENANT:

 
	
  

 	
  

 
	
  

 	
 COTY INC., a
 Delaware corporation

 
	
  

 	
  

 
	
  

 	
 By:

 	
    /s/
 Michael Fishoff

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
 Name:
 Michael Fishoff

 	
  

 
	
  

 	
  

 	
 Title: CFO

 	
  

 


7





Exhibit A


Sixteenth Floor Space





[Floor Plan]





[Floor Plan]





EXECUTION VERSION


SECOND
AMENDMENT TO LEASE


          THIS SECOND
AMENDMENT TO AGREEMENT OF LEASE (this “Amendment”), is made as of the
18th day of November, 2007, between PPF OFF TWO PARK AVENUE OWNER, LLC, as
landlord, having an office at c/o Morgan Stanley Real Estate Advisor, Inc.,
1585 Broadway, New York, New York 10036 (“Landlord”) and COTY INC., as
tenant, having an office at 2 Park Avenue, New York, New York 10016 (“Tenant”).


W
I T N E S S E T H


          WHEREAS,
pursuant to that certain Agreement of Lease, dated as of December 30, 2005, as
amended by that certain Commencement Date Agreement, dated April 19, 2006 and
by that certain First Amendment to Lease, dated as of August 23, 2007 (the
Agreement of Lease as heretofore amended is hereinafter referred to as the “Lease”),
Landlord, through Landlord’s predecessor-in-interest, Seb Immobilien-Investment
GmbH with respect to the original Agreement of Lease, and directly, with
respect to the First Amendment to Lease, leased to Tenant certain premises consisting
of a portion of the 16th floor, the entire rentable area of the 17th
floor and a portion of the 18th floor (collectively, the “Original
Premises”) of the building known as 2 Park Avenue, New York, New York (the
“Building”);


          WHEREAS,
Landlord and Tenant desire to modify and amend the Lease in order to provide
for the leasing to Tenant of certain additional space in the Building, and in
certain other respects, all as set forth in this Amendment;


          NOW
THEREFORE, in consideration of the sum of Ten ($10.00) Dollars paid by Tenant
to Landlord and for other good and valuable consideration, the mutual receipt
and legal sufficiency of which are hereby acknowledged, the parties hereto, for
themselves, their legal representatives, successors and assigns, hereby agree
to further modify and amend the Lease as follows:


ARTICLE I.

DEFINED TERMS


          SECTION
1.1. Unless otherwise stated herein, all capitalized terms used in this
Amendment shall have the meanings specified in the Lease.


          SECTION
1.2. For purposes of this Amendment only, “Substantial Completion” or “Substantially
Completed” or words of similar import, when used with respect to work to be
performed by Landlord hereunder, shall mean that such work has been
substantially completed, it being agreed that such work shall be deemed
substantially completed notwithstanding the fact that minor or insubstantial
details of construction or demolition and/or mechanical adjustment and/or
decorative items remain to be performed, the non-completion of which does not
(and the completion of which, shall not) materially interfere with the
performance of the Unit 15A Initial Alterations, the Unit 15B Initial
Alterations or the Unit 15C Initial Alterations (as the case may be), and that
with respect to Landlord’s Unit 15A Space Work, Landlord’s Unit 15B Space Work
and Landlord’s Unit 15C Space
Work, Tenant is able to obtain all services and facilities under the Lease
(other than cleaning and janitorial services under Section 28.4(A)).





ARTICLE II.

UNIT 15A


          SECTION
2.1. Effective as of the Unit 15A Space Inclusion Date (as hereinafter
defined), Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord a portion of the fifteenth (15th) floor of the Building
indicated by hatching on the floor plan annexed hereto as Exhibit “A”
and made a part hereof (the “Unit 15A Space”) for a term to commence on the
Unit 15A Space Inclusion Date and to expire on the Expiration Date, unless
sooner terminated pursuant to the provisions of the Lease, as amended hereby,
or pursuant to law; the Unit 15A Space shall be added to and deemed a part of
the Premises for all purposes of the Lease except (i) Sections 1.2, 1.5, 1.6,
3.2, 13.5, 19.2 and Exhibit B of the Lease shall not be applicable to the Unit
15A Space, (ii) as otherwise provided herein. The term “Unit 15A Space
Inclusion Date” shall mean the date upon which Landlord shall deliver
possession of the Unit 15A Space to Tenant with all items of Landlord’s Unit
15A Space Work (as hereinafter defined). 

Substantially Complete, in broom-clean condition, free of any debris, vacant
and free of occupants, but in no event prior to June 1, 2008 or such earlier
date specified by Landlord upon at least ninety (90) days prior written notice
to Tenant. Landlord shall use reasonable efforts to complete any “punch-list”
work within forty-five (45) days after the date that Landlord’s Unit 15A Space
Work has been Substantially Completed. Landlord agrees that, subject to
Unavoidable Delays, Landlord’s Unit 15A Space Work shall be prosecuted with due
diligence; provided, however, Landlord shall not be obligated to employ
contractors or labor at so-called overtime or other premium pay rates or to
incur any other overtime costs or expenses whatsoever. At Tenant’s request,
Landlord from time to time shall keep Tenant apprised of the date on which
Landlord shall obtain possession of the Unit 15A Space and the progress of the
performance of Landlord’s Unit 15A Space Work.


          SECTION
2.2. If Landlord is unable to give possession of the Unit 15A Space because of
the holding over or retention of possession of any tenant, under-tenant or
occupant or for any other reason, (a) Landlord shall not be subject to any
liability for failure to give possession on said date, (b) the validity of the
Lease or this Amendment shall not be impaired under such circumstances, nor
shall the same be construed in any way to extend the term of the Lease with
respect to the Unit 15A Space or otherwise, (c) Tenant waives any right to rescind
the Lease or this Amendment under Section 223-a of the New York Real Property
Law or any successor statute of similar nature and purpose then in force, and
further waives the right to recover any damages which may result from
Landlord’s failure to deliver possession of the Unit 15A Space or portion
thereof to Tenant and agrees that the provisions of this Section 2.2 shall
constitute “an express provision to the contrary” within the meaning of Section
223-a of the New York Real Property Law, and (d) Landlord represents that the
existing lease of the Unit 15A Space expires on May 31, 2008 and that Landlord
shall not extend such date without Tenant’s consent, and that Landlord, at
Landlord’s expense, shall use reasonable efforts to deliver possession of the Unit
15A Space and in connection therewith diligently and in good faith prosecute
holdover and any other appropriate proceedings against the occupant of such
space.


          SECTION
2.3. The term “Unit 15A Rent Commencement Date” shall mean the day that
is four (4) months after the Unit 15A Space Inclusion Date. (By way of example,
if the Unit 15A Space Inclusion Date shall be June 15, 2008, then the Unit 15A
Rent Commencement Date shall be October 15, 2008).


2





          SECTION
2.4. With respect to the Unit 15A Space only, Tenant shall pay Fixed Rent (a)
for the period commencing on the Unit 15A Rent Commencement Date and up to and
including March 31, 2012, both dates inclusive, at the annual fixed rental rate
of Nine Hundred Seventy Four Thousand Two Hundred Sixty Seven and 00/100
Dollars ($974,267.00), payable in equal monthly installments of Eighty One
Thousand One Hundred Eighty Eight and 92/100 Dollars ($81,188.92) in advance at
the time and in the manner provided in the Lease during said period, (b) for
the period commencing April 1, 2012 and up to and including March 31, 2017,
both dates inclusive, at the annual fixed rental rate of One Million Fifty Six
Thousand Eight Hundred Thirty Two and 00/100 Dollars ($1,056,832.00), payable
in equal monthly installments of Eighty Eight Thousand Sixty Nine and 33/100
Dollars ($88,069.33) in advance at the time and in the manner provided in the
Lease during said period, and (c) for the period commencing April 1, 2017 and
up to and including the Expiration Date, both dates inclusive, at the annual
fixed rental rate of One Million One Hundred Thirty Nine Thousand Three Hundred
Ninety Seven and 00/100 Dollars ($1,139,397.00), payable in equal monthly
installments of Ninety Four Thousand Nine Hundred Forty Nine and 75/100 Dollars
($94,949.75) in advance at the time and in the manner provided in the Lease
during said period.


          SECTION
2.5. Effective as of the Unit 15A Space Inclusion Date, the Lease shall be
modified and amended, with respect to the Unit 15A Space only, as follows:


          (a) With
respect to the Unit 15A Space only, the term “Base Tax Year” shall mean
the fiscal tax year commencing July 1, 2008 and ending June 30, 2009.


          (b) With
respect to the Unit 15A Space only, the term “Base Operating Year” shall
mean the calendar year ending December 31, 2008.


          (c) With
respect to the Unit 15A Space only, the term “Base Insurance Year” shall
mean the calendar year ending December 31, 2008.


          (d) With
respect to the Unit 15A Space only, the term “Base Energy Year” shall
mean the calendar year ending December 31, 2008.


          (e) With
respect to the Unit 15A Space only, the term “Tenant’s Share” shall mean
1.7122%.


          (f) With
respect to the Unit 15A Space only, the term “Tenant’s Tax Share” shall
mean 1.6631%.


          (g) The
term “Unit 15A Tenant Fund” shall mean Six Hundred Sixty Thousand Five
Hundred Twenty and 00/100 Dollars ($660,520.00).


          SECTION
2.6. Tenant acknowledges that Landlord has made no representations to Tenant
with respect to the Unit 15A Space, except as set forth herein. Tenant hereby
represents that it has made a thorough inspection of the Unit 15A Space and
agrees to take the Unit 15A Space “AS-IS” in the condition existing on the Unit
15A Space Inclusion Date, and agrees that, notwithstanding anything to the
contrary contained in the Lease, except as expressly provided in this
Amendment, Landlord shall have no obligation to provide any funds or to alter,
repair, improve, decorate or otherwise prepare the same for Tenant’s occupancy,
except that (i) Landlord


3





shall perform the work described on Exhibit “D” attached hereto
and made a part hereof (“Landlord’s Unit 15A Space Work”), and (ii) the
provisions of Section 6.3 of the Lease shall apply to the Unit 15A Space.
Landlord has made and makes no representation as to the date on which it shall
Substantially Complete Landlord’s Unit 15A Space Work and Landlord shall be
under no penalty or liability to Tenant whatsoever by reason of any delay in
such performance.


          SECTION
2.7. For the purposes of this Amendment, the term “Landlord’s 15th
Floor Work” shall mean the work described on Exhibit “G” attached
hereto and made a part hereof. Landlord shall perform Landlord’s 15th
Floor Work promptly after the completion of Landlord’s Unit 15A Space Work,
provided that Landlord has made and makes no representation as to the date on
which it shall Substantially Complete Landlord’s 15th Floor Work and
Landlord shall be under no penalty or liability to Tenant whatsoever by reason
of any delay in such performance. Landlord’s 15th Floor Work shall
be prosecuted with reasonable diligence so that it shall be Substantially
Completed by the later of (i) the date upon which Tenant completes the Unit 15A
Initial Alterations and (ii) ninety (90) days after the occurrence of the Unit
15A Space Inclusion Date. Nothing contained in this Section 2.8 shall be deemed
to impose upon Landlord any obligation to employ contractors or labor at
so-called overtime or other premium pay rates or to incur any other overtime
costs or expenses whatsoever in connection with Landlord’s 15th Floor Work.
Landlord and Tenant shall cooperate in good faith in connection with scheduling
and sequencing Tenant’s performance of Tenants’ Unit 15A Initial Alterations
(as hereinafter defined) with Landlord’s performance of Landlord’s 15th
Floor Work. Tenant covenants and agrees that Tenant shall not in any way
interfere with or otherwise hinder Landlord’s performance of Landlord’s 15th
Floor Work. Tenant acknowledges and agrees that the performance of Landlord’s
15th Floor Work shall have no effect on the Lease or this Amendment
or Tenant’s obligations thereunder or hereunder nor shall Tenant be entitled to
an abatement of rent or any other compensation in connection therewith, nor
shall the same be deemed an eviction or subject Landlord to any liability.


          SECTION
2.8. Effective as of the Unit 15A Space Inclusion Date, Section 28.2 of the
Lease shall be modified and amended, with respect to the Unit 15A Space only,
by deleting the phrase “and shall provide 178 tons of aggregate cooling
capacity” therefrom.


          SECTION
2.9. Upon the determination of the Unit 15A Space Inclusion Date and the Unit
15A Rent Commencement Date, as aforesaid, the parties shall within ten (10)
days thereafter, at either party’s request, execute a written agreement
confirming such Dates, which agreement shall be in the form annexed hereto as Exhibit
“I”. Any failure of the parties to execute such written agreement shall not
affect the validity of the Unit 15A Space Inclusion Date or the Unit 15A Rent
Commencement Date.


          SECTION
2.10. Effective as of the Unit 15A Space Inclusion Date, Tenant’s Condenser
Water Allocation, with respect to the Unit 15A Space only, shall be increased
by seven and one-half (7.5) additional tons of condenser water, which Landlord
shall furnish to Tenant’s condenser water cooled supplementary air conditioning
system servicing the Unit 15A Space (if any) in accordance with, and subject
to, the terms and conditions of Section 3.5 of the Lease. Tenant shall pay for
such additional Condenser Water Allocation at the rate and in the manner
provided in the Lease.


4





          SECTION
2.11. Provided that no Event of Default shall have occurred and be continuing
on the date upon which Tenant shall utilize such service, Landlord hereby
agrees that Tenant shall not be charged any overtime fee for (i) the first
fifteen (15) hours of overtime freight elevator service that Tenant utilizes with
respect to Tenant’s performance of the Unit 15A Initial Alterations and (ii)
the first ten (10) hours of overtime freight elevator service that Tenant
utilizes with respect to Tenant’s initial move into the Unit 15A Space for the
conduct of Tenant’s business. Tenant shall make requests for such overtime
freight elevator service from Landlord in accordance with the provisions of
Article 28.1(B) of the Lease, and shall utilize such service in accordance with
Landlord’s Rules and Regulations applicable thereto. For the purposes hereof,
“overtime freight elevator service” shall mean any freight elevator service
utilized by Tenant between the hours of (a) 12:00 P.M. and 2:00 P.M. and (b)
5:00 P.M. and 8:00 A.M. on Business Days or at any time on any other days.


ARTICLE III.

UNIT 15B


          SECTION
3.1. Effective as of the Unit 15B Space Inclusion Date (as hereinafter
defined), Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord a portion of the fifteenth (15th) floor of the Building
indicated by hatching on the floor plan annexed hereto as Exhibit “B”
and made a part hereof (the “Unit 15B Space”) for a term to commence on
the Unit 15B Space Inclusion Date and to expire on the Expiration Date, unless
sooner terminated pursuant to the provisions of the Lease, as amended hereby,
or pursuant to law; the Unit 15B Space shall be added to and deemed a part of
the Premises for all purposes of the Lease except (i) Sections 1.2, 1.5, 1.6,
3.2, 13.5, 19.2 and Exhibit B of the Lease shall not be applicable to the Unit
15B Space, and (ii) as otherwise provided herein. The term “Unit 15B Space
Inclusion Date” shall mean the date upon which Landlord shall deliver
possession of the Unit 15B Space to Tenant with all items of Landlord’s Unit
15B Space Work (as hereinafter defined) Substantially Complete, in broom-clean
condition, free of any debris, vacant and free of occupants, but in no event
prior to November 1, 2009 or such earlier date specified by Landlord upon at
least ninety (90) days prior written notice to Tenant. Landlord shall use
reasonable efforts to complete any “punch-list” work within forty-five (45)
days after the date that Landlord’s Unit 15B Space Work has been Substantially
Completed. Landlord agrees that, subject to Unavoidable Delays, Landlord’s Unit
15B Space Work shall be prosecuted with due diligence; provided, however,
Landlord shall not be obligated to employ contractors or labor at so-called
overtime or other premium pay rates or to incur any other overtime costs or
expenses whatsoever. At Tenant’s request, Landlord from time to time shall keep
Tenant apprised of the date on which Landlord shall obtain possession of the
Unit 15B Space and the progress of the performance of Landlord’s Unit 15B Space
Work.


          SECTION
3.2. If Landlord is unable to give possession of the Unit 15B Space because of
the holding over or retention of possession of any tenant, under-tenant or
occupant or for any other reason, (a) Landlord shall not be subject to any
liability for failure to give possession on said date, (b) the validity of the
Lease or this Amendment shall not be impaired under such circumstances, nor
shall the same be construed in any way to extend the term of the Lease with
respect to the Unit 15B Space or otherwise, (c) Tenant waives any right to
rescind the Lease or this Amendment under Section 223-a of the New York Real
Property Law or any successor statute of similar nature and purpose then in
force, and further waives the right to recover any


5





damages which may result from Landlord’s failure to deliver possession
of the Unit 15B Space or portion thereof to Tenant and agrees that the
provisions of this Section 3.2 shall constitute “an express provision to the
contrary” within the meaning of Section 223-a of the New York Real Property
Law, and (d) Landlord represents that the existing lease of the Unit 15B Space
expires on October 31, 2009 and that Landlord shall not extend such date
without Tenant’s consent, and that Landlord, at Landlord’s expense, shall use
reasonable efforts to deliver possession of the Unit 15B Space and in
connection therewith diligently and in good faith prosecute holdover and any
other appropriate proceedings against the occupant of such space.


          SECTION
3.3. The term “Unit 15B Rent Commencement Date” shall mean the day that
is four (4) months after the Unit 15B Space Inclusion Date. (By way of example,
if the Unit 15B Space Inclusion. Date shall be November 11, 2009, then the Unit
15B Rent Commencement Date shall be March 11, 2010).


          SECTION 3.4.
With respect to the Unit 15B Space only, Tenant shall pay Fixed Rent (a) for
the period commencing on the Unit 15B Rent Commencement Date and up to and
including March 31, 2012, both dates inclusive, at the annual fixed rental rate
of One Hundred Twenty Seven Thousand Six Hundred Seventy Six and 00/100 Dollars
($127,676.00), payable in equal monthly installments of Ten Thousand Six
Hundred Thirty Nine and 67/100 Dollars ($10,639.67) in advance at the time and
in the manner provided in the Lease during said period, (b) for the period
commencing April 1, 2012 and up to and including March 31, 2017, both dates
inclusive, at the annual fixed rental rate of One Hundred Thirty Eight Thousand
Four Hundred Ninety Six and 00/100 Dollars ($138,496.00), payable in equal
monthly installments of Eleven Thousand Five Hundred Forty One and 33/100
Dollars ($11,541.33) in advance at the time and in the manner provided in the
Lease during said period, and (c) for the period commencing April 1, 2017 and
up to and including the Expiration Date, both dates inclusive, at the annual
fixed rental rate of One Hundred Forty Nine Thousand Three Hundred Sixteen and
00/100 Dollars ($149,316.00), payable in equal monthly installments of Twelve
Thousand Four Hundred Forty Three and 00/100 Dollars ($12,443.00) in advance at
the time and in the manner provided in the Lease during said period.


          SECTION
3.5. Effective as of the Unit 15B Space Inclusion Date, the Lease shall be
modified and amended, with respect to the Unit 15B Space only, as follows:


          (a) With
respect to the Unit 15B Space only, the term “Base Tax Year” shall mean
the fiscal tax year commencing July 1, 2008 and ending June 30, 2009.


          (b) With
respect to the Unit 15B Space only, the term “Base Operating Year” shall
mean the calendar year ending December 31, 2008.


          (c) With
respect to the Unit 15B Space only, the term “Base Insurance Year” shall
mean the calendar year ending December 31, 2008.


          (d) With
respect to the Unit 15B Space only, the term “Base Energy Year” shall
mean the calendar year ending December 31, 2008.


          (e) With
respect to the Unit 15B Space only, the term “Tenant’s Share” shall mean
0.2244%.


6





          (f) With
respect to the Unit 15B Space only, the term “Tenant’s Tax Share” shall
mean 0.2179%.


          (g) The
term “Unit 15B Tenant Fund” shall mean Eighty Six Thousand Five Hundred
Sixty and 00/100 Dollars ($86,560.00).


          SECTION
3.6. Tenant acknowledges that Landlord has made no representations to Tenant
with respect to the Unit 15B Space, except as set forth herein. Tenant hereby
represents that it has made a thorough inspection of the Unit 15B Space and
agrees to take the Unit 15B Space “AS-IS” in the condition existing on the Unit
15B Space Inclusion Date, and agrees that, notwithstanding anything to the
contrary contained in the Lease, except as expressly provided in this
Amendment, Landlord shall have no obligation to provide any funds or to alter,
repair, improve, decorate or otherwise prepare the same for Tenant’s occupancy,
except that (i) Landlord shall perform the work described on Exhibit “E”
attached hereto and made a part hereof (“Landlord’s Unit 15B Space Work”),
and (ii) the provisions of Section 6.3 of the Lease shall apply to the Unit 15B
Space. Landlord has made and makes no representation as to the date on which it
shall Substantially Complete Landlord’s Unit 15B Space Work and Landlord shall
be under no penalty or liability to Tenant whatsoever by reason of any delay in
such performance.


          SECTION
3.7. Effective as of the Unit 15B Space Inclusion Date, Section 28.2 of the
Lease shall be modified and amended, with respect to the Unit 15B Space only,
by deleting the phrase “and shall provide 178 tons of aggregate cooling capacity”
therefrom.


          SECTION
3.8. Upon the determination of the Unit 15B Space Inclusion Date and the Unit
15B Rent Commencement Date, as aforesaid, the parties shall within ten (10)
days thereafter, at either party’s request, execute a written agreement
confirming such Dates, which agreement shall be in the form annexed hereto as Exhibit
“I”. Any failure of the parties to execute such written agreement shall not
affect the validity of the Unit 15B Space Inclusion Date or the Unit 15B Rent
Commencement Date.


          SECTION
3.9. Effective as of the Unit 15B Space Inclusion Date, Tenant’s Condenser
Water Allocation, with respect to the Unit 15B Space only, shall be increased
by two and one-half (2.5) additional tons of condenser water, which Landlord shall
furnish to Tenant’s condenser water cooled supplementary air conditioning
system servicing the Unit 15B Space (if any) in accordance with, and subject
to, the terms and conditions of Section 3.5 of the Lease. Tenant shall pay for
such additional Condenser Water Allocation at the rate and in the manner
provided in the Lease.


          SECTION
3.10. Provided that no Event of Default shall have occurred and be continuing
on the date upon which Tenant shall utilize such service, Landlord hereby
agrees that Tenant shall not be charged any overtime fee for (i) the first ten
(10) hours of overtime freight elevator service that Tenant utilizes with
respect to Tenant’s performance of the Unit 15B Initial Alterations and (ii)
the first five (5) hours of overtime freight elevator service that Tenant
utilizes with respect to Tenant’s initial move into the Unit 15B Space for the
conduct of Tenant’s business. Tenant shall make requests for such overtime
freight elevator service from Landlord in accordance with the provisions of
Article 28.1(B) of the Lease, and shall utilize such service in accordance with
Landlord’s Rules and Regulations applicable thereto. For the purposes hereof, 


7





“overtime freight elevator service” shall mean any freight elevator
service utilized by Tenant between the hours of (a) 12:00 P.M. and 2:00 P.M.
and (b) 5:00 P.M. and 8:00 A.M. on Business Days or at any time on any other
days.


ARTICLE IV.

UNIT 15C


          SECTION
4.1. Effective as of the Unit 15C Space Inclusion Date (as hereinafter
defined), Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord a portion of the fifteenth (15th) floor of the Building
indicated by hatching on the floor plan annexed hereto as Exhibit “C”
and made a part hereof for a term to commence on the Unit 15C Space Inclusion
Date and to expire on the Expiration Date (the “Unit 15C Term”), unless
sooner terminated pursuant to the provisions of the Lease, as amended hereby,
or pursuant to law; the Unit 15C Space shall be added to and deemed a part of
the Premises for all purposes of the Lease except (i) Sections 1.2, 1.5, 1.6,
3.2, 13.5, 19.2 and Exhibit B of the Lease shall not be applicable to the Unit
15C Space, and (ii) as otherwise provided herein. The term “Unit 15C Space
Inclusion Date” shall mean the date upon which Landlord shall deliver
possession of the Unit 15C Space to Tenant with all items of Landlord’s Unit
15C Space Work (as hereinafter defined) Substantially Complete, in broom-clean
condition, free of any debris, vacant and free of occupants, but in no event
prior to May 1, 2011 or such earlier date specified by Landlord upon at least
ninety (90) days prior written notice to Tenant. Landlord shall use reasonable
efforts to complete any “punch-list” work within forty-five (45) days after the
date that Landlord’s Unit 15C Space Work has been Substantially Completed.
Landlord agrees that, subject to Unavoidable Delays, Landlord’s Unit 15C Space
Work shall be prosecuted with due diligence; provided, however, Landlord shall
not be obligated to employ contractors or labor at so-called overtime or other
premium pay rates or to incur any other overtime costs or expenses whatsoever.
At Tenant’s request, Landlord from time to time shall keep Tenant apprised of
the date on which Landlord shall obtain possession of the Unit 15C Space and
the progress of the performance of Landlord’s Unit 15C Space Work.


          SECTION
4.2. If Landlord is unable to give possession of the Unit 15C Space because of
the holding over or retention of possession of any tenant, under-tenant or
occupant or for any other reason, (a) Landlord shall not be subject to any
liability for failure to give possession on said date, (b) the validity of the
Lease or this Amendment shall not be impaired under such circumstances, nor shall
the same be construed in any way to extend the term of the Lease with respect
to the Unit 15C Space or otherwise, (c) Tenant waives any right to rescind the
Lease or this Amendment under Section 223-a of the New York Real Property Law
or any successor statute of similar nature and purpose then in force, and
further waives the right to recover any damages which may result from
Landlord’s failure to deliver possession of the Unit 15C Space or portion
thereof to Tenant and agrees that the provisions of this Section 4.2 shall
constitute “an express provision to the contrary” within the meaning of Section
223-a of the New York Real Property Law, and (d) Landlord represents that the
existing lease of the Unit 15C Space expires on April 30, 2011 and that Landlord
shall not extend such date without Tenant’s consent, and that Landlord, at
Landlord’s expense, shall use reasonable efforts to deliver possession of the
Unit 15C Space and in connection therewith diligently and in good faith
prosecute holdover and any other appropriate proceedings against the occupant
of such space.


8





          SECTION
4.3. The term “Unit 15C Rent Commencement Date” shall mean the day that
is four (4) months after the Unit 15C Space Inclusion Date. (By way of example,
if the Unit 15C Space Inclusion Date shall be May 10, 2011, then the Unit 15B
Rent Commencement Date shall be September 10, 2010).


          SECTION
4.4. With respect to the Unit 15C Space only, Tenant shall pay Fixed Rent (a)
for the period commencing on the Unit 15C Rent Commencement Date and up to and
including March 31, 2012, both dates inclusive, at the annual fixed rental rate
of One Million Seventy Thousand Five Hundred Fifty Five and 00/100 Dollars
($1,070,555.00), payable in equal monthly installments of Eighty Nine Thousand
Two Hundred Twelve and 92/100 Dollars ($89,212.92) in advance at the time and
in the manner provided in the Lease during said period, (b) for the period
commencing April 1, 2012 and up to and including March 31, 2017, both dates
inclusive, at the annual fixed rental rate of One Million One Hundred Sixty One
Thousand Two Hundred Eighty and 00/100 Dollars ($1,161,280.00), payable in
equal monthly installments of Ninety Six Thousand Seven Hundred Seventy Three
and 33/100 Dollars ($96,773.33) in advance at the time and in the manner
provided in the Lease during said period, and (c) for the period commencing
April 1, 2017 and up to and including the Expiration Date, both dates
inclusive, at the annual fixed rental rate of One Million Two Hundred Fifty Two
Thousand Five and 00/100 Dollars ($1,252,005.00), payable in equal monthly
installments of One Hundred Four Thousand Three Hundred Thirty Three and 75/100
Dollars ($104,333.75) in advance at the time and in the manner provided in the
Lease during said period.


          SECTION
4.5. Effective as of the Unit 15C Space Inclusion Date, the Lease shall be
modified and amended, with respect to the Unit 15C Space only, as follows:


          (a) With
respect to the Unit 15C Space only, the term “Base Tax Year” shall mean
the fiscal tax year commencing July 1, 2008 and ending June 30, 2009.


          (b) With
respect to the Unit 15C Space only, the term “Base Operating Year” shall
mean the calendar year ending December 31, 2008.


          (c) With
respect to the Unit 15C Space only, the term “Base Insurance Year” shall
mean the calendar year ending December 31, 2008.


          (d) With
respect to the Unit 15C Space only, the term “Base Energy Year” shall
mean the calendar year ending December 31, 2008.


          (e) With
respect to the Unit 15C Space only, the term “Tenant’s Share” shall mean
1.8814%.


          (f) With
respect to the Unit 15C Space only, the term “Tenant’s Tax Share” shall
mean 1.8274%.


          (g) The
term “Unit 15C Tenant Fund” shall mean Seven Hundred Twenty Five
Thousand Eight Hundred and 00/100 Dollars ($725,800.00).


          SECTION
4.6. Tenant acknowledges that Landlord has made no representations to Tenant
with respect to the Unit 15C Space, except as set forth herein. Tenant hereby
represents


9





that it has made a thorough inspection of the Unit 15C Space and agrees
to take the Unit 15C Space “AS-IS” in the condition existing on the Unit 15C
Space Inclusion Date, and agrees that, notwithstanding anything to the contrary
contained in the Lease, except as expressly provided in this Amendment,
Landlord shall have no obligation to provide any funds or to alter, repair,
improve, decorate or otherwise prepare the same for Tenant’s occupancy, except
that (i) Landlord shall perform the work described on Exhibit “F”
attached hereto and made a part hereof (“Landlord’s Unit 15C Space Work”),
and (ii) the provisions of Section 6.3 of the Lease shall apply to the Unit 15C
Space. Landlord has made and makes no representation as to the date on which it
shall Substantially Complete Landlord’s Unit 15C Space Work and Landlord shall
be under no penalty or liability to Tenant whatsoever by reason of any delay in
such performance. Tenant covenants and agrees that Tenant shall not in any way
interfere with or otherwise hinder Landlord’s performance of Landlord’s Unit
15C Space Work, and shall provide Landlord, and Landlord’s agents, employees,
and contractors access at all times to the Premises during the performance of
Landlord’s Unit 15C Space Work. Landlord, and its employees, agents and
contractors, shall have the right at any time during the performance of
Landlord’s Unit 15C Space Work, without the same constituting an eviction and
without incurring any liability or obligation to Tenant therefor, to enter into
the Premises in order to perform Landlord’s Unit 15C Space Work and any work
which may be incidental or ancillary thereto. Landlord acknowledges and agrees
that, during the performance of Landlord’s Unit 15C Space Work, Landlord shall
continue to provide HVAC service to the portion of the Premises located on the
15th floor of the Building in accordance with, and subject to, the
terms and conditions of the Lease, as amended hereby, except to the extent that
such HVAC service may be temporarily affected in connection with the relocation
and replacement of the existing HVAC units located on the 15th floor
of the Building. Tenant acknowledges and agrees that the performance of
Landlord’s Unit 15C Space Work shall have no effect on the Lease or this
Amendment or Tenant’s obligations thereunder or hereunder nor shall Tenant be
entitled to an abatement of rent or any other compensation in connection
therewith, nor shall the same be deemed an eviction or subject Landlord to any
liability.


          SECTION
4.7. Effective as of the Unit 15C Space Inclusion Date, Section 28.2 of the
Lease shall be modified and amended, with respect to the Unit 15C Space only,
by deleting the phrase “and shall provide 178 tons of aggregate cooling
capacity” therefrom.


          SECTION
4.8. Upon the determination of the Unit 15C Space Inclusion Date and the Unit
15C Rent Commencement Date, as aforesaid, the parties shall within ten (10)
days thereafter, at either party’s request, execute a written agreement
confirming such Dates, which agreement shall be in the form annexed hereto as Exhibit
“I”. Any failure of the parties to execute such written agreement shall not
affect the validity of the Unit 15C Space Inclusion Date or the Unit 15C Rent
Commencement Date.


          SECTION
4.9. Effective as of the Unit 15C Space Inclusion Date, Tenant’s Condenser
Water Allocation, with respect to the Unit 15C Space only, shall be increased
by seven and one-half (7.5) additional tons of condenser water, which Landlord
shall furnish to Tenant’s condenser water cooled supplementary air conditioning
system servicing the Unit 15C Space (if any) in accordance with, and subject
to, the terms and conditions of Section 3.5 of the Lease. Tenant shall pay for
such additional Condenser Water Allocation at the rate and in the manner
provided in the Lease.


10





          SECTION
4.10. Provided that no Event of Default shall have occurred and be continuing
on the date upon which Tenant shall utilize such service, Landlord hereby
agrees that Tenant shall not be charged any overtime fee for (i) the first
fifteen (15) hours of overtime freight elevator service that Tenant utilizes
with respect to Tenant’s performance of the Unit 15C Initial Alterations and
(ii) the first ten (10) hours of overtime freight elevator service that Tenant
utilizes with respect to Tenant’s initial move into the Unit 15C Space for the
conduct of Tenant’s business. Tenant shall make requests for such overtime
freight elevator service from Landlord in accordance with the provisions of
Article 28.1(B) of the Lease, and shall utilize such service in accordance with
Landlord’s Rules and Regulations applicable thereto. For the purposes hereof,
“overtime freight elevator service” shall mean any freight elevator service
utilized by Tenant between the hours of (a) 12:00 P.M. and 2:00 P.M. and (b)
5:00 P.M. and 8:00 A.M. on Business Days or at any time on any other days.


ARTICLE V.

OPERATING EXPENSE ESCALATIONS


          SECTION
5.1. Effective as of the date hereof, Article 27 of the Lease is hereby amended,
with respect to the Unit 15A Space, the Unit 15B Space, the Unit 15C Space and
any 15th Floor Offer Space leased to Tenant pursuant to Article 7 hereof only,
as follows:


          (a) Section
27.1(F)(1) of the Lease is hereby deleted in its entirety and replaced with the
following:


          “(F)(1) “Operating
Expenses” shall mean all costs or expenses incurred for the operation,
management, cleaning, maintenance, repair and upkeep of the Building and the
Property, including, without limitation, the following: (a) all salaries,
wages, fringe benefits, payroll taxes, workmen’s compensation insurance
premiums related thereto, and uniforms and working clothes and the cleaning
thereof, with respect to any employees of Landlord (or the Managing Agent of the
Building) engaged in security, management, operation and maintenance of the
Property (but not above the level of building manager) provided, however, that
if any such expenses are incurred by Landlord for the benefit of any property
other than the Property, such expenses shall be appropriately pro-rated; (b)
all utilities, utility taxes and other costs related to provision of: (i) water
(including sewer charges) provided to the Building and to tenants of the
Building; (ii) other utilities provided to the Building (exclusive of the
amount of reimbursement to Landlord for any of same received as a result of
direct billing to any tenant of the Building) and (iii) costs and expenses
incurred in the rental of music program services and loudspeaker systems; (c) all
costs, including materials, tools, supplies and equipment costs, for providing
cleaning and janitorial services to the Building (including window cleaning of
the Building); (d) intentionally deleted; (e) all costs of maintaining and
repairing the Building and the Property (including, without limitation, removal
of snow, ice, trash and debris, landscaping, security, pest control, operation
and repair of heating and air conditioning equipment, elevators and any other
common Building equipment or systems, and expenses of repair or replacement of
paving, curbs, walkways, landscaping, pipes, ducts, conduits and similar
items), costs and expenses of inspecting and maintaining machinery and
equipment used in the operation and maintenance of the Property, depreciation
of machinery and equipment used in the operation and maintenance of the
Property, and all costs of all structural repairs and replacements (capital or
otherwise), necessary to keep the Building and Property in good working order,
repair, appearance and 


11





condition; (f) any expenditures (capital or otherwise) (A) reasonably
intended to reduce Operating Expenses or that are made in order to comply with
any Requirements enacted after the date hereof or any interpretation, amendment
to, or modification of, an existing Requirement in implementation thereof,
which interpretation, amendment or modification is made, adopted or enacted
after the date hereof, or (B) reasonably intended to increase the security of
the Building and the tenants, occupants and invitees thereof (including without
limitation, any machinery, equipment or systems installed in connection with
the Building Security Procedures); (g) payments under all service, maintenance
or management contracts, including but not limited to elevator maintenance,
window cleaning, security and energy management services; (h) imputed cost
equal to the loss of rent by Landlord for making available to the management
agent space for a Building office for an office not exceeding three thousand
(3,000) rentable square feet in size; (i) reasonable attorney’s fees and
disbursements (exclusive of any such fees and disbursements incurred in tax
abatement proceedings, the preparation or enforcement of leases or disputes
with other tenants in the Building) and reasonable auditing and other
professional fees and expenses; (j) intentionally omitted; (k) all Property
license fees; (1) Building security costs and concierge service, if any; (m)
costs of supplies and materials used in connection with the operation, management,
maintenance and repair of the Building; (n) any local or state surcharges or
special charges; (o) management fees (but not in excess of three percent (3%)
of the aggregate of all Fixed Rents and Escalation Rents and similar income
from the Property per annum, excluding the management fee and excluding
electricity charges with respect to leasable areas of the Building); (p)
computer software, data storage, internet connectivity charges, telephone and
facsimile charges, photocopying, postage, stationery supplied and other
materials and expenses required for the routine operation of the Building; and
(q) the cost of maintaining a messenger center in the Building and an imputed
cost equal to the loss of rent by Landlord for making available such space for
a messenger center not exceeding 2,500 rentable square feet in area and located
below the second (2nd) floor of the Building. The foregoing provision is for
definitional purposes only and shall not be construed to impose any obligation
upon Landlord to incur such Operating Expenses. Landlord may retain independent
contractors (or affiliated contractors at market rates) to provide any services
or perform any work, in which case the costs thereof shall be deemed Operating
Expenses. “Operating Expenses”, however, shall specifically exclude the
following:


	
  

 	
  

 	
  

 
	
  

 	
 (i)

 	
 Energy Expenses;

 
	
  

 	
  

 	
  

 
	
  

 	
 (ii)

 	
 Insurance Expenses;

 
	
  

 	
  

 	
  

 
	
  

 	
 (iii)

 	
 the cost of electricity furnished to the Premises and to other space
 leased to tenants or to other tenantable or leasable areas of the Building;

 
	
  

 	
  

 	
  

 
	
  

 	
 (iv)

 	
 leasing commissions and the following expenses incurred in connection
 with leasing portions of the Building to other tenants: legal fees, rent
 concessions, moving allowances, and work credits and any other expenses in
 connection with procuring tenants;

 
	
  

 	
  

 	
  

 
	
  

 	
 (v)

 	
 salaries and fringe benefits for Landlord’s executives above the
 grade of senior building manager;

 


12









	
  

 	
  

 	
  

 
	
  

 	
 (vi)

 	
 costs otherwise includible in Operating Expenses for which Landlord
 has received reimbursement from insurance (excluding the deductible amount if
 otherwise includible in Operating Expenses hereunder);

 
	
  

 	
  

 	
  

 
	
  

 	
 (vii)

 	
 cost of repairs or replacements incurred by reason of fire or other
 casualty or condemnation, except to the extent of the deductible contained in
 Landlord’s all-risk property insurance policy provided that in no event may
 Landlord include in Operating Expenses for any Operating Year an amount which
 shall exceed fifty cents ($.50) per rentable square foot of the Building by
 reason of any deductible carried by Landlord for any one loss;

 
	
  

 	
  

 	
  

 
	
  

 	
 (viii)

 	
 advertising and promotional expenditures in connection with the
 leasing of rentable areas of the Building and any other costs incurred in
 procuring and retaining tenants, including, but not limited to, lease
 concessions, contributions to tenant work, rental assumption obligations and
 legal fees in connection with lease negotiations and litigation;

 
	
  

 	
  

 	
  

 
	
  

 	
 (ix)

 	
 Taxes and Federal, state, county or municipal income taxes, death
 taxes, excess profit taxes, franchise, estate, recording, succession,
 inheritance, gains, capital stock, excise, occupancy or rent, gift or stamp
 taxes or any other taxes imposed or measured on or by the income or revenue
 of Landlord from the operation of the Building, any transfer or mortgage
 recording taxes, and any interest, penalties or late charges imposed against
 Landlord in connection with the foregoing (provided, however, that sales
 taxes and similar taxes shall be included in Operating Expenses);

 
	
  

 	
  

 	
  

 
	
  

 	
 (x)

 	
 costs for performing work or furnishing services to or for individual
 tenants (including Tenant) or other occupants of the Property, or allowances
 in lieu thereof, including permit, license and inspection fees related to
 such work or services, if such Tenant shall directly reimburse Landlord for
 such work or services other than any such costs which are reimbursed through
 escalation provisions similar in character to those set forth in this Article
 27;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xi)

 	
 the cost of any capital improvement made by Landlord except to the
 extent permitted in connection with Sections 27.1(F)(1)(e) or (f) hereof;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xii)

 	
 depreciation and amortization except as expressly provided above;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xiii)

 	
 debt service on mortgages (i.e., interest and principal payments and
 other debt costs), ground rents, and financing and refinancing costs (and
 costs associated with such financing and refinancing, 

 


13









	
  

 	
  

 	
  

 
	
  

 	
  

 	
 including, without limitation, fees for obtaining approvals from or
 otherwise dealing or negotiating with lenders or providing reports and
 information thereto, and legal fees and disbursements in connection
 therewith) in respect of any mortgage placed on the Property or any portion
 thereof;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xiv)

 	
 amounts paid to affiliates of Landlord in excess of the costs for
 goods or services rendered which would be paid in an arms-length transaction
 absent such affiliation;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xv)

 	
 interest, fines, penalties or other costs to the extent due by reason
 of the late payment of Taxes or other charges which, in either case, have
 been properly billed to Landlord;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xvi)

 	
 lease payments for rented equipment, the cost of which would
 constitute a capital expenditure which is not includible as an Expense if
 such equipment were purchased, provided, however, that if the cost of such
 rented equipment would be includible, if purchased, then the lease payments
 for same shall be included in Expenses to the extent that such purchase cost
 would be amortized pursuant to Sections 27.1(F)(1)(e) or (f) hereof;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xvii)

 	
 the cost of the acquisition or leasing of any works of fine art, other
 than the costs of maintaining, insuring and security for same;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xviii)

 	
 costs for which Landlord is reimbursed under warranties or surety
 bonds (or similar items);

 
	
  

 	
  

 	
  

 
	
  

 	
 (xix)

 	
 any costs incurred in connection with the removal or disposal of
 Hazardous Materials or any claims, losses, damages or expenses relating to
 Hazardous Materials (it being understood however, that the cost of Landlord’s
 maintenance of an asbestos operations and maintenance plan (i.e. a program of
 work practices and preventive maintenance intended to maintain
 asbestos-containing materials in good condition and prevent any release by
 minimizing and controlling asbestos-containing material disturbance or
 damage) may be included in Operating Expenses);

 
	
  

 	
  

 	
  

 
	
  

 	
 (xx)

 	
 all costs and expenses of any special events (e.g., receptions,
 concerts) for which Landlord charges a fee or receives income, or with
 respect to which some tenants of the Building are not entitled to attend or
 participate;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxi)

 	
 legal, bookkeeping, accounting and other professional fees incurred
 in connection with negotiations or disputes by Landlord, its affiliates or
 partners with lenders, superior lessors or tenants or any other occupant of
 the Building, or the filing of a petition in bankruptcy by or against Landlord
 or its Affiliates; and costs 

 


14









	
  

 	
  

 	
  

 
	
  

 	
  

 	
 associated with the operation of the business of the legal entity
 that constitutes Landlord, as the same are separate and apart from the costs
 of the operation, maintenance, repair and tenant services of the Building,
 including, without limitation, the legal entity formation, internal
 accounting and internal legal matters;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxii)

 	
 all costs and expenses resulting directly from the negligence or
 willful misconduct of Landlord, its agents, servants or employees and any
 damages and attorneys’ fees and disbursements and other costs in connection
 with any judgment, settlement or arbitration award resulting from any tort
 liability of Landlord or such other parties (except that the cost of
 performing any repair, alteration or other work which would otherwise be
 includible in Operating Expenses, to the extent included in any such
 judgment, settlement or arbitration award, shall not be excluded hereby);

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxiii)

 	
 costs incurred due to the violation by Landlord or any tenant of the
 Building (1) of the terms of any lease or any laws, rules, regulations or
 ordinances applicable to the Building or (2) of instruments of record
 affecting the Building;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxiv)

 	
 illegal payments;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxv)

 	
 all costs and expenses of providing any above-standard service to any
 tenant or occupant of, or to any leasable space in, the Building, e.g.,
 overtime HVAC, supplemental chilled or condenser water, extra cleaning, or
 overtime elevator service, or any other service (or level or amount of any
 such service) materially in excess of that required by the Lease to be
 provided to Tenant free of separate or additional charge;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxvi)

 	
 all rents and additional rents under any Superior Leases and mortgage
 payments to Mortgagees and costs incurred with respect to the execution or
 modification of any other Superior Lease (including, without limitation, fees
 for obtaining approvals from or otherwise dealing or negotiating with Lessors
 or providing reports and information thereto or thereof and legal fees and
 disbursements in connection therewith);

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxvii)

 	
 costs relating to withdrawal liability or unfunded pension liability
 under the Multi-Employer Pension Plan Act or similar law;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxviii)

 	
 all costs and expenses of taking over or assuming the lease
 obligations of a tenant in another building and the costs and expenses of
 relocating such tenant to the Building, including any payments required to be
 made in connection with the termination of 

 


15









	
  

 	
  

 	
  

 
	
  

 	
  

 	
 a lease pursuant to Article 31-B of the Tax Law of the State of New
 York or other similar statute;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxix)

 	
 any compensation paid to clerks, attendants or other persons in
 commercial concessions operated by Landlord for profit;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxx)

 	
 any costs and operating expenses related to those portions of the
 Building that are leased or leasable for retail, garage or concession
 purposes (other than costs and operating expenses associated with sidewalk
 cleaning and snow and ice removal and the supply of heat to such portions of
 the Building in order to prevent the freezing of pipes during the winter
 season);

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxxi)

 	
 to the extent any costs that are otherwise includable in Operating
 Expenses are incurred by or on behalf of Landlord and any Affiliate of
 Landlord with respect to both the Building and any other buildings owned by
 Landlord or its Affiliate(s), there shall be excluded from Operating Expenses
 a fair and reasonable percentage thereof that is properly allocable to such
 other properties;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxxii)

 	
 the cost of correcting defects in the original construction of
 Landlord’s Work, or in the original construction or installation of any
 Building equipment or Building Systems, or any other facilities located at
 the Building, only to the extent the same are discovered or corrected within twelve
 (12) months from the substantial completion or installation thereof;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxxiii)

 	
 the cost of the construction of any additional space resulting in an
 increase in the rentable square footage of building in or to the Building and
 any costs arising therefrom (including, without limitation, increased Tax
 Payments, Operating Expenses, Energy Expenses and Insurance Expenses);

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxxiv)

 	
 costs incurred with respect to a sale of all or any portion of the
 Building or any interest therein or in any person or entity of whatever tier
 owning an interest therein and the cost of maintaining, organizing or
 reorganizing the entity that is the Landlord under this Lease;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxxv)

 	
 the cost of operating and maintaining special facilities in the
 Building, such as an observatory, broadcasting facility, tourism booth or
 center, theater, auditorium, luncheon club, athletic or recreational club,
 child care or similar facility, cafeteria or dining facility, if any such
 facility is operated by Landlord (unless such facility is made available to
 tenants of the Building generally without charge and Tenant elects to use
 such facilities, in which event such operating and maintenance costs may be
 included in 

 


16









	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Operating Expenses, net of any income collected by Landlord from the
 use of such facilities by tenants and others);

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxxvi)

 	
 any interest, fine, penalty or other late charge payable by Landlord
 or any increase in insurance premium resulting from Landlord’s violation of
 any legal requirements or insurance requirement;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxxvii)

 	
 costs and expenses incurred by Landlord in connection with any
 obligation of Landlord to indemnify any Tenant or other person or entity in
 the Building pursuant to its lease or otherwise;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxxviii)

 	
 Landlord’s contributions or payments to charities, civic
 organizations, and not for profit entities (other than business improvement
 district corporations or quasi-governmental corporations to the extent such
 payments may be properly included in “Taxes” under Section 27.1(I) of this
 Lease);

 
	
  

 	
  

 	
  

 
	
  

 	
 (xxxix)

 	
 any lease payments for equipment which, if purchased, would be
 specifically excluded as a capital improvement to the extent of such
 exclusion;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xl)

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

 
	
  

 	
  

 	
  

 
	
  

 	
 (xli)

 	
 Landlord’s general corporate overhead and general and administrative
 expenses;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xlii)

 	
 costs incurred in connection with services or other benefits of a
 type that are not provided to Tenant but that are provided to another tenant
 or occupant of the Building;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xliii)

 	
 costs for sculptures, paintings and other objects of art located
 within or outside the Building, except only for the costs of maintaining such
 objects in the common areas of the Building;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xliv)

 	
 costs incurred in connection with making any additions to or building
 additional stories on the Building or its plazas, or adding buildings or
 other structures adjoining the Building; and

 
	
  

 	
  

 	
  

 
	
  

 	
 (xlv)

 	
 any other costs not properly includible as Operating Expenses in
 accordance with GAAP.

 


          If during
any Operating Year (including the Base Operating Year) (i) any rentable space
in the Building (other than any retail space in the Building which is not
included in the denominator used to calculate Tenant’s Share) shall be vacant
or unoccupied and/or (ii) the tenant or occupant of any space in the Building
undertook to perform work or services therein in lieu of having such work
performed by or on behalf of Landlord (or such tenant or occupant was not 


17





entitled to receive the same) and the cost thereof would have been
included in Operating Expenses, then, in any such event(s), the Operating
Expenses for such period (including the Base Operating Year) shall be adjusted
to reflect the Operating Expenses that reasonably would have been incurred if
such space had been occupied or if such work or services had been performed by
or on behalf of Landlord, as the case may be. The provisions of this Section 27.1
with respect to adjustments of Operating Expenses for vacancy shall apply only
to Operating Expenses which are variable and which increase in the same
relationship to the increase in occupancy in the Building and shall not apply
to any Operating Expenses which do not vary with the level of occupancy in the
Building. Further, for purposes of calculating the Operating Expenses for the
Base Operating Year, and any subsequent Operating Year, any Operating Expense
that is based on the rent for the Building (by way of example only, a
management fee) shall be calculated, with respect to the Base Operating Year,
as if Tenant paid rent during the free rent period; and, shall be calculated,
with respect to any subsequent Operating Year, as if rent was paid on any leasable
space in the Building, regardless of any vacancy or abatement of rent
applicable to any tenant during such subsequent Operating Year (including
Tenant) of such leasable space, at the actual rental or, if such leasable space
is vacant, such rental shall be deemed to be charged at the rental rate at
which Landlord is then offering to rent such leasable space. Any insurance
proceeds received with respect to any item previously included as an Operating
Expense shall be deducted from Operating Expenses for the Operating Year to
which such proceeds are received; provided, however, to the extent any
insurance proceeds are received by Landlord in any Operating Year with respect
to any item which was included to Operating Expenses during the Base Operating
Year, the amount of insurance proceeds so received shall be deducted from Base
Operating Expenses and (x) the Base Operating Expenses shall be retroactively
adjusted to reflect such deduction and (y) all retroactive Operating Payments
resulting from such retroactive adjustment shall be due and payable when billed
by Landlord.


          (b)
The following subsections 27.7 and 27.8 are hereby added to Article 27 of the
Lease:


	
  

 	
  

 
	
  

 	
           “27.7 (A)
 If the Insurance Expenses (as hereinafter defined) for any calendar year (any
 part or all of which falls within the Term) (each, an “Insurance Year”)
 shall be greater than the Insurance Expenses for the Base Insurance Year
 (hereinafter called the “Base Insurance Expenses”), then Tenant shall
 pay as additional rent for such Insurance Year and continuing thereafter
 until a new Insurance Statement (as hereinafter defined) is rendered to
 Tenant, Tenant’s Share of such increase (the “Insurance Payment”) as
 hereinafter provided.

 
	
  

 	
  

 
	
  

 	
           (B) “Insurance
 Expenses” shall mean all insurance premiums and deductible amounts,
 including, without limitation, for commercial general liability insurance,
 fire, casualty, “all risks” property, terrorism, rent loss, worker’s
 compensation and other coverages (provided such other coverages are generally
 maintained by owners of Comparable Buildings) carried by Landlord on or with
 respect to the Building. Insurance Expenses shall not include any increases
 in Insurance Expenses resulting from (i) Landlord’s knowing violation of
 legal requirements or late payments of any insurance premium, (ii) the acts
 of other tenants for which Landlord is entitled to be reimbursed, or (iii)
 the construction of any additional space resulting in an increase in the
 rentable square footage of the Building. “Insurance Statement” shall
 mean a

 


18









	
  

 	
  

 
	
  

 	
 statement setting forth a comparison of the Insurance Expenses for an
 Insurance Year with the Base Insurance Expenses pursuant to the provisions of
 this Article 27.

 
	
  

 	
  

 
	
  

 	
           (C) (1)
 Landlord may give Tenant a written statement for each Insurance Year setting
 forth Landlord’s reasonable estimate of the Insurance Payment for such
 Insurance Year (“Landlord’s Insurance Estimate”).

 
	
  

 	
  

 
	
  

 	
           (2)
 Tenant shall pay Landlord an amount equal to one-twelfth (1/12) of Landlord’s
 Insurance Estimate on the first day of each and every month during the
 Insurance Year (provided, however, that if Landlord’s Insurance Estimate
 shall exceed the actual Insurance Expenses for the preceding year by more
 than seven percent (7%), then Tenant shall not be obligated to pay such
 excess at such time unless such excess is attributable to estimated increases
 in Insurance Expenses reasonably known to Landlord and of which Tenant shall
 have been notified). If Landlord delivers Landlord’s Insurance Estimate after
 an Insurance Year begins then: (a) until the first day of the month after the
 month in which Tenant receives Landlord’s Insurance Estimate, Tenant shall
 pay Landlord an amount equal to the monthly sum payable by Tenant under this
 Section for the last month of the preceding Insurance Year; and on the first
 day of the month following the month in which Tenant receives Landlord’s
 Insurance Estimate (and monthly thereafter for the balance of such Insurance
 Year), Tenant shall pay Landlord an amount equal to one twelfth (1/12) of
 Landlord’s Insurance Estimate. If Tenant’s previous payments for the
 Insurance Year were more or less than the amounts which Tenant should have
 paid pursuant to Landlord’s Insurance Estimate, Tenant shall pay any underpayment
 within ten (10) days after receiving Landlord’s Insurance Estimate, or Tenant
 shall receive a credit for any overpayment against subsequent payments.
 Landlord may revise Landlord’s Insurance Estimate for a particular Insurance
 Year (but not more often than three times as to any Insurance Year). In such
 event, the Insurance Payment for such Insurance Year shall be adjusted and
 paid or credited, as applicable, as specified in this Section 27.7.

 
	
  

 	
  

 
	
  

 	
           (D) At
 any time during or after the Term Landlord may render to Tenant an Insurance
 Statement or Statements showing (i) a comparison of the Insurance Expenses
 for the Insurance Year in question with the Base Insurance Expenses, and (ii)
 the amount of the Insurance Payment resulting from such comparison.
 Landlord’s failure to render an Insurance Statement during or with respect to
 any Insurance Year in question shall not prejudice Landlord’s right to render
 an Insurance Statement during or with respect to any subsequent Insurance
 Year, and shall not eliminate or reduce Tenant’s obligation to make payments
 of the Insurance Payment pursuant to this Article 27 for such Insurance Year,
 except as provided in the next succeeding sentence. Tenant’s obligation to
 pay any such deficiency shall survive the expiration of an Insurance Year for
 a period of twenty-four (24) months after the end of such Insurance Year. In
 the event Landlord shall render such Insurance Statement, as provided in this
 Article, Tenant shall pay to Landlord any deficiency set forth on such
 statement within thirty (30) days of the rendering of such Insurance
 Statement by Landlord.

 
	
  

 	
  

 
	
  

 	
           (E) After
 the end of each Insurance Year Landlord shall submit to Tenant an Insurance
 Statement prepared by Landlord and certified by Landlord as being accurate to
 

 


19









	
  

 	
  

 
	
  

 	
 the knowledge of Landlord and consistent with the terms of this
 Lease, setting forth a comparison of the Insurance Expenses for the preceding
 Insurance Year with the Base Insurance Expenses and the Insurance Payments
 paid by Tenant with respect to such preceding Insurance Year pursuant to the
 provisions of this Article 27 and the balance of any Insurance Payment due
 from Tenant with respect to such preceding Insurance Year. Upon Tenant’s
 request, Landlord shall provide to Tenant a reasonably detailed breakdown of
 the major categories of expenses reflected in the Insurance Statement
 furnished to Tenant under this Section. If Tenant’s Insurance Payments under
 Section 27.7(C)(2) have exceeded the Insurance Payment due with respect to
 the preceding Insurance Year, Tenant shall receive a credit for such excess
 against-subsequent payments under this Section 27.7, 27.4 or 27.8. If
 Tenant’s Insurance Payments under Section 27.7(C)(2) were less than Insurance
 Payment due with respect to the preceding Insurance Year, Tenant shall pay
 Landlord such deficiency within thirty (30) days after receipt of the
 Insurance Statement.. Any Insurance Payment shall be collectible by Landlord
 in the same manner as Fixed Rent.

 
	
  

 	
  

 
	
  

 	
           (F) Each
 Insurance Statement delivered to Tenant shall be conclusively binding upon
 Tenant unless, within one hundred eighty (180) days after such Statement is
 sent to Tenant, Tenant shall send a written notice to Landlord objecting to
 such Statement. If such notice is sent, Tenant (together with its independent
 certified public accountant, (who may be an employee of Tenant), which is not
 being compensated, in whole or in part, on a contingency basis) may examine
 Landlord’s books and records relating to the Insurance Expenses to determine
 the accuracy of the Insurance Statement. At the time Tenant first elects to
 review Landlord’s books and records relating to an Insurance Statement for
 any Insurance Year, Tenant may also elect to review Landlord’s books and
 records relative to the Base Insurance Expenses, provided that such review
 must be completed within sixty (60) days after Landlord first permits Tenant
 and its representatives access to Landlord’s books and records. Landlord
 shall make all books and records relative to the subject Insurance Expenses
 and, solely with respect to the time that Tenant first elects to review
 Landlord’s books and records, the Base Insurance Expenses, available to
 Tenant in connection with such review promptly after Tenant’s request and on a
 continuous basis during Business Hours on Business Days if requested by
 Tenant or its representatives. Tenant recognizes the confidential nature of
 such books and records and agrees to maintain the information obtained from
 such examination in confidence. If after such examination, Tenant disputes
 such Insurance Statement, Tenant shall give Landlord notice (the “Insurance
 Dispute Notice”) that Tenant disputes the correctness of the Insurance
 Statement the parties shall meet in good faith and attempt to resolve their
 dispute and Tenant shall give Landlord reasonable opportunity to substantiate
 the accuracy of the Statement being disputed by Tenant. If Landlord and
 Tenant do not agree to resolve any dispute with respect to Tenant’s written
 exception within thirty (30) days after Tenant’s Insurance Dispute Notice
 shall have been given to Landlord, the parties shall submit the dispute to
 binding arbitration before a reputable firm of independent CPA’s chosen
 jointly by Landlord and Tenant to be paid for equally by Landlord and Tenant
 except that if the arbitrator’s award finds that Landlord overstated
 Insurance Expenses payable by Tenant by more than four and one-half percent
 (4.5%), then Landlord shall be responsible for the fees of the arbitrator and
 the reasonable 

 


20











	
  

 	
  

 
	
  

 	
 charges incurred by Tenant to audit Landlord’s books and records
 (exclusive of any legal fees and disbursements, if any, incurred by Tenant,
 which shall be borne by Tenant). Tenant agrees that, notwithstanding any such
 dispute (and pending resolution thereof), Tenant shall timely pay to Landlord
 in full the amount shown to be due to Landlord on the disputed Insurance
 Statement. If, in the resolution of such dispute it shall be determined that
 Tenant shall have made an overpayment, Landlord shall, (i) within thirty (30)
 days after resolution of such dispute, refund to Tenant the amount of
 Tenant’s overpayment and (ii) if the arbitrator fords that Landlord
 overstated Insurance Expenses payable by Tenant by more than four and
 one-half percent (4.5%), within thirty (30) days after rendition of a bill
 therefor, reimburse Tenant for the reasonable charges incurred by Tenant to
 audit Landlord’s books and records (exclusive of any legal fees and
 disbursements, if any, incurred by Tenant, which shall be borne by Tenant).
 If Landlord fails to refund such overpayment and/or reimburse such charges to
 Tenant within such thirty (30) day periods, as applicable, Tenant shall have
 the right after not less than ten (10) Business Day’s notice to Landlord, to
 offset against Insurance Expenses, the amount of such overpayment and the
 amount of such charges with interest at the Applicable Rate from the dates
 such overpayment and the amount of such charges were paid by Tenant until
 fully recovered by Tenant. If the resolution of such dispute shall include a
 determination that Tenant has made an underpayment in any Insurance Expense
 payment, then Tenant shall pay to Landlord the amount of any such
 underpayment within thirty (30) days after resolution of such dispute.

 
	
  

 	
  

 
	
  

 	
           (G) The
 expiration or termination of this Lease during any Insurance Year shall not
 affect the rights or obligations of the parties hereto respecting any
 payments of Insurance Payments for such Insurance Year, and any Insurance
 Statement relating to such Insurance Payment may be sent to Tenant subsequent
 to, and all such rights and obligations shall survive, any such expiration or
 termination, except to the extent otherwise provided in this Section 27.7. In
 determining the amount of the Insurance Payment for the Insurance Year in
 which the Term shall expire, the payment of the Insurance Payment for such
 Insurance Year shall be prorated based on the number of days of the Term
 which fall within such Insurance Year. Any payments due under such Insurance
 Statement shall be payable within thirty (30) days after such Statement is
 sent to Tenant.

 
	
  

 	
  

 
	
  

 	
           27.8 (A)
 If the Energy Expenses (as hereinafter defined) for any calendar year (any
 part or all of which falls within the Term) (each, an “Energy Year”)
 shall be greater than the Energy Expenses for the Base Energy Year
 (hereinafter called the “Base Energy Expenses”), then Tenant shall pay
 as additional rent for such Energy Year and continuing thereafter until a new
 Energy Statement (as hereinafter defined) is rendered to Tenant, Tenant’s
 Share of such increase (the “Energy Payment”) as hereinafter provided.

 
	
  

 	
  

 
	
  

 	
           (B) “Energy
 Expenses” shall mean the sum of (i) the amount Landlord pays to the
 applicable utility companies to provide gas, oil, steam, electricity, heat,
 ventilation and air-conditioning to the Building, including all applicable
 surcharges, demand charges, time-of-day charges, energy charges, fuel
 adjustment charges, rate adjustment charges, taxes and other sums payable in
 respect thereof and net of any rebates or credits actually received by
 Landlord in respect of such utilities supplied to the Building, less the cost
 of 

 


21









	
  

 	
  

 
	
  

 	
 gas, oil, steam, electricity, heat, ventilation and/or
 air-conditioning to the Building consumed by and billed to Tenant or any
 other tenants of the Building (either on a rent inclusion, submetering or
 direct basis) in connection with space leased by such parties (other than in
 the nature of additional rent consisting of operating expenses or energy expense
 escalations). In determining the amount of Energy Expenses for any Energy
 Year (including the Base Energy Year), if less than ninety-five percent (95%)
 of the Building rentable area shall have been occupied by tenant(s) at any
 time during any such Energy Year, those components of Energy Expenses which
 vary based on occupancy shall be determined for such Energy Year to be an
 amount equal to the like expenses which would normally be expected to be
 incurred had ninety-five percent (95%) of the rentable area of the Building
 been occupied throughout such Energy Year. Until such time as the electricity
 supplied to each floor of the Building and the common and public areas of the
 Building (including, without limitation, the Building Systems) shall be
 separately metered or submetered, Energy Expenses shall include an amount
 equal to (x) (i) Landlord’s cost (utilizing the electrical rates applicable
 to the Building including energy charges, demand charges, time-of-day
 charges, fuel adjustment charges, rate adjustment charges, sales tax and any
 other factors used by the public utility in computing its charges to
 Landlord) of furnishing electric current to the entire Building, multiplied
 by (ii) the number of kilowatt hours of electric current furnished to the public
 and common areas of the Building (including, without limitation, the Building
 Systems) and other areas not available for occupancy as determined by a
 survey prepared by an independent, reputable electrical engineer selected by
 Landlord, plus (y) Landlord’s actual reasonable out-of-pocket costs in
 connection therewith. Energy Expenses shall not include any increases in
 Energy Expenses resulting from (i) Landlord’s knowing violation of legal
 requirements or late payments to the applicable utility companies or (ii) the
 construction of any additional space resulting in an increase in the rentable
 square footage of the Building. “Energy Statement” shall mean a
 statement setting forth a comparison of the Energy Expenses for an Energy
 Year with the Base Energy Expenses pursuant to the provisions of this Article
 27.

 
	
  

 	
  

 
	
  

 	
           (C) (1)
 Landlord may give Tenant a written statement for each Energy Year setting
 forth Landlord’s reasonable estimate of the Energy Payment for such Energy
 Year (“Landlord’s Energy Estimate”).

 
	
  

 	
  

 
	
  

 	
           (2)
 Tenant shall pay Landlord an amount equal to one-twelfth (1/12) of Landlord’s
 Energy Estimate on the first day of each and every month during the Energy
 Year (provided, however, that if Landlord’s Energy Estimate shall exceed the
 actual Energy Expenses for the preceding year by more than seven percent
 (7%), then Tenant shall not be obligated to pay such excess at such time
 unless such excess is attributable to estimated increases in Energy Expenses
 reasonably known to Landlord and of which Tenant shall have been notified).
 If Landlord delivers Landlord’s Energy Estimate after an Energy Year begins
 then: (a) until the first day of the month after the month in which Tenant
 receives Landlord’s Energy Estimate, Tenant shall pay Landlord an amount
 equal to the monthly sum payable by Tenant under this Section for the last
 month of the preceding Energy Year; and on the first day of the month
 following the month in which 

 


22








Tenant receives Landlords Energy Estimate (and monthly thereafter for
the balance of such Energy Year), Tenant shall pay Landlord an amount equal to
one twelfth (1/12) of Landlord’s Energy Estimate. If Tenant’s previous payments
for the Energy Year were more or less than the amounts which Tenant should have
paid pursuant to Landlord’s Energy Estimate, Tenant shall pay any underpayment
within ten (10) days after receiving Landlord’s Energy Estimate, or Tenant
shall receive a credit for any overpayment against subsequent payments.
Landlord may revise Landlord’s Energy Estimate for a particular Energy Year
(but not more often than three times as to any Energy Year). In such event, the
Energy Payment for such Energy Year shall be adjusted and paid or credited, as
applicable, as specified in this Section 27.8. 


          (D) At any
time during or after the Term Landlord may render to Tenant an Energy Statement
or Statements showing (i) a comparison of the Energy Expenses for the Energy
Year in question with the Base Energy Expenses, and (ii) the amount of the
Energy Payment resulting from such comparison. Landlord’s failure to render an
Energy Statement during or with respect to any Energy Year in question shall
not prejudice Landlord’s right to render an Energy Statement during or with
respect to any subsequent Energy Year, and shall not eliminate or reduce
Tenant’s obligation to make payments of the Energy Payment pursuant to this
Article 27 for such Energy Year, except as provided in the next succeeding
sentence. Tenant’s obligation to pay any such deficiency shall survive the
expiration of an Energy Year for a period of twenty-four (24) months after the
end of such Energy Year. In the event Landlord shall render such Energy
Statement, as provided in this Article, Tenant shall pay to Landlord any
deficiency set forth on such statement within thirty (30) days of the rendering
of such Energy Statement by Landlord. 


          (E) After
the end of each Energy Year Landlord shall submit to Tenant an Energy Statement
prepared by Landlord and certified by Landlord as being accurate to the
knowledge of Landlord and consistent with the terms of this Lease, setting
forth a comparison of the Energy Expenses for the preceding Energy Year with
the Base Energy Expenses and the Energy Payments paid by Tenant with respect to
such preceding Energy Year pursuant to the provisions of this Article 27 and
the balance of any Energy Payment due from Tenant with respect to such
preceding Energy Year. Upon Tenant’s request, Landlord shall provide to Tenant
a reasonably detailed breakdown of the major categories of expenses reflected
in the Energy Statement furnished to Tenant under this Section. If Tenant’s
Energy Payments under Section 27.8(C)(2) have exceeded the Energy Payment due
with respect to the preceding Energy Year, Tenant shall receive a credit for
such excess against subsequent payments under this Section 27.8, Section 27.4
or Section 27.7. If Tenant’s Energy Payments under Section 27.8(C)(2) were less
than Energy Payments due with respect to the preceding Energy Year, Tenant
shall pay Landlord such deficiency within thirty (30) days after receipt of the
Energy Statement. Any Energy Payment shall be collectible by Landlord in the
same manner as Fixed Rent. 


          (F) Each
Energy Statement delivered to Tenant shall be conclusively binding upon Tenant
unless, within one hundred eighty (180) days after such Statement is sent to
Tenant, Tenant shall send a written notice to Landlord objecting to such
Statement. If such notice is sent, Tenant (together with its independent
certified public accountant, 





23







(who may be an employee of Tenant), which is not being compensated, in
whole or in part, on a contingency basis) may examine Landlord’s books and
records relating to the Energy Expenses to determine the accuracy of the Energy
Statement. At the time Tenant first elects to review Landlord’s books and
records relating to an Energy Statement for any Energy Year, Tenant may also
elect to review Landlord’s books and records relative to the Base Energy
Expenses, provided that such review must be completed within sixty (60) days
after Landlord first permits Tenant and its representatives access to
Landlord’s books and records. Landlord shall make all books and records
relative to the subject Energy Expenses and, solely with respect to the time
that Tenant first elects to review Landlord’s books and records, the Base
Energy Expenses, available to Tenant in connection with such review promptly
after Tenant’s request and on a continuous basis during Business Hours on
Business Days if requested by Tenant or its representatives. Tenant recognizes
the confidential nature of such books and records and agrees to maintain the
information obtained from such examination in confidence. If after such examination,
Tenant disputes such Energy Statement, Tenant shall give Landlord notice (the
“Energy Dispute Notice”) that Tenant disputes the correctness of the Energy
Statement the parties shall meet in good faith and attempt to resolve their
dispute and Tenant shall give Landlord reasonable opportunity to substantiate
the accuracy of the Statement being disputed by Tenant. If Landlord and Tenant
do not agree to resolve any dispute with respect to Tenant’s written exception
within thirty (30) days after Tenant’s Energy Dispute Notice shall have been
given to Landlord, the parties shall submit the dispute to binding arbitration
before a reputable firm of independent CPA’s chosen jointly by Landlord and
Tenant to be paid for equally by Landlord and Tenant except that if the
arbitrator’s award finds that Landlord overstated Energy Expenses payable by
Tenant by more than four and one-half percent (4.5%), then Landlord shall be
responsible for the fees of the arbitrator and the reasonable charges incurred
by Tenant to audit Landlord’s books and records (exclusive of any legal fees
and disbursements, if any, incurred by Tenant, which shall be borne by Tenant).
Tenant agrees that, notwithstanding any such dispute (and pending resolution
thereof), Tenant shall timely pay to Landlord in full the amount shown to be
due to Landlord on the disputed Energy Statement. If, in the resolution of such
dispute it shall be determined that Tenant shall have made an overpayment,
Landlord shall, (i) within thirty (30) days after resolution of such dispute,
refund to Tenant the amount of Tenant’s overpayment and (ii) if the arbitrator
finds that Landlord overstated Energy Expenses payable by Tenant by more than
four and one-half percent (4.5%), within thirty (30) days after rendition of a bill
therefor, reimburse Tenant for the reasonable charges incurred by Tenant to
audit Landlord’s books and records (exclusive of any legal fees and
disbursements, if any, incurred by Tenant, which shall be borne by Tenant). If
Landlord fails to refund such overpayment and/or reimburse such charges to
Tenant within such thirty (30) day periods, as applicable, Tenant shall have
the right after not less than ten (10) Business Day’s notice to Landlord, to
offset against Energy Expenses, the amount of such overpayment and the amount
of such charges with interest at the Applicable Rate from the dates such
overpayment and the amount of such charges were paid by Tenant until fully
recovered by Tenant. If the resolution of such dispute shall include a
determination that Tenant has made an underpayment in any Energy Expense
payment, then Tenant shall pay to Landlord the amount of any such underpayment
within thirty (30) days after resolution of such dispute.  





24









	
  

 	
  

 
	
  

 	
           (G) The
 expiration or termination of this Lease during any Energy Year shall not
 affect the rights or obligations of the parties hereto respecting any
 payments of Energy Payments for such Energy Year, and any Energy Statement
 relating to such Energy Payment may be sent to Tenant subsequent to, and all
 such rights and obligations shall survive, any such expiration or
 termination, except to the extent otherwise provided in this Section 27.8. In
 determining the amount of the Energy Payment for the Energy Year in which the
 Term shall expire, the payment of the Energy Payment for such Energy Year
 shall be prorated based on the number of days of the Term which fall within
 such Energy Year. Any payments due under such Energy Statement shall be
 payable within thirty (30) days after such Statement is sent to Tenant.” 

 


          (c) The
term “Escalation Rent” as used herein and in the Lease shall mean, individually
or collectively, the Tax Payment, the Operating Payment, the Insurance Payment
and the Energy Payment, each as defined and provided in Article 27 of the
Lease. 


          SECTION
5.2. Effective as of the date hereof, Section 41.1 of the Lease shall be
amended by (i) deleting the phrase “(v) Base Year for Operating Expenses” and
substituting the phrase “(v) the Base Operating Year, Base Insurance Year and
Base Energy Year (as applicable)” therefor, and (ii) inserting the phrase
“(including, without limitation, any differences between (a) the manner in
which Escalation Rent is calculated for those portions of the Premises located
on the 15th floor of the Building and (b) the manner in which Escalation Rent
is calculated for the remainder of the Premises)” immediately after the phrase
“and all other relevant factors”. 


ARTICLE VI. 

15TH FLOOR TENANT FUND


          SECTION
6.1. Commencing on the Unit 15A Space Inclusion Date, Landlord shall contribute
an amount not to exceed the Unit 15A Tenant Fund toward (i) the cost (other
than Unit 15A FFE Costs and/or Unit 15A Soft Costs) of the performance of
certain Alterations to be performed by Tenant in order to prepare the Unit 15A
Space for Tenant’s occupancy (the “Unit 15A Initial Alterations”), (ii)
the cost of FFE for the Unit 15A Space (the costs described in this clause (ii)
being collectively referred to herein as “Unit 15A FFE Costs”), and
(iii) the fees of architects, engineers, expediters and consultants incurred in
connection with the performance of the Unit 15A Initial Alterations and the
purchase of such FFE (the costs described in this clause (iii) being
collectively referred to herein as “Unit 15A Soft Costs”).
Notwithstanding anything to the contrary provided herein; (i) Tenant shall not
be entitled to receive a portion of the Unit 15A Tenant Fund for Unit 15A FFE
Costs and/or Unit 15A Soft Costs earlier than the Unit 15A Space Inclusion
Date; and (ii) Landlord shall not be required to contribute toward Unit 15A FFE
Costs and Unit 15A Soft Costs an amount which is, in the aggregate, in excess
of 25% of the Unit 15A Tenant Fund (of which, not more than 10% shall be
contributed to Unit 15A FFE Costs). Landlord shall disburse the Unit 15A Tenant
Fund in accordance with and subject to the provisions of this Section 6.1. 


          (a)
Commencing on the Unit 15A Space Inclusion Date, Tenant may make monthly
requests from the Unit 15A Tenant Fund for the portion of Tenant’s Unit 15A
Initial Alterations 


25





and Unit 15A FFE Costs and Unit 15A Soft Costs paid or incurred by
Tenant with respect to the immediately preceding month. Landlord shall disburse
a portion of the Unit 15A Tenant Fund to Tenant from time to time, within
twenty-five (25) days after receipt of the items set forth in Section 6.1(b)
hereof, provided that such request is received by Landlord by the tenth (10th)
day of the calendar month in which Landlord receives such request; and further
provided that on the date of disbursement from the Unit 15A Tenant Fund, no
Event of Default under the Lease, as amended hereby, shall have occurred and be
continuing. Disbursements from the Unit 15A Tenant Fund shall not be made more
frequently than monthly, and shall be in an amount equal to the amount which is
then due Tenant’s contractors (as certified by a duly authorized officer of
Tenant and by Tenant’s independent, licensed architect) and which has not been
the subject of a previous disbursement from the Unit 15A Tenant Fund, after
first deducting retainage equal to ten percent (10%) of the entire amount then
due (provided, however, that no retainage shall be withheld in respect of Unit
15A Soft Costs). Notwithstanding the foregoing, if Tenant’s contract with the
contractor shall have provided for Tenant to withhold 10% retainage, then
Landlord shall disburse the full amount due such contractor set forth in its
requisition (with the result being that Landlord shall hold such 10%
retainage). (By way of example, assuming that Tenant’s contract with a
contractor provides for 10% retainage and, in connection with a request for a
disbursement from the Unit 15A Tenant Fund, the contractor has performed $100
of work covered by such request and is therefore then due $90.00, Landlord
shall pay the $90.00 due to such contractor and retain $10.00 as retainage in
accordance with this Section). Unless Tenant shall, have previously paid
Tenant’s contractor the sums requested from the Unit 15A Tenant Fund, Tenant
shall promptly pay any such sums disbursed from the Unit 15A Tenant Fund to
Tenant’s contractors or to such other vendors as shall be entitled thereto.
Landlord shall pay to Tenant the balance of all such retainage then withheld by
Landlord within thirty (30) days after completion of the Unit 15A Initial
Alterations. Similarly, Tenant shall pay the balance of all retainage then
withheld by Tenant when due under the respective agreements pertaining thereto
and provide Landlord with evidence of such payment. If Landlord in good faith
believes it is not obligated to make a requested disbursement from the Unit 15A
Tenant Fund, Landlord may (subject to the provisions set forth below,
including, without limitation, the right to arbitrate such dispute) withhold
such disbursement, provided it shall provide Tenant within twelve (12) Business
Days after receipt of Tenant’s request for disbursement with a Disbursement
Dispute Notice. If Landlord provides Tenant with a Disbursement Dispute Notice,
then Tenant and Landlord shall endeavor to resolve such dispute within the next
ten (10) Business Days and thereafter (if the Landlord has still not paid such
portion of the Unit 15A Tenant Fund) Tenant may submit to arbitration (in
accordance with Section 38.7 of the Lease) the issue of Landlord’s obligation
to make the disbursement in question. If Tenant obtains an arbitration decision
that Landlord was obligated to pay all or any portion of the requested
disbursement (or if the Landlord subsequently concedes that such amount is due,
with or without an arbitration), Landlord shall within ten (10) Business Days
of such decision pay such amount to Tenant, together with interest at the
Applicable Rate from the date such amounts were due until the date paid. To the
extent that Landlord fails to pay such amount within such ten (10) Business Day
period, then Tenant shall have the right to offset any such amounts, together
with interest at the Applicable Rate from the date such amount shall have been
paid until the date of offset, against the next ensuing Rents payable
hereunder. 


          (b)
Landlord’s obligation to make disbursements from the Unit 15A Tenant Fund shall
be subject to the receipt of: (i) a request for such disbursement from Tenant,
together with the 


26





certification required by Section 6.1(a) hereof, (ii) copies of all
receipts, invoices and bills for the work completed and materials furnished in
connection with the Unit 15A Initial Alterations, or with respect to Unit 15A
FFE Costs and/or Unit 15A Soft Costs which, in either case, have been paid by
Tenant or which are then due and for which Tenant is seeking reimbursement,
(iii) with respect to disbursements of the Unit 15A Tenant Fund to cover costs
other than Unit 15A FFE Costs and/or Unit 15A Soft Costs, a certificate of
Tenant’s independent licensed architect on Standard AIA form G-702 (or such
other form as is reasonably approved by Landlord) stating (A) that, in such
architect’s opinion, the portion of the Unit 15A Initial Alterations
theretofore completed and for which the disbursement is requested was performed
in a good and workerlike manner substantially in accordance with the final
detailed plans and specifications for such Unit 15A Initial Alterations, as
approved (or deemed approved) by Landlord, (B) the percentage of completion of
such Unit 15A Initial Alterations as of the date of such certificate, and (C)
the estimated total cost to complete the performance of such Unit 15A Initial
Alterations, and (iv) with the exception of the first request for a disbursement
from the Unit 15A Tenant Fund, partial lien waivers from each contractor,
subcontractor and materialman (who performed work or supplied materials in
excess of $10,000 either individually or in the aggregate) involved in the
performance of the Unit 15A Initial Alterations relating to the portion of the
Unit 15A Initial Alterations theretofore performed and materials theretofore
provided and for which previous disbursements and/or the requested disbursement
has been or is to be made. Notwithstanding the foregoing, to the extent that
any requisition from the Unit 15A Tenant Fund shall be intended to reimburse
Tenant for any Unit 15A FFE Costs, Tenant shall: (i) deliver a statement,
certified by an officer of Tenant accurately describing the Unit 15A FFE Costs for
which payment is being requested and setting forth the amount of the
disbursement from the Tenant Fund being requested and attributable to FFE; (ii)
deliver copies of invoices or bills of sale; and (iii) if such FFE is stored
away from the Unit 15A Space, identify the location of the off-premises
storage. 


          (c) In no
event shall the aggregate amount paid by Landlord to Tenant under this Section
6.1 exceed the amount of the Unit 15A Tenant Fund. Upon the completion of the
Unit 15A Initial Alterations and satisfaction of the conditions set forth in
Section 6.1(d) hereof, any amount of the Unit 15A Tenant Fund which has not
been previously disbursed shall be retained by Landlord. Upon the disbursement
of the entire Unit 15A Tenant Fund (or the portion thereof if upon completion
of the Unit 15A Initial Alterations the Unit 15A Tenant Fund is not exhausted),
Landlord shall have no further obligation or liability whatsoever to Tenant for
further disbursement of any portion of the Unit 15A Tenant Fund to Tenant.
Tenant shall not be entitled to any payment or credit on account of the excess.
It is expressly understood and agreed that Tenant shall complete, at its sole
cost and expense, the Unit 15A Initial Alterations and pay all Unit 15A FFE
Costs and/or Unit 15A Soft Costs, whether or not the Unit 15A Tenant Fund is
sufficient to fund the completion of such Unit 15A Initial Alterations and Unit
15A FFE Costs and/or Unit 15A Soft Costs. 


          (d) Within
thirty (30) days after completion of the Unit 15A Initial Alterations, Tenant
shall deliver to Landlord (x) final waivers of lien from all contractors,
subcontractors and materialmen involved in the performance of the Unit 15A
Initial Alterations, (y) a certificate from Tenant’s independent licensed architect
certifying that, in his or her opinion, such Unit 15A Initial Alterations have
been performed in a good and workerlike manner and completed substantially in
accordance with the final detailed plans and specifications for such Unit 15A
Initial Alterations as approved by Landlord, and (z) a certificate from Tenant
certifying that that 


27





all contractors, subcontractors and materialmen have been paid for the
Unit 15A Initial Alterations and materials furnished through such date. 


          (e) Notwithstanding
anything to the contrary in this Section 6.1, if Tenant has not submitted
requests for disbursement of the entire Unit 15A Tenant Fund in accordance with
the provisions of this Section 6.1 prior to the third anniversary of the Unit
15A Space Inclusion Date, any portion of the Unit 15A Tenant Fund not
previously disbursed shall be retained by Landlord, and Landlord shall have no
further obligation to disburse any portion of the Unit 15A Tenant Fund, it
being understood that Tenant shall not be entitled to a credit, abatement or
other concession on account thereof. 


          SECTION
6.2. Commencing on the Unit 15B Space Inclusion Date, Landlord shall contribute
an amount not to exceed the Unit 15B Tenant Fund toward (i) the cost (other
than Unit 15B FFE Costs and/or Unit 15B Soft Costs) of the performance of
certain Alterations to be performed by Tenant in order to prepare the Unit 15B
Space for Tenant’s occupancy (the “Unit 15B Initial Alterations”), (ii)
the cost of FFE for the Unit 15B Space (the costs described in this clause (ii)
being collectively referred to herein as “Unit 15B FFE Costs”), and
(iii) the fees of architects, engineers, expediters and consultants incurred in
connection with the performance of the Unit 15B Initial Alterations and the
purchase of such FFE (the costs described in this clause (iii) being
collectively referred to herein as “Unit 15B Soft Costs”).
Notwithstanding anything to the contrary provided herein, (i) Tenant shall not
be entitled to receive a portion of the Unit 15B Tenant Fund for Unit 15B FFE
Costs and/or Unit 15B Soft Costs earlier than the Unit 15B Space Inclusion
Date; and (ii) Landlord shall not be required to contribute toward Unit 15B FFE
Costs and Unit 15B Soft Costs an amount which is, in the aggregate, in excess
of 25% of the Unit 15B Tenant Fund (of which, not more than 10% shall be
contributed to Unit 15B FFE Costs). Landlord shall disburse the Unit 15B Tenant
Fund in accordance with and subject to the provisions of this Section 6.2. 


          (a) Commencing
on the Unit 15B Space Inclusion Date, Tenant may make monthly requests from the
Unit 15B Tenant Fund for the portion of Tenant’s Unit 15B Initial Alterations
and Unit 15B FFE Costs and Unit 15B Soft Costs paid or incurred by Tenant with
respect to the immediately preceding month. Landlord shall disburse a portion
of the Unit 15B Tenant Fund to Tenant from time to time, within twenty-five
(25) days after receipt of the items set forth in Section 6.2(b) hereof,
provided that such request is received by Landlord by the tenth (10th) day of
the calendar month in which Landlord receives such request; and further
provided that on the date of disbursement from the Unit 15B Tenant Fund, no
Event of Default under the Lease, as amended hereby, shall have occurred and be
continuing. Disbursements from the Unit 15B Tenant Fund shall not be made more
frequently than monthly, and shall be in an amount equal to the amount which is
then due Tenant’s contractors (as certified by a duly authorized officer of
Tenant and by Tenant’s independent, licensed architect) and which has not been
the subject of a previous disbursement from the Unit 15B Tenant Fund, after
first deducting retainage equal to ten percent (10%) of the entire amount then
due (provided, however, that no retainage shall be withheld in respect of Unit
15B Soft Costs). Notwithstanding the foregoing, if Tenant’s contract with the
contractor shall have provided for Tenant to withhold 10% retainage, then
Landlord shall disburse the full amount due such contractor set forth in its
requisition (with the result being that Landlord shall hold such 10%
retainage). Unless Tenant shall have previously paid Tenant’s contractor the
sums requested from the Unit 15B Tenant Fund, Tenant shall promptly pay any


28





such sums disbursed from the Unit 15B Tenant Fund to Tenant’s
contractors or to such other vendors as shall be entitled thereto. Landlord
shall pay to Tenant the balance of all such retainage then withheld by Landlord
within thirty (30) days after completion of the Unit 15B Initial Alterations.
Similarly, Tenant shall pay the balance of all retainage then withheld by
Tenant when due under the respective agreements pertaining thereto and provide
Landlord with evidence of such payment. If Landlord in good faith believes it
is not obligated to make a requested disbursement from the Unit 15B Tenant
Fund, Landlord may (subject to the provisions set forth below, including,
without limitation, the right to arbitrate such dispute) withhold such
disbursement, provided it shall provide Landlord within twelve (12) Business
Days after receipt of Tenant’s request for disbursement with a Disbursement
Dispute Notice. If Landlord provides Tenant with a Disbursement Dispute Notice,
then Tenant and Landlord shall endeavor to resolve such dispute within the next
ten (10) Business Days and thereafter (if the Landlord has still not paid such
portion of the Unit 15B Tenant Fund) Tenant may submit to arbitration (in
accordance with Section 38.7 of the Lease) the issue of Landlord’s obligation
to make the disbursement in question. If Tenant obtains an arbitration decision
that Landlord was obligated to pay all or any portion of the requested
disbursement (or if the Landlord subsequently concedes that such amount is due,
with or without an arbitration), Landlord shall within ten (10) Business Days
of such decision pay such amount to Tenant, together with interest at the
Applicable Rate from the date such amounts were due until the date paid. To the
extent that Landlord fails to pay such amount within such ten (10) Business Day
period, then Tenant shall have the right to offset any such amounts, together
with interest at the Applicable Rate from the date such amount shall have been
paid until the date of offset, against the next ensuing Rents payable
hereunder. 


          (b)
Landlord’s obligation to make disbursements from the Unit 15B Tenant Fund shall
be subject to the receipt of: (i) a request for such disbursement from Tenant,
together with the certification required by Section 6.2(a) hereof, (ii) copies
of all receipts, invoices and bills for the work completed and materials
furnished in connection with the Unit 15B Initial Alterations, or with respect
to Unit 15B FFE Costs and/or Unit 15B Soft Costs which, in either case, have
been paid by Tenant or which are then due and for which Tenant is seeking
reimbursement, (iii) with respect to disbursements of the Unit 15B Tenant Fund
to cover costs other than Unit 15B FFE Costs and/or Unit 15B Soft Costs, a
certificate of Tenant’s independent licensed architect on Standard AIA form
G-702 (or such other form as is reasonably approved by Landlord) stating (A)
that, in such architect’s opinion, the portion of the Unit 15B Initial
Alterations theretofore completed and for which the disbursement is requested
was performed in a good and workerlike manner substantially in accordance with
the final detailed plans and specifications for such Unit 15B Initial
Alterations, as approved (or deemed approved) by Landlord, (B) the percentage
of completion of such Unit 15B Initial Alterations as of the date of such
certificate, and (C) the estimated total cost to complete the performance of
such Unit 15B Initial Alterations, and (iv) with the exception of the first
request for disbursement from the Unit 15B Tenant Fund, partial lien waivers
from each contractor, subcontractor and materialman (who performed work or
supplied material in excess of $10,000 either individually or in the aggregate)
involved in the performance of the Unit 15B Initial Alterations relating to the
portion of the Unit 15B Initial Alterations theretofore performed and materials
theretofore provided and for which previous disbursements and/or the requested
disbursement has been or is to be made. Notwithstanding the foregoing, to the
extent that any requisition from the Unit 15B Tenant Fund shall be intended to
reimburse Tenant for any Unit 15B FFE Costs, Tenant shall: (i) deliver a
statement, certified by an officer of Tenant accurately describing the Unit 15B
FFE Costs for which payment is being 


29





requested and setting forth the amount of the disbursement from the
Tenant Fund being requested and attributable to FFE; (ii) deliver copies of
invoices or bills of sale; and (iii) if such FFE is stored away from the Unit
15B Space, identify the location of the off-premises storage. 


          (c) In no
event shall the aggregate amount paid by Landlord to Tenant under this Section
6.2 exceed the amount of the Unit 15B Tenant Fund. Upon the completion of the
Unit 15B Initial Alterations and satisfaction of the conditions set forth in
Section 6.2(d) hereof, any amount of the Unit 15B Tenant Fund which has not
been previously disbursed shall be retained by Landlord. Upon the disbursement
of the entire Unit 15B Tenant Fund (or the portion thereof if upon completion
of the Unit 15B Initial Alterations the Unit 15B Tenant Fund is not exhausted),
Landlord shall have no further obligation or liability whatsoever to Tenant for
further disbursement of any portion of the Unit 15B Tenant Fund to Tenant.
Tenant shall not be entitled to any payment or credit on account of the excess.
It is expressly understood and agreed that Tenant shall complete, at its sole
cost and expense, the Unit 15B Initial Alterations and pay all Unit 15B FFE
Costs and/or Unit 15B Soft Costs, whether or not the Unit 15B Tenant Fund is
sufficient to fund the completion of such Unit 15B Initial Alterations and Unit
15B FFE Costs and/or Unit 15B Soft Costs. 


          (d) Within
thirty (30) days after completion of the Unit 15B Initial Alterations, Tenant
shall deliver to Landlord (x) final waivers of lien from all contractors,
subcontractors and materialmen involved in the performance of the Unit 15B
Initial Alterations, (y) a certificate from Tenant’s independent licensed
architect certifying that, in his or her opinion, such Unit 15B Initial
Alterations have been performed in a good and workerlike manner and completed
substantially in accordance with the final detailed plans and specifications
for such Unit 15B Initial Alterations as approved by Landlord, and (z) a
certificate from Tenant certifying that that all contractors, subcontractors
and materialmen have been paid for the Unit 15B Initial Alterations and
materials furnished through such date. 


          (e)
Notwithstanding anything to the contrary in this Section 6.2, if Tenant has not
submitted requests for disbursement of the entire Unit 15B Tenant Fund in
accordance with the provisions of this Section 6.2 prior to the third
anniversary of the Unit 15B Space Inclusion Date, any portion of the Unit 15B
Tenant Fund not previously disbursed shall be retained by Landlord, and
Landlord shall have no further obligation to disburse any portion of the Unit
15B Tenant Fund, it being understood that Tenant shall not be entitled to a
credit, abatement or other concession on account thereof. 


          SECTION
6.3. Commencing on the Unit 15C Space Inclusion Date, Landlord shall contribute
an amount not to exceed the Unit 15C Tenant Fund toward (i) the cost (other
than Unit 15C FFE Costs and/or Unit 15C Soft Costs) of the performance of
certain Alterations to be performed by Tenant in order to prepare the Unit 15C
Space for Tenant’s occupancy (the “Unit 15C Initial Alterations”), (ii)
the cost of FFE for the Unit 15C Space (the costs described in this clause (ii)
being collectively referred to herein as “Unit 15C FFE Costs”), and
(iii) the fees of architects, engineers, expediters and consultants incurred in
connection with the performance of the Unit 15C Initial Alterations and the
purchase of such FFE (the costs described in this clause (iii) being
collectively referred to herein as “Unit 15C Soft Costs”).
Notwithstanding anything to the contrary provided herein, (i) Tenant shall not
be entitled to receive a portion of the Unit 15C Tenant Fund for Unit 15C FFE
Costs and/or Unit 15C Soft Costs earlier than the Unit 15C Space 


30





Inclusion Date; and (ii) Landlord shall not be required to contribute
toward Unit 15C FFE Costs and Unit 15C Soft Costs an amount which is, in the
aggregate, in excess of 25% of the Unit 15C Tenant Fund (of which, not more
than 10% shall be contributed to Unit 15C FFE Costs). Landlord shall disburse
the Unit 15C Tenant Fund in accordance with and subject to the provisions of
this Section 6.3. 


          (a)
Commencing on the Unit 15C Space Inclusion Date, Tenant may make monthly
requests from the Unit 15C Tenant Fund for the portion of Tenant’s Unit 15C
Initial Alterations and Unit 15C FFE Costs and Unit 15C Soft Costs paid or
incurred by Tenant with respect to the immediately preceding month. Landlord
shall disburse a portion of the Unit 15C Tenant Fund to Tenant from time to
time, within twenty-five (25) days after receipt of the items set forth in
Section 6.3(b) hereof, provided that such request is received by Landlord by
the tenth (10th) day of the calendar month in which Landlord receives such
request; and further provided that on the date of disbursement from the Unit
15C Tenant Fund, no Event of Default under the Lease, as amended hereby, shall
have occurred and be continuing. Disbursements from the Unit 15C Tenant Fund
shall not be made more frequently than monthly, and shall be in an amount equal
to the amount which is then due Tenant’s contractors (as certified by a duly
authorized officer of Tenant and by Tenant’s independent, licensed architect)
and which has not been the subject of a previous disbursement from the Unit 15C
Tenant Fund, after first deducting retainage equal to ten percent (10%) of the
entire amount then due (provided, however, that no retainage shall be withheld
in respect of Unit 15C Soft Costs). Notwithstanding the foregoing, if Tenant’s
contract with the contractor shall have provided for Tenant to withhold 10%
retainage, then Landlord shall disburse the full amount due such contractor set
forth in its requisition (with the result being that Landlord shall hold such
10% retainage). Unless Tenant shall have previously paid Tenant’s contractor
the sums requested from the Unit 15C Tenant Fund, Tenant shall promptly pay any
such sums disbursed from the Unit 15C Tenant Fund to Tenant’s contractors or to
such other vendors as shall be entitled thereto. Landlord shall pay to Tenant
the balance of all such retainage then withheld by Landlord within thirty (30)
days after completion of the Unit 15C Initial Alterations. Similarly, Tenant
shall pay the balance of all retainage then withheld by Tenant when due under
the respective agreements pertaining thereto and provide Landlord with evidence
of such payment. If Landlord in good faith believes it is not obligated to make
a requested disbursement from the Unit 15C Tenant Fund, Landlord may (subject
to the provisions set forth below, including, without limitation, the right to
arbitrate such dispute) withhold such disbursement, provided it shall provide
Landlord within twelve (12) Business Days after receipt of Tenant’s request for
disbursement with a Disbursement Dispute Notice. If Landlord provides Tenant
with a Disbursement Dispute Notice, then Tenant and Landlord shall endeavor to
resolve such dispute within the next ten (10) Business Days and thereafter (if
the Landlord has still not paid such portion of the Unit 15C Tenant Fund)
Tenant may submit to arbitration (in accordance with Section 38.7 of the Lease)
the issue of Landlord’s obligation to make the disbursement in question. If
Tenant obtains an arbitration decision that Landlord was obligated to pay all
or any portion of the requested disbursement (or if the Landlord subsequently
concedes that such amount is due, with or without an arbitration), Landlord
shall within ten (10) Business Days of such decision pay such amount to Tenant,
together with interest at the Applicable Rate from the date such amounts were
due until the date paid. To the extent that Landlord fails to pay such amount
within such ten (10) Business Day period, then Tenant shall have the right to
offset any such amounts, together with interest at the Applicable Rate from the
date such amount shall have been paid until the date of offset, against the
next ensuing Rents payable hereunder. 


31





          (b)
Landlord’s obligation to make disbursements from the Unit 15C Tenant Fund shall
be subject to the receipt of: (i) a request for such disbursement from Tenant,
together with the certification required by Section 6.3(a) hereof, (ii) copies
of all receipts, invoices and bills for the work completed and materials
furnished in connection with the Unit 15C Initial Alterations, or with respect
to Unit 15C FFE Costs and/or Unit 15C Soft Costs which, in either case, have
been paid by Tenant or which are then due and for which Tenant is seeking
reimbursement, (iii) with respect to disbursements of the Unit 15C Tenant Fund
to cover costs other than Unit 15C FFE Costs and/or Unit 15C Soft Costs, a
certificate of Tenant’s independent licensed architect on Standard AIA form
G-702 (or such other form as is reasonably approved by Landlord) stating (A)
that, in such architect’s opinion, the portion of the Unit 15C Initial
Alterations theretofore completed and for which the disbursement is requested
was performed in a good and workerlike manner substantially in accordance with
the final detailed plans and specifications for such Unit 15C Initial
Alterations, as approved (or deemed approved) by Landlord, (B) the percentage
of completion of such Unit 15C Initial Alterations as of the date of such
certificate, and (C) the estimated total cost to complete the performance of
such Unit 15C Initial Alterations, and (iv) with the exception of the first
request for a disbursement from the Unit 15C Tenant Fund, partial lien waivers from
each contractor, subcontractor and materialman (who performed work or supplied
materials in excess of $10,000 either individually or in the aggregate)
involved in the performance of the Unit 15C Initial Alterations relating to the
portion of the Unit 15C Initial Alterations theretofore performed and materials
theretofore provided and for which previous disbursements and/or the requested
disbursement has been or is to be made. Notwithstanding the foregoing, to the
extent that any requisition from the Unit 15C Tenant Fund shall be intended to
reimburse Tenant for any Unit 15C FFE Costs, Tenant shall: (i) deliver a
statement, certified by an officer of Tenant accurately describing the Unit 15C
FFE Costs for which payment is being requested and setting forth the amount of
the disbursement from the Tenant Fund being requested and attributable to FFE;
(ii) deliver copies of invoices or bills of sale; and (iii) if such FFE is
stored away from the Unit 15C Space, identify the location of the off-premises
storage. 


          (c) In no
event shall the aggregate amount paid by Landlord to Tenant under this Section
6.3 exceed the amount of the Unit 15C Tenant Fund. Upon the completion of the
Unit 15C Initial Alterations and satisfaction of the conditions set forth in Section
6.3(d) hereof, any amount of the Unit 15C Tenant Fund which has not been
previously disbursed shall be retained by Landlord. Upon the disbursement of
the entire Unit 15C Tenant Fund (or the portion thereof if upon completion of
the Unit 15C Initial Alterations the Unit 15C Tenant Fund is not exhausted),
Landlord shall have no further obligation or liability whatsoever to Tenant for
further disbursement of any portion of the Unit 15C Tenant Fund to Tenant.
Tenant shall not be entitled to any payment or credit on account of the excess.
It is expressly understood and agreed that Tenant shall complete, at its sole
cost and expense, the Unit 15C Initial Alterations and pay all Unit 15C FFE
Costs and/or Unit 15C Soft Costs, whether or not the Unit 15C Tenant Fund is
sufficient to fund the completion of such Unit 15C Initial Alterations and Unit
15C FFE Costs and/or Unit 15C Soft Costs. 


          (d) Within
thirty (30) days after completion of the Unit 15C Initial Alterations, Tenant
shall deliver to Landlord (x) final waivers of lien from all contractors,
subcontractors and materialmen involved in the performance of the Unit 15C
Initial Alterations, (y) a certificate from Tenant’s independent licensed
architect certifying that, in his or her opinion, such Unit 15C Initial
Alterations have been performed in a good and workerlike manner and completed 


32





substantially in accordance with the final detailed plans and
specifications for such Unit 15C Initial Alterations as approved by Landlord,
and (z) a certificate from Tenant certifying that that all contractors,
subcontractors and materialmen have been paid for the Unit 15C Initial
Alterations and materials furnished through such date. 


          (e)
Notwithstanding anything to the contrary in this Section 6.3, if Tenant has not
submitted requests for disbursement of the entire Unit 15C Tenant Fund in
accordance with the provisions of this Section 6.3 prior to the third
anniversary of the Unit 15C Space Inclusion Date, any portion of the Unit 15C
Tenant Fund not previously disbursed shall be retained by Landlord, and
Landlord shall have no further obligation to disburse any portion of the Unit
15C Tenant Fund, it being understood that Tenant shall not be entitled to a
credit, abatement or other concession on account thereof. 


          SECTION
6.4. Landlord reserves the right to impose reasonable requirements in
connection with the performance of the Unit 15A Initial Alterations, the Unit
15B Initial Alterations and the Unit 15C Initial Alterations, including, without
limitation, that Alterations such as “core drilling”, demolition and any work
requiring an interruption or shut-down of Building Systems, shall be performed
after Business Hours (provided, however, that Alterations which will not
disturb other tenants may, subject to other applicable provisions of the Lease
as amended hereby, be performed during Business Hours). 


          SECTION
6.5. Supplementing Section 3.3 of the Lease, except with respect to the Unit
15A Initial Alterations, the Unit 15B Initial Alterations and the Unit 15C
Initial Alterations, Tenant shall pay to Landlord all reasonable out-of-pocket
costs and expenses paid or incurred by Landlord in connection with security,
temporary barricades, janitorial, engineering and architectural or consulting
services furnished in connection with any Alterations performed by Tenant. With
respect to all Alterations (including, without limitation, the Unit 15A Initial
Alterations, the Unit 15B Initial Alterations and the Unit 15C Initial
Alterations), Tenant shall pay to Landlord any Review Costs within thirty (30)
Business Days after Landlord’s demand therefor. Tenant shall not be charged any
fee payable to Landlord or its managing agent (in contradistinction to
professional fees payable to third parties) with respect to any Alterations,
including the Unit 15A Initial Alterations, the Unit 15B Initial Alterations
and the Unit 15C Initial Alterations. 


          SECTION
6.6. Notwithstanding any contrary provision contained in the Lease as amended
hereby: (i) all Alterations and FFE made or purchased at Tenant’s expense
(i.e., those Alterations and FFE not paid for with the Tenant Fund, Unit 15A
Tenant Fund, Unit 15B Tenant Fund or Unit 15C Tenant Fund) shall be deemed to
be owned by Tenant for the purposes of income taxes and Tenant shall have the
right to depreciate the cost of such Alterations, (ii) all Alterations and FFE
made or purchased with the Tenant Fund, Unit 15A Tenant Fund, Unit 15B Tenant
Fund or Unit 15C Tenant Fund shall be deemed to be owned by Landlord for the
purposes of income taxes and Landlord shall have the right to depreciate the
cost of such Alterations and FFE, and (iii) in no event shall (A) any Tenant’s
Property be deemed Alterations or (B) Tenant’s Property be deemed to include any
FFE purchased with the Tenant Fund, Unit 15A Tenant Fund, Unit 15B Tenant Fund
or Unit 15C Tenant Fund. Landlord shall be the owner of all FFE purchased with
the Tenant Fund, Unit 15A Tenant Fund, Unit 15B Tenant Fund or Unit 15C Tenant
Fund, and Tenant shall maintain all of such FFE throughout the Term of the 


33





Lease in good order and condition; provided, however, that Tenant shall
have the right, during the Term, to use the FFE purchased by Tenant with the
Tenant Fund, Unit 15A Tenant Fund, Unit 15B Tenant Fund or Unit 15C Tenant
Fund. Landlord shall have no liability or obligations of any nature whatsoever
to Tenant with respect to said FFE during the Term of the Lease. No portion of
the Rent payable under the Lease, as amended hereby, shall be deemed for any
purpose paid on account of the use of the FFE by Tenant; and Tenant shall pay
all sales taxes, if any, imposed by New York State or New York City in
connection with the purchase or the use of said FFE by Tenant. 


ARTICLE VII. 

15TH FLOOR OFFER SPACE


          SECTION
7.1. For purposes of this Article 7, the term “15th Floor Offer Space”
shall mean the portion of the fifteenth (15th) floor of the Building indicated
by hatching on the floor plan annexed hereto as Exhibit “H-1”. 


          SECTION 7.2.
Provided no Event of Default shall have occurred and then be continuing under
the Lease as of the date of the giving of Tenant’s 15th Floor Acceptance (as
such term is hereinafter defined), if at any time subsequent to the date hereof
the 15th Floor Offer Space shall become Available for Leasing (as said term is
defined in Section 7.7 hereof), Landlord shall, before offering the 15th Floor
Offer Space to any other Prospective Tenant, offer to Tenant the right to add
the 15th Floor Offer Space to the Premises on a one-time basis subject to the
provisions of Section 7.4 hereof, upon all of the terms and conditions of the
Lease, as amended hereby, except that: (i) the Fixed Rent payable with respect
to the 15th Floor Offer Space shall be the Offer Space Rental Value as
determined pursuant to Section 7.12 hereof for the 15th Floor Offer Space; (ii)
the Base Tax Year attributable to the 15th Floor Offer Space shall be the New
York City fiscal tax year in which the 15th Floor Offer Space Inclusion Date
shall occur; (iii) the Base Operating Year, Base Insurance Year and Base Energy
Year attributable to the 15th Floor Offer Space shall be the calendar year in
which the 15th Floor Offer Space Inclusion Date shall occur; (iv) Tenant’s
Share attributable to the 15th Floor Offer Space shall be the Tenant’s Share
set forth in the 15th Floor Offer Notice; (v) Tenant’s Tax Share attributable
to the 15th Floor Offer Space shall be the Tenant’s Tax Share set forth in the
15th Floor Offer Notice; (vi) the Term of the Lease (the “15th Floor Offer
Space Term”) with respect to the 15th Floor Offer Space shall commence on
the 15th Floor Offer Space Inclusion Date and shall end on the Expiration Date
of the Lease, as the same may be extended (so that the 15th Floor Offer Space
Term shall be co-terminous with the Term of the Lease); and (vii) the 15th
Floor Offer Space shall be delivered in its “as is” condition and Landlord
shall have no obligation to perform any work or make any installation in or to
the 15th Floor Offer Space nor shall Tenant be entitled to any tenant
contribution for the 15th Floor Offer Space except as expressly provided in
this Article 7 and except to the extent required by Section 6.3 of the Lease. 


          SECTION
7.3. Landlord shall offer the 15th Floor Offer Space in a written notice
(hereinafter called the “15th Floor Offer Notice”) delivered by Landlord
not earlier than six (6) months prior to the date Landlord reasonably expects
the 15th Floor Offer Space to be Available for Leasing to Tenant, which offer
shall designate (i) the rentable square footage of the 15th Floor Offer Space
(which shall be based on a loss factor which is then being used in general for 


34





new leases in Comparable Buildings), (ii) Tenant’s Share and Tenant’s
Tax Share for the 15th Floor Offer Space, and (iii) the date upon which
Landlord expects to deliver the 15th Floor Offer Space to Tenant. Tenant may
accept the offer set forth in the 15th Floor Offer Notice by delivering to
Landlord an unconditional written notice of Tenant’s acceptance (hereinafter
referred to as “Tenant’s 15th Floor Acceptance”) of such offer within
twenty (20) Business Days after delivery by Landlord of the 15th Floor Offer
Notice to Tenant. In such event, the 15th Floor Offer Space shall be added to
the Premises on the date Landlord delivers the 15th Floor Offer Space to Tenant
for Tenant’s possession vacant, free of any occupancies and in the 15th Floor
Offer Space Condition (as said term is hereinafter defined) and otherwise in
accordance with the terms of such 15th Floor Offer Notice (hereinafter referred
to as the “15th Floor Offer Space Inclusion Date”). Time shall be of the
essence with respect to the giving of Tenant’s 15th Floor Acceptance. Landlord
shall provide Tenant the opportunity to inspect the 15th Floor Offer Space at
Tenant’s reasonable convenience during the twenty (20) Business Day period
following the giving of the 15th Floor Offer Notice to Tenant. 


          SECTION
7.4. If Tenant does not accept (or fails to timely accept) an offer made by
Landlord pursuant to the provisions of this Article 7 with respect to the 15th
Floor Offer Space designated in the 15th Floor Offer Notice, Tenant shall be
deemed to waive its right to forever lease the 15th Floor Offer Space in
accordance with the provisions of this Article 7, and Landlord shall have the
right to enter into a lease for the 15th Floor Offer Space with one or more
Prospective Tenants at any time without being required to re-offer the 15th
Floor Offer Space to Tenant. 


          SECTION 7.5.
If Tenant shall timely exercise its option set forth in this Article 7 with
respect to the 15th Floor Offer Space offered by Landlord in a 15th Floor Offer
Notice, but Landlord shall be unable to give possession of the 15th Floor Offer
Space or any portion thereof on the 15th Floor Offer Space Inclusion Date
because of the holding over or retention of possession of any tenant,
undertenant, or occupant of such space, then (a) Landlord shall not be subject
to any liability for failure to give possession on said date, (b) the validity
of the Lease and this Amendment shall not be impaired under such circumstances
nor shall the same be construed to extend the Term of this Lease with respect
to the 15th Floor Offer Space or otherwise, and (c) Tenant waives any right to
rescind the Lease or this Amendment under Section 223-a of the New York Real
Property Law or any successor statute of similar nature and purpose then in
force, and further waives the right to recover any damages which may result
from Landlord’s failure to deliver possession of the 15th Floor Offer Space or
portion thereof to Tenant on the 15th Floor Offer Space Inclusion Date and
agrees that the provisions of this Section 7.5 shall constitute an “express
provision to the contrary” within the meaning of Section 223-a of the New York
Real Property Law, and (d) Landlord shall use commercially reasonable efforts
to deliver possession of the 15th Floor Offer Space to Tenant and, in
connection therewith, if such holding over shall continue for more than sixty
(60) days, Landlord shall institute and diligently and in good faith prosecute
holdover and any other appropriate proceedings against the occupant of the 15th
Floor Offer Space. If, however, the 15th Floor Offer Space shall be unavailable
for Tenant’s occupancy within six (6) months after the date set forth by
Landlord as the 15th Floor Offer Space Inclusion Date, then Tenant shall have
the right, by giving notice to Landlord within fifteen (15) days after the
expiration of such six (6) month period, to rescind Tenant’s 15th Floor
Acceptance; and thereafter 


35





Landlord shall be free to lease the 15th Floor Offer Space offered in
the 15th Floor Offer Notice to others on terms as Landlord may, in its sole
discretion, desire. 


          SECTION
7.6. Tenant agrees that Landlord shall not be required to perform any work,
supply any materials or incur any expense to prepare such 15th Floor Offer
Space for Tenant’s occupancy, except that Landlord, at Landlord’s sole cost and
expense, shall (i) demolish the existing tenant improvements in the 15th Floor
Offer Space including, but not limited to, flooring, ceilings, light fixtures,
partitions, equipment, wiring and cabling, and (ii) deliver the 15th Floor
Offer Space to Tenant vacant and in broom clean condition, free of any debris,
vacant and free of occupants (such condition being-referred to as the “15th
Floor Offer Space Condition”). 


          SECTION
7.7. As used in this Article 7, the term “Available for Leasing” shall
mean that the 15th Floor Offer Space is anticipated to become vacant during the
succeeding six (6) month period and is reasonably anticipated to become
available for leasing to Tenant. Landlord represents that the only lease of the
15th Floor Offer Space is described on Exhibit H to this Amendment, that
such tenant has no renewal or extension option under such lease and that no
other tenant of the Building has or shall have any rights to lease the 15th
Floor Offer Space superior to Tenant’s rights under this Article 7. Landlord,
without Tenant’s consent, shall not hereafter amend the lease of the existing
tenant of the 15th Floor Offer Space to extend the term thereof or to grant
such tenant a renewal or extension option that is superior to Tenant’s rights
hereunder. 


          SECTION
7.8. The provisions of this Article 7 shall be effective with respect to the
15th Floor Offer Space only if, on the date on which Tenant gives Tenant’s 15th
Floor Acceptance, Tenant shall not have sublet fifty percent (50%) or more of
the rentable area of the Premises to a party other than an Affiliate of Tenant,
except that such occupancy requirement may be waived by Landlord, in its sole
discretion. 


          SECTION
7.9. In the event Landlord offers the 15th Floor Offer Space to Tenant pursuant
to this Article 7, Tenant shall not have the right to accept such offer unless
there shall be a minimum of three (3) years remaining in the Term from and
after the date reasonably anticipated to be the 15th Floor Offer Space
Inclusion Date (including the Renewal Term, if Tenant timely exercises its
option to extend the Term in accordance with Article 41 of the Lease). 


          SECTION
7.10. 


          (a) If
Tenant elects to lease the 15th Floor Offer Space, after a determination has
been made of the 15th Floor Offer Space Rental Value, Landlord and Tenant shall
enter into an agreement, in form and substance reasonably satisfactory to both
parties, confirming the inclusion in the Lease of the 15th Floor Offer Space,
as well as the 15th Floor Offer Space Inclusion Date and the 15th Floor Offer
Space Rental Value with respect to such 15th Floor Offer Space; provided,
however that failure to execute and deliver such agreement shall not affect the
election by Tenant to include the 15th Floor Offer Space as part of the Premises
on the terms set forth herein. 


36





          (b) If
Tenant elects to lease the 15th Floor Offer Space, effective as of the 15th
Floor Offer Space Inclusion Date, Landlord and Tenant acknowledge and agree
that the Unit 15A Space, the Unit 15B Space, the Unit 15C Space and the 15th
Floor Offer Space shall collectively constitute the entire rentable area of the
15th floor of the Building (the “15th Floor”), and effective as of such
Date Landlord and Tenant further agree that Exhibit A, Exhibit B,
Exhibit C, and Exhibit H-1 to this Amendment shall be deleted and
collectively replaced by the floor plan of the 15th Floor annexed hereto as Exhibit
“H-2” and made a part hereof, provided, however, that Tenant’s Share,
Tenant’s Tax Share, and the rentable square footage with respect to the Unit
15A Space, the Unit 15B Space, the Unit 15C Space and the 15th Floor Offer
Space shall not be affected by reason thereof. Landlord and Tenant agree that
Landlord shall deliver the restrooms on the 15th Floor of the Building (the “15th
Floor Restrooms”) and other common areas on the 15th Floor of the Building
(collectively, the “15th Floor Common Areas”) to Tenant upon the 15th
Floor Offer Space Inclusion Date in good condition and repair but otherwise in
their then “AS-IS” condition, and that, effective as of the 15th Floor Offer
Space Inclusion Date, the 15th Floor Common Areas shall be deemed part of the
Premises. Landlord shall have no further obligation to maintain or repair the
15th Floor Common Areas, and the same shall be maintained and repaired by
Tenant at the sole cost and expense of Tenant, except that Landlord
shall continue to maintain the Building Systems which provide service to the
15th Floor Restrooms (but not to the distribution portions of any such Building
Systems located within the 15th Floor Restrooms) subject to and in accordance
with the terms and conditions of the Lease applicable thereto. 


          SECTION
7.11. The expiration of the Lease or termination of the Lease during the Term
shall also terminate and render void any option or election under this Article
7, whether or not the same shall have been exercised; and nothing contained in
this Article 7 shall prevent Landlord from exercising any right or action
granted to or reserved by Landlord in the Lease, as amended hereby, to
terminate the Lease. No option or election of or by Tenant set forth in this
Article 7 may be severed from the Lease or separately sold, assigned (i.e.,
other than to a permitted assignee in connection with a permitted assignment of
the Lease) or transferred. 


          SECTION
7.12. If Tenant shall deliver Tenant’s 15th Floor Acceptance as aforesaid, the
Fixed Rent for the applicable 15th Floor Offer Space shall be an amount equal
to the greater of (a) the Fair Market Rent (as hereinafter defined) with
respect to the 15th Floor Offer Space, and (b) the ROFO Rent (as hereinafter
defined) (the greater of (a) and (b) being hereinafter referred to as the “Offer
Space Rental Value”). As used in this Lease, the term “ROFO Rent”
means (i) if the 15th Floor Offer Space shall be delivered to Tenant on or
prior to March 31, 2012, the product of (s) the sum of Fifty Nine Dollars
($59.00) and the PSF Escalation Rent (as hereinafter defined) and (t) the
rentable square footage of the 15th Floor Offer Space, (ii) if the 15th Floor
Offer Space shall be delivered to Tenant from April 1, 2012 through March 31,
2017, the product of (u) the sum of Sixty Four Dollars ($64.00) and the PSF
Escalation Rent and (v) the rentable square footage of the 15th Floor Offer
Space, (iii) if the 15th Floor Offer Space shall be delivered to Tenant from
April 1, 2017 through March 31, 2022, the product of (w) the sum of Sixty Nine
Dollars ($69.00) and the PSF Escalation Rent and (x) the rentable square
footage of the 15th Floor Offer Space, and (iv) if the 15th Floor Offer Space
shall be delivered to Tenant during the Renewal Term, the product of (y) the
sum of the Fixed Rent for the Renewal Term (per rentable square foot) and the
PSF Escalation Rent and (z) the rentable square footage of the 15th Floor Offer
Space. “PSF Escalation Rent” means the aggregate Escalation Rent then 


37





payable with respect to the portion of the Premises located on the 15th
floor of the Building only, divided by the aggregate rentable square footage
with respect to such portion of the Premises. 


          SECTION
7.13. For purposes of this Article 7, the term “Fair Market Rent” shall
mean the annual fair market rental value of the 15th Floor Offers Space
determined on the basis of the use of such Space as offices assuming (i) that
the such Space is free and clear of all leases and tenancies (including the
Lease, as amended hereby), (ii) that such Space is available in the then rental
market for comparable first class office buildings, (iii) that the remaining
Term of the Lease is not less than ten (10) years, (iv) that Landlord has had a
reasonable time to locate a tenant who rents with the knowledge of the uses to
which such Space can be adapted, and (v) that neither Landlord nor the Prospective
Tenant is under any compulsion to rent, and taking into account all other
relevant factors in connection with such leasing (including, without
limitation, the applicable Base Tax Year, Base Operating Year, Base Insurance
Year and Base Energy Year which shall be used to calculate Escalation Rent with
respect to such Space). For purposes of determining the Fair Market Rent, the
following procedure shall apply: 


          (a)
Landlord and Tenant shall each contemporaneously deliver to the other, at
Landlord’s office, a written notice (each a “Rent Notice”) on a date
mutually agreed upon, but in no event later than the date which is ten (10)
days after Tenant shall have delivered Tenant’s 15th Floor Acceptance, and if
no date is mutually agreed upon, then the date which is ten (10) days after
Tenant shall have delivered Tenant’s 15th Floor Acceptance, which Rent Notice
shall set forth their respective good faith determinations of the applicable
Fair Market Rent (Landlord’s determination of the applicable Fair Market Rent
is referred to as “Landlord’s Determination” and Tenant’s determination
of the applicable Fair Market Rent is referred to as “Tenant’s Determination”).
If Landlord shall fail or refuse to give such notice as aforesaid, the
applicable Fair Market Rent shall be deemed to be equal to the ROFO Rent, and
if Tenant shall fail or refuse to give such notice as aforesaid, the applicable
Fair Market Rent shall be deemed to be the same as Landlord’s Determination. If
neither Landlord nor Tenant shall deliver a Rent Notice as aforesaid, the
applicable Fair Market Rent shall be deemed to be the ROFO Rent. 


          (b) If
Landlord’s Determination and Tenant’s Determination are not equal, and Tenant’s
Determination is lower than Landlord’s Determination, Landlord and Tenant shall
attempt to agree upon the Fair Market Rent. If Tenant’s Determination is higher
than Landlord’s Determination, the fixed rent with respect to the 15th Floor
Offer Space shall be equal to Tenant’s Determination. If Landlord and Tenant
shall mutually agree upon the determination (the “Mutual Determination”)
of the applicable Fair Market Rent, their determination shall be the applicable
Fair Market Rent and shall be final and binding upon the parties. If Landlord
and Tenant shall be unable to reach a Mutual Determination within fifteen (15)
days after delivery of both Determinations to each party, Landlord and Tenant
shall jointly select an independent real estate appraiser (the “Appraiser”)
whose fee shall be borne equally by Landlord and Tenant. In the event that
Landlord and Tenant shall be unable to jointly agree on the designation of the
Appraiser within five (5) days after they are requested to do so by either
party, then the parties agree to allow the AAA, or any successor organization
to designate the Appraiser in accordance with the rules, regulations and/or
procedures then obtaining of the AAA or any successor organization. 


38





          (c) The
Appraiser shall conduct such hearings and investigations as he or she may deem
appropriate and shall, within twenty (20) days after the date of designation of
the Appraiser, choose either Landlord’s or Tenant’s Determination, and such
choice by the Appraiser shall be conclusive and binding upon Landlord and
Tenant. Each party shall pay its own counsel fees and expenses, if any, in
connection with any arbitration under this Article 7. The Appraiser appointed
pursuant to this Article 7 shall be an independent real estate appraiser with
at least ten (10) years’ experience in leasing and valuation of properties
which are similar in character to the Building, and a member of the American
Institute of Appraisers of the National Association of Real Estate Boards and a
member of the Society of Real Estate Appraisers. The Appraiser shall not have the
power to add to, modify or change any of the provisions of the Lease, as
amended hereby. 


          (d) It is
expressly understood that any determination of the applicable Fair Market Rent
pursuant to this Article shall be based on the criteria stated in Section 7.13
hereof. 


ARTICLE VIII. 

ALTERATIONS


          SECTION
8.1. INTENTIONALLY OMITTED. 


ARTICLE IX. 

NOTICES


          SECTION
9.1. 


          (a)
Effective as of the date hereof, Landlord’s Notice Address set forth in the
Reference Data of the Lease shall be deleted in its entirety and the following
substituted therefor: 


	
  

 	
  

 
	
  

 	
 “Morgan Stanley Real Estate Advisor, Inc.

 
	
  

 	
 US RE Investing Division

 
	
  

 	
 1585 Broadway, Floor 37

 
	
  

 	
 New York, NY 10036

 
	
  

 	
 Attn: Asset Manager – Two Park Avenue

 
	
  

 	
  

 
	
  

 	
 With a copy to:

 
	
  

 	
  

 
	
  

 	
 Wilikie Farr & Gallagher LLP

 
	
  

 	
 787 Seventh Avenue

 
	
  

 	
 New York, NY 10019

 
	
  

 	
 Attn.: Robert I. Bressman, Esq.”

 


          (b)
Effective as of the date hereof, Tenant’s Notice Address set forth in the
Reference Data of the Lease shall be amended to provide that the copy of
notices to Tenant shall be sent to: 


	
  

 	
  

 
	
  

 	
 “Loeb & Loeb LLP

 
	
  

 	
 345 Park Avenue

 
	
  

 	
 New York, New York 10154

 
	
  

 	
 Attn: Raymond A. Sanseverino, Esq.”

 


39





ARTICLE X. 

MISCELLANEOUS


          SECTION
10.1. Landlord and Tenant each represents and warrants to the other that it has
not dealt with any broker in connection with this Amendment other than L&L
Holding Company, LLC and CB Richard Ellis, Inc. (collectively, the “Broker”).
Each party agrees to defend, indemnify and hold harmless the other party
against and from any claims for any brokerage commissions and all costs,
expenses and liabilities in connection therewith, including, without
limitation, reasonable attorneys’ fees and disbursements, arising out of claims
asserted by any broker (other than Broker with respect to Tenant’s indemnity of
Landlord) claiming to have represented such party in connection with this
Amendment. The provisions of this paragraph shall survive the expiration or
earlier termination of the Lease and this Amendment. 


          SECTION
10.2. This Amendment, together with the Lease, constitutes the entire agreement
of the parties hereto with respect to the matters stated herein and may not be
amended or modified unless such amendment or modification shall be in writing
and signed by the party against whom enforcement is sought. 


          SECTION
10.3. The terms, covenants and conditions contained in this Amendment shall
bind and inure to the benefit of the parties hereto and their respective
permitted successors and assigns, subject in all respects to the terms and
conditions of the Lease. 


          SECTION
10.4. This Amendment shall be governed in all respects by the laws of the State
of New York, without regard to principles of conflict of law. 


          SECTION
10.5. Except as amended and modified hereby, all terms of the Lease as
heretofore in effect shall remain in full force and effect, and, as amended and
modified hereby, are hereby ratified and confirmed in all respects. 


          SECTION
10.6. This Amendment may be executed in any number of counterparts, each of
which shall be a valid and binding original, but all of which together shall
constitute one and the same instrument. 


          SECTION
10.7. Submission of this Amendment by Landlord is not an offer to enter this
Amendment. Neither Landlord nor Tenant shall be bound by this Amendment until
Landlord and Tenant have executed and delivered the same to the other party. 


          SECTION
10.8. Landlord and Tenant each represents and warrants that its execution and
delivery of this Amendment has been duly authorized, that the individual
executing this Amendment on its behalf has been duly authorized to do so, and
that no further action or approval is required by it with respect to this
transaction. Landlord further represents that as of the date of this Amendment,
there is no Mortgage or Superior Lease encumbering the Real Property. 


          SECTION
10.9. Provided that the Building Security Procedures then in effect for the
Building shall require the use of Card Keys, Landlord agrees that Landlord, at
Landlord’s sole cost and expense, shall make available to Tenant (i)
eighty-five (85) additional Card Keys upon 


40





the Unit 15A Space Inclusion Date, (ii) ten (10) additional Card Keys
upon the Unit 15B Space Inclusion Date, and (iii) ninety-five (95) additional
Card Keys upon the Unit 15C Space Inclusion Date. Tenant shall, on or before
the Expiration Date, return to Landlord all such Card Keys furnished to Tenant.



          SECTION
10.10. Effective as of (i) the Unit 15A Space Inclusion Date, Section 28.7 of
the Lease is hereby amended by deleting the phrase “seventy-five (75)” and
substituting the phrase “ninety (90)” therefor, (ii) the Unit 15B Space
Inclusion Date, Section 28.7 of the Lease is hereby amended by deleting the
phrase “ninety (90)” and substituting the phrase “ninety-five (95)” therefor,
and (iii) the Unit 15C Space Inclusion Date, Section 28.7 of the Lease is
hereby amended by deleting the phrase “ninety-five (95)” and substituting the
phrase “one-hundred ten (110)” therefor. 


 [REMAINDER OF THIS PAGE INTENTIONALLY LEFT
BLANK]


41





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


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 LANDLORD:

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 PPF OFF TWO
 PARK AVENUE OWNER, LLC, a

 
	
  

 	
 Delaware
 limited liability company

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 PPF OFF TWO
 PARK AVENUE, LLC, a

 
	
  

 	
  

 	
 Delaware
 limited liability company, its

 
	
  

 	
  

 	
 Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By: PPF OFF,
 LLC, a Delaware limited liability

 
	
  

 	
  

 	
 company, its
 Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By: PPF OP,
 LP, a Delaware limited

 
	
  

 	
  

 	
  

 	
 partnership,
 its Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
 By: PPF
 OPGP, LLC, a Delaware

 
	
  

 	
  

 	
  

 	
  

 	
 limited
 liability company, its General

 
	
  

 	
  

 	
  

 	
  

 	
 Partner

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: PRIME
 PROPERTY FUND,

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 LLC, a
 Delaware limited liability

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 company, its
 Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: MORGAN
 STANLEY

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 REAL ESTATE
 ADVISOR,

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 INC., a
 Delaware corporation, its

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By:

 	
   /s/
 Amanda J. Voetsch

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Name:

 	
 Amanda J.
 Voetsch

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Title:

 	
 Vice
 President

 






	
  

 	
  

 	
  

 	
  

 
	
  

 	
 TENANT:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 COTY INC., a
 Delaware corporation

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
    /s/
 Michael Fishoff

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Name:

 	
 Michael
 Fishoff

 
	
  

 	
  

 	
 Title:

 	
 CFO

 


42





EXECUTION VERSION


Exhibit A


UNIT 15A


(See Attached)






[Floor Plan]





Exhibit B


UNIT 15B


(See Attached)


44






[Floor Plan]





Exhibit C


UNIT 15C


(See Attached)


45








[Floor Plan]




Exhibit D


LANDLORD’S UNIT 15A WORK*


	
  

 	
  

 
	
 1.

 	
 Landlord shall demolish existing tenant improvements in the Unit 15A
 Space, including, but not limited to flooring, ceilings, light fixtures,
 partitions, equipment, wiring and cabling. 

 
	
  

 	
  

 
	
 2.

 	
 Landlord shall provide Tenant with an ACP-5 certificate with respect
 to the Unit 15A Space. 

 
	
  

 	
  

 
	
 3.

 	
 Landlord shall install demising walls, corridors and doors on the
 15th floor of the Building at the locations shown on the floor plan annexed
 hereto as Exhibit A, so as to demise the Unit 15A Space from the balance of
 such 15th floor in compliance with all Requirements applicable thereto. 

 
	
  

 	
  

 
	
 4.

 	
 Landlord shall ensure a sufficient number of points of connection are
 available at the perimeter of the Unit 15A Space for Tenant’s tie-in to the
 Building’s “Class E” system. 

 
	
  

 	
  

 
	
 5.

 	
 Landlord shall deliver the perimeter heating system fully operational
 in good working order with thermostatically controlled Danfus valves. 

 
	
  

 	
  

 
	
 6.

 	
 Landlord shall replace and restore any missing fireproofing within
 the Unit 15A Space. 

 
	
  

 	
  

 
	
 7.

 	
 Landlord shall deliver the floors of the Unit 15A Space to Tenant in
 a reasonably level condition with no major cracks, dents or gaps in the floor
 slabs. To the extent permitted by Landlord, any additional structural
 reinforcement shall be at Tenant’s cost. 

 
	
  

 	
  

 
	
 8.

 	
 Landlord shall remove all existing base Building HVAC units from the
 existing mechanical and engineering rooms on the 15th floor of the Building
 identified as the “Existing MER Rooms” on Exhibit D-1 attached hereto, and
 shall construct one new mechanical and engineering room on the 15th floor of
 the Building in the area identified as the “New MER Room” on Exhibit D-1
 attached hereto. Landlord shall install two (2) 30-ton Mammoth (or, if a
 Mammoth brand unit is unavailable, an equivalent or better manufacturer)
 package, water cooled DX, VAV air conditioning unit in such mechanical and
 engineering room to be constructed by Landlord on the 15th floor of the Building.
 Such units shall be capable of performing in accordance with the
 specifications set forth in Exhibit G to the Lease. 

 
	
  

 	
  

 
	
 9.

 	
 Landlord shall install (if the same has not already been installed)
 one or more submeters for the purpose of measuring Tenant’s use of
 electricity in the Unit 15A Space. 

 


* Unless otherwise indicated, all materials, supplies and equipment
used by Landlord in connection with the foregoing shall be Building standard. 


46





EXHIBIT “D-1”
Landlord’s Unit 15A 15th Floor MER Room


(See Attached)


47






[Floor Plan]





Exhibit E


LANDLORD’S UNIT 15B WORK*


	
  

 	
  

 
	
 1.

 	
 Landlord shall demolish existing tenant improvements in the Unit 15B
 Space, including, but not limited to flooring, ceilings, light fixtures,
 partitions, equipment, wiring and cabling. 

 
	
  

 	
  

 
	
 2.

 	
 Landlord shall provide Tenant with an ACP-5 certificate with respect
 to the Unit 15B Space. 

 
	
  

 	
  

 
	
 3.

 	
 Landlord shall install demising walls, corridors and doors on the
 15th floor of the Building at the locations shown on the floor plan annexed
 hereto as Exhibit B, so as to demise the Unit 15B Space from the balance of
 such 15th floor in compliance with all Requirements applicable thereto. 

 
	
  

 	
  

 
	
 4.

 	
 Landlord shall ensure a sufficient number of points of connection are
 available at the perimeter of the Unit 15A Space for Tenant’s tie-in to the
 Building’s “Class E” system. 

 
	
  

 	
  

 
	
 5.

 	
 Landlord shall deliver the perimeter heating system fully operational
 in good working order with thermostatically controlled Danfus valves. 

 
	
  

 	
  

 
	
 6.

 	
 Landlord shall replace and restore any missing fireproofing within
 the Unit 15B Space. 

 
	
  

 	
  

 
	
 7.

 	
 Landlord shall deliver the floors of the Unit 15B Space to Tenant in
 a reasonably level condition with no major cracks, dents or gaps in the floor
 slabs. To the extent permitted by Landlord, any additional structural
 reinforcement shall be at Tenant’s cost. 

 
	
  

 	
  

 
	
 8.

 	
 Landlord shall install (if the same has not already been installed)
 one or more submeters for the purpose of measuring Tenant’s use of
 electricity in the Unit 15B Space. 

 


* Unless otherwise indicated, all materials, supplies and equipment
used by Landlord in connection with the foregoing shall be Building standard. 


48





Exhibit F


LANDLORD’S UNIT 15C WORK*


	
  

 	
  

 
	
 1.

 	
 Landlord shall demolish existing tenant improvements in the Unit 15C Space,
 including, but not limited to flooring, ceilings, light fixtures, partitions,
 equipment, wiring and cabling. 

 
	
  

 	
  

 
	
 2.

 	
 Landlord shall provide Tenant with an ACP-5 certificate with respect
 to the Unit 15C Space. 

 
	
  

 	
  

 
	
 3.

 	
 Landlord shall install demising walls, corridors and doors on the
 15th floor of the Building at the locations shown on the floor plan annexed
 hereto as Exhibit C, so as to demise the Unit 15C Space from the
 balance of such 15th floor in compliance with all Requirements applicable
 thereto. 

 
	
  

 	
  

 
	
 4.

 	
 Landlord shall ensure a sufficient number of points of connection are
 available at the perimeter of the Unit 15A Space for Tenant’s tie-in to the
 Building’s “Class E” system. 

 
	
  

 	
  

 
	
 5.

 	
 Landlord shall deliver the perimeter heating system fully operational
 in good working order with thermostatically controlled Danfus valves. 

 
	
  

 	
  

 
	
 6.

 	
 Landlord shall replace and restore any missing fireproofing within
 the Unit 15C Space. 

 
	
  

 	
  

 
	
 7.

 	
 Landlord shall deliver the floors of the Unit 15C Space to Tenant in
 a reasonably level condition with no major cracks, dents or gaps in the floor
 slabs. To the extent permitted by Landlord, any additional structural
 reinforcement shall be at Tenant’s cost. 

 
	
  

 	
  

 
	
 8.

 	
 Landlord shall construct one new mechanical and engineering room on
 the 15th floor of the Building in the area identified as the “New MER Room”
 on Exhibit F-1 attached hereto. Landlord shall install two (2) 30-ton Mammoth
 (or, if a Mammoth brand unit is unavailable, an equivalent or better
 manufacturer) package, water cooled DX, VAV air conditioning unit in such
 mechanical and engineering room to be constructed by Landlord on the 15th
 floor of the Building. Such units shall be capable of performing in
 accordance with the specifications set forth in Exhibit G to the
 Lease. 

 
	
  

 	
  

 
	
 9.

 	
 Landlord shall install (if the same has not already been installed)
 one or more submeters for the purpose of measuring Tenant’s use of
 electricity in the Unit 15C Space. 

 


* Unless otherwise indicated, all materials, supplies and equipment
used by Landlord in connection with the foregoing shall be Building standard. 


49





EXHIBIT “F-1”
Landlord’s Unit 15C 15th Floor MER Room


(See Attached)


50






[Floor Plan]





Exhibit G


LANDLORD’S 15TH FLOOR WORK*


	
  

 	
  

 
	
 1.

 	
 Landlord shall upgrade the core lavatories on the 15th floor of the
 Building (the “15th Floor Core Lavatories”) in accordance with plans
 and specifications prepared by Landlord in consultation with Tenant and
 approved by Tenant, approval of which shall not be unreasonably withheld or
 delayed, provided such plans and specifications are consistent with the
 design guidelines adopted by Landlord for the upgrade of core lavatories in
 the Building and meet or exceed the standard of quality adopted by Landlord
 as a “building standard” with respect to the upgrade of core lavatories in
 the Building. In connection with the foregoing, Landlord, at Landlord’s sole
 cost and expense, shall be responsible for the performance of any Alterations
 required to cause the 15th Floor Core Lavatories to comply with the requirements
 of the ADA. 

 


* Unless otherwise indicated, all materials, supplies and equipment
used by Landlord in connection with the foregoing shall be Building standard. 


51





Exhibit H


15TH FLOOR OFFER SPACE ENCUMBRANCES


	
  

 	
  

 	
  

 	
  

 	
  

 
	
 NAMED 

 TENANT

 	
  

 	
 FIXED 

 EXPIRATION 

 DATE

 	
  

 	
 RENEWAL 

 RIGHT OR 

 ROFO/ROFR

 
	

 


 	

  


 	

 


 	

  


 	

 


 
	
 Listowel Incorporated

 	
  

 	
 1/31/2016

 	
  

 	
 None.

 


52





Exhibit H-1


15TH FLOOR OFFER SPACE


(See Attached)


53






[Floor Plan]





Exhibit H-2


ENTIRE 15TH FLOOR


(See Attached)


54






[Floor Plan]





Exhibit I


FORM OF COMMENCEMENT DATE AGREEMENT


          This
Commencement Date Agreement is dated as of the ____ day of ______________,
200[_], by and between PPF OFF TWO PARK AVENUE OWNER, LLC, having an office at
c/o Morgan Stanley Real Estate Advisor, Inc., 1585 Broadway, New York, New York
10036 (“Landlord”) and COTY INC., having an office at 2 Park Avenue, New
York, New York 10016 (“Tenant”). 


W I T N E S S E T H:


          WHEREAS,
Landlord and Tenant have entered into that certain Agreement of Lease, dated as
of December 30, 2005, as amended by that certain Commencement Date Agreement,
dated April 19, 2006, that certain First Amendment to Lease, dated as of August
23, 2007, and that certain Second Amendment to Lease, dated as of
________________ , 2007 (the “Second Amendment”), pursuant to which Landlord
leases to Tenant certain space in the building known as 2 Park Avenue, New
York, NY, as more particularly described in the Lease; and 


          WHEREAS,
pursuant to the provisions of the Second Amendment, Landlord and Tenant have agreed
to enter into a written agreement confirming the Unit 15[_] Space Inclusion
Date and the Unit 15[_] Rent Commencement Date (as such terms are defined in
the Second Amendment). 


          NOW,
THEREFORE, Landlord and Tenant hereby acknowledge and agree that (i) the Unit
15[_] Space Inclusion Date (as such term is defined in the Second Amendment) is
___________________, and (ii) the Unit 15[_] Rent Commencement Date (as such
term is defined in the Second Amendment) is ________________. 


[REMAINDER OF THIS PAGE INTENTIONALLY LEFT
BLANK]


55





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


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 LANDLORD:

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 PPF OFF TWO
 PARK AVENUE OWNER, LLC, a

 
	
  

 	
 Delaware
 limited liability company

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By: PPF OFF
 TWO PARK AVENUE, LLC, a

 
	
  

 	
 Delaware
 limited liability company, its Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By: PPF OFF,
 LLC, a Delaware limited liability

 
	
  

 	
  

 	
 company, its
 Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By: PPF OP,
 LP, a Delaware limited

 
	
  

 	
  

 	
  

 	
 partnership,
 its Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
 By: PPF
 OPGP, LLC, a Delaware

 
	
  

 	
  

 	
  

 	
  

 	
 limited
 liability company, its General

 
	
  

 	
  

 	
  

 	
  

 	
 Partner

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: PRIME
 PROPERTY FUND,

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 LLC, a
 Delaware limited liability

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 company, its
 Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: MORGAN
 STANLEY

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 REAL ESTATE
 ADVISOR,

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 INC., a
 Delaware corporation, its

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By:

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Name:

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Title:

 	
  

 






	
  

 	
  

 	
  

 	
  

 
	
  

 	
 TENANT:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 COTY INC., a
 Delaware corporation

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
 Name:

 	
  

 
	
  

 	
  

 	
 Title:

 	
  

 


56





EXECUTION VERSION


THIRD AMENDMENT TO LEASE


          This Third
Amendment to Lease (this “Amendment”), dated as of the l3th day of
November, 2008, by and between PPF OFF TWO
PARK AVENUE OWNER, LLC, a Delaware limited liability company, having
an office at c/o Morgan Stanley Real Estate Advisor, Inc., 1585 Broadway, New
York, New York 10036 (“Landlord”), and COTY
INC., a Delaware corporation, having an office at 2 Park Avenue, New
York, New York 10016 (“Tenant”). 


W I T N E S S E T H


          WHEREAS,
pursuant to that certain Agreement of Lease, dated as of December 30, 2005, as
amended by that certain Commencement Date Agreement, dated April 19, 2006, by
that certain First Amendment to Lease, dated as of August 23, 2007, and by that
certain Second Amendment to Lease (the “Second Amendment”), dated as of
November 18, 2007 (the Agreement of Lease as heretofore amended is hereinafter
referred to as the “Lease”), Landlord, through Landlord’s
predecessor-in-interest, Seb Immobilien-Investment GmbH with respect to the
original Agreement of Lease, and directly with respect to the First Amendment
to Lease and Second Amendment, leased to Tenant certain premises (collectively,
the “Original Premises”) of the building known as Two Park Avenue, New
York, New York (the “Building”); and 


          WHEREAS,
Landlord and Tenant desire to modify and amend the Lease in order to provide
for the leasing to Tenant of certain storage space on the 18th floor of the
Building, and in certain other respects, all as set forth in this Amendment. 


          NOW,
THEREFORE, in consideration of the mutual covenants contained herein, and of
the sum of Ten Dollars ($10.00) paid by Tenant to Landlord, and for other good
and valuable consideration, the mutual receipt and legal sufficiency of which
are hereby acknowledged, the parties hereto, for themselves, their legal
representatives, successors and assigns, hereby agree to further modify and
amend the Lease as follows: 


Article I. 

Terms


          Section
1.1. All capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Lease. 


Article II. 

Demise of Storage Space


          Section
2.1. Landlord hereby leases to Tenant and Tenant hereby hires from Landlord
that certain storage space on the 18th floor of the Building identified by
crosshatching on Exhibit A attached hereto and made a part hereof (the “Storage
Space”), for a term commencing on the date that Landlord shall deliver
possession of the Storage Space to Tenant in broom-clean condition and free of
any equipment and personal property (the “Storage Space Commencement Date”)
and ending on the Expiration Date, or such earlier date upon which the Term of
the Lease shall sooner expire (the “Storage Space Term”). 





          Section 2.2.
Landlord shall use commercially reasonable efforts to deliver possession of the
Storage Space to Tenant within thirty (30) days of the unconditional execution
and delivery of this Amendment by Landlord and Tenant; provided, however, if
Landlord is unable to give possession of the Storage Space to Tenant because of
the holding over or retention of possession of any tenant, under-tenant or
occupant or for any other reason, (a) Landlord shall not be subject to any
liability for failure to give possession by said date, (b) the validity of the
Lease or this Amendment shall not be impaired under such circumstances, nor
shall the same be construed in any way to extend the term of the Lease with
respect to the Storage Space or otherwise, and (c) Tenant waives any right to
rescind the Lease or this Amendment under Section 223-a of the New York Real
Property Law or any successor statute of similar nature and purpose then in
force, and further waives the right to recover any damages which may result
from Landlord’s failure to deliver possession to Tenant and agrees that the
provisions of this Section 2.2 shall constitute “an express provision to the
contrary” within the meaning of Section 223-a of the New York Real Property
Law.  


Article III. 

Storage Space Rent


          Section
3.1. From and after the Storage Space Commencement Date, with respect to the
Storage Space only, Tenant shall pay Fixed Rent (a) for the period commencing
on the Storage Space Commencement Date and ending on the fourth (4th)
anniversary of the Storage Space Commencement Date, both dates inclusive (the “1st
Storage Space Rental Period”), at the annual fixed rental rate of Five
Thousand Four and 00/100 Dollars ($5,004.00), payable in equal monthly
installments of Four Hundred Seventeen and 00/100 Dollars ($417.00) in advance
at the time and in the manner provided in the Lease during said period, (b) for
the period commencing on the day next succeeding the end of the 1st Storage
Space Rental Period and ending on the eighth (8th) anniversary of the Storage
Space Commencement Date, both dates inclusive (the “2nd Storage Space Rental
Period”), at the annual fixed rental rate of Five Thousand Four Hundred
Thirty Six and 00/100 Dollars ($5,436.00), payable in equal monthly
installments of Four Hundred Fifty Three and 00/100 Dollars ($453.00) in
advance at the time and in the manner provided in the Lease during said period,
and (c) for the period commencing on the day next succeeding the end of the 2nd
Storage Space Rental Period and ending on the Fixed Expiration Date, both dates
inclusive, at the annual fixed rental rate of Five Thousand Eight Hundred Sixty
Eight and 00/100 Dollars ($5,868.00), payable in equal monthly installments of
Four Hundred Eighty Nine and 00/100 Dollars ($489.00) in advance at the time
and in the manner provided in the Lease during said period. 


          Section
3.2. Effective as of the Storage Space Commencement Date, the Lease shall be
modified and amended, with respect to the Storage Space only, as follows: 


          (a) With respect
to the Storage Space only, the term “Base Tax Year” shall mean the
fiscal tax year commencing July 1, 2009 and ending June 30, 2010. 


          (b) With
respect to the Storage Space only, the term “Tenant’s Tax Share” shall
mean 0.0151% %. 


          With
respect to the Storage Space only, the term “Tenant’s Share” shall mean
0.0%. 


- 2 -





          Section
3.3. From and after the Storage Space Commencement Date, Tenant shall pay as
Additional Rent the Tax Payment with respect to the Storage Space, as defined
and provided in the Lease, as modified by the provisions of Section 3.2
hereof, at the same time and in the same manner provided in the Lease for the
payment of said Tax Payment with respect to the Original Premises. 


Article IV. 

Use of Storage Space


          Section
4.1. Tenant agrees to accept the Storage Space in its “AS IS” condition on the
Storage Space Commencement Date, and further agrees that Landlord shall not be
required to perform any work, provide any funds, supply any materials, or incur
any expense to prepare the Storage Space for Tenant’s use and occupancy. The
acceptance of possession of the whole or any part of the Storage Space by
Tenant shall be conclusive evidence, as against Tenant, that Tenant accepts
possession of the same and that the Storage Space was in good and satisfactory
condition at the time such possession was so taken. 


          Section
4.2. As of the Storage Space Commencement Date, the Storage Space shall be
deemed to be a part of the Premises for all purposes of the Lease, except that
(i) Tenant shall use the Storage Space only as dead storage space for the sole
purpose of storing furniture, equipment, records, files and other items in
connection with the business conducted by Tenant at the Original Premises pursuant
to the Lease and for no other purpose, and shall not permit any person to
occupy the Storage Space other than as incidental to placing or retrieving
items stored in such Storage Space, (ii) Tenant shall not sublease all or any
portion of the Storage Space or allow the same to be used by others except in
connection with a permitted subletting of the Original Premises, (iii) Tenant
shall not be required to pay the Operating Payment, the Insurance Payment or
the Energy Payment with respect to the Storage Space, and (iv) as otherwise set
forth herein. 


Article V. 

Services by Landlord to Storage Space


          Section
5.1. Tenant acknowledges and agrees that Landlord shall not supply any services
to the Storage Space, including, without limitation, air-conditioning, heat,
hot or cold water, janitorial service or any other similar or dissimilar
service or utility (other than electricity in accordance with the terms of Article
VI hereof). Landlord shall not be liable in any respect for the failure or
stoppage of services that Landlord may be obligated to supply, if any, and any
such failure or stoppage shall not be construed as an eviction or constructive
eviction of Tenant or as grounds for the abatement of any item of Fixed Rent or
Additional Rent in respect of the Storage Space and shall not relieve Tenant
from the fulfillment of any term, covenant or agreement under the Lease as
hereby amended. 


Article VI. 

Electricity


          Section
6.1. Landlord shall furnish electric current to the Storage Space through
available Building Systems for the operation by Tenant of standard lighting
fixtures in the 


- 3 -





Storage Space, which Landlord shall furnish on a “rent inclusion” basis
(that is, there shall be no separate charge to Tenant for such electric current
by way of measuring such electricity service on any meter), and otherwise in
accordance with, and subject to, the terms and conditions of Sections 13.1
and 13.4 of the Lease. In consideration thereof, the Fixed Rent with
respect to the Storage Space set forth in this Amendment includes One and
75/100 Dollars ($1.75) per rentable square foot (such amount, the “Storage
Space Electricity Inclusion Factor”). The Storage Space Electricity
Inclusion Factor shall be collectible by Landlord in the same manner as Fixed
Rent. 


Article VII. 

Brokers


          Section
7.1. Each party represents and warrants to the other that it has not dealt with
any broker or Person in connection with this Amendment other than L&L
Acquisitions, LLC and Colliers ABR (collectively, the “Broker”). The
execution and delivery of this Amendment by each party shall be conclusive
evidence that such party has relied upon the foregoing representation and
warranty. Tenant shall indemnify and hold Landlord harmless from and against
any and all claims for commission, fee or other compensation by any Person
(other than the Broker) who shall claim to have dealt with Tenant in connection
with this Amendment and for any and all costs incurred by Landlord in
connection with such claims, including, without limitation, reasonable
attorneys’ fees and disbursements. Landlord shall pay the Broker any
commission, fee or compensation due the Broker in connection with this
Amendment pursuant to a separate agreement and shall indemnify and hold Tenant
harmless from and against any and all claims for commission, fee or other
compensation by the Broker and any Person who shall claim to have dealt with
Landlord in connection with this Amendment and for any and all costs incurred
by Tenant in connection with such claims, including, without limitation,
reasonable attorneys’ fees and disbursements. This provision shall survive the
expiration or earlier termination of this Amendment or the Lease. 


Article VIII. 

Recapture


          Section
8.1. If at any time during the Storage Space Term, Landlord shall determine, in
its sole and absolute discretion, that Landlord’s recapture of the Storage
Space shall be necessary or desirable (i) in order to comply with any
Requirement or (ii) for any other reason other than for the purpose of leasing
such Storage Space to another tenant of the Building, Landlord shall have the
right, upon written notice to Tenant (the “Termination Notice”), to
recapture the Storage Space and terminate the Lease in respect of the Storage
Space herein demised (the “Termination Option”). If Landlord exercises
the Termination Option, the Lease, in respect of the Storage Space only, shall
terminate as of the date (the “Termination Date”) set forth in the
Termination Notice, which date shall not be earlier than thirty (30) days or
later than ninety (90) days following the date of the Termination Notice, and
the Termination Date shall be deemed to be the Expiration Date of the Lease in
respect of the Storage Space as aforesaid. On the Termination Date, Tenant shall
vacate, quit and surrender to Tenant possession of the Storage Space broom
clean, free and clear of all subtenants and occupants, with all of the Tenant’s
Property and any property of any subtenant or other occupant removed therefrom,
and otherwise in accordance with the terms and conditions of the Lease.
Notwithstanding the exercise of the Termination Option by Landlord, Tenant
shall remain liable for any obligations under the terms, 


- 4 -





covenants and conditions of the Lease as hereby amended in respect of
the Storage Space which have accrued up to the Termination Date, which
obligations shall survive the recapture of the Storage Space by Landlord and
termination of the Lease in respect of the Storage Space, and any other rights,
obligations and liabilities in respect of the Storage Space which expressly
survive the expiration or earlier termination of this Amendment or the Lease. 


Article IX.


Miscellaneous


          Section
9.1. Submission of this Amendment by Landlord is not an offer to enter into
this Amendment. Neither Landlord nor Tenant shall be bound by this Amendment
until Landlord and Tenant have executed and delivered the same to the other
party. 


          Section
9.2. Tenant represents and warrants that its execution and delivery of this
Amendment has been duly authorized, that the individual executing this
Amendment on behalf Tenant has been duly authorized to do so, and that no
further action or approval is required by Tenant with respect to this
transaction. 


          Section
9.3. This Amendment may be executed in counterparts, each of which when so
executed and delivered shall be deemed an original, but all of which taken
together shall constitute but one and the same instrument. 


          Section
9.4. This Amendment shall be construed and enforced in accordance with the laws
of the State of New York, without regard to principles of conflict of law. 


          Section
9.5. The covenants, conditions and agreements contained in this Amendment shall
bind and inure to the benefit of Landlord and Tenant and their respective
heirs, distributes, executors, administrators, successors and assigns, subject
in all respects to the terms and conditions of the Lease. 


          Section
9.6. Except as amended and modified hereby, all terms of the Lease as
heretofore in effect shall remain in full force and effect, and, as amended and
modified hereby, are hereby ratified and confirmed in all respects. 


          Section
9.7. This Amendment, together with the Lease, constitutes the entire agreement
of the parties hereto with respect to the matters stated herein and may not be
amended or modified unless such amendment or modification shall be in writing
and signed by the party against whom enforcement is sought. 


 [REMAINDER OF THIS PAGE INTENTIONALLY LEFT
BLANK]


- 5 -





Signature Page to Third Amendment 


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


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 LANDLORD:

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 PPF OFF TWO
 PARK AVENUE OWNER, LLC,

 
	
  

 	
 a Delaware
 limited liability company

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By: PPF OFF
 TWO PARK AVENUE, LLC, a

 
	
  

 	
 Delaware
 limited liability company, its Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By: PPF OFF,
 LLC, a Delaware limited liability

 
	
  

 	
  

 	
 company, its
 Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By: PPF OP,
 LP, a Delaware limited

 
	
  

 	
  

 	
  

 	
 partnership,
 its Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
 By: PPF
 OPGP, LLC, a Delaware

 
	
  

 	
  

 	
  

 	
  

 	
 limited
 liability company, its General

 
	
  

 	
  

 	
  

 	
  

 	
 Partner

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: PRIME
 PROPERTY FUND,

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 LLC, a
 Delaware limited

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 liability
 company, its Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: MORGAN
 STANLEY

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 REAL ESTATE
 ADVISOR,

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 INC., a
 Delaware corporation,

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 its Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By:

 	
   /s/
 Amanda J. Voetsch

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Name: Amanda
 J. Voetsch

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Title: Vice
 President

 	
  

 






	
  

 	
  

 	
  

 	
  

 
	
  

 	
 TENANT:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 COTY INC.,

 
	
  

 	
 a Delaware
 corporation

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
 Name:

 	
  

 
	
  

 	
  

 	
 Title:

 	
  

 









Signature Page to Third Amendment 


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


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 LANDLORD:

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 PPF OFF TWO
 PARK AVENUE OWNER, LLC, a

 
	
  

 	
 Delaware
 limited liability company

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By: PPF OFF
 TWO PARK AVENUE, LLC, a

 
	
  

 	
 Delaware
 limited liability company

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By: PPF OFF,
 LLC, a Delaware limited

 
	
  

 	
  

 	
 liability
 company, its Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By: PPF OP,
 LP, a Delaware limited

 
	
  

 	
  

 	
  

 	
 partnership,
 its Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
 By: PPF
 OPGP, LLC, a Delaware

 
	
  

 	
  

 	
  

 	
  

 	
 limited
 liability company, its General

 
	
  

 	
  

 	
  

 	
  

 	
 Partner

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: PRIME
 PROPERTY FUND,

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 LLC, a
 Delaware limited

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 liability
 company, its Member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: MORGAN
 STANLEY

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 REAL ESTATE
 ADVISOR,

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 INC., a
 Delaware corporation

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By:

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Name:

 	
 Amanda J.
 Voetsch

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Title:

 	
 Vice
 President

 	
  

 






	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 TENANT:

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 COTY INC.,

 
	
  

 	
 a Delaware
 corporation

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
   /s/
 James E. Shiah

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
 Name:

 	
 James E.
 Shiah

 	
  

 
	
  

 	
  

 	
 Title:

 	
 Senior Vice
 President

 	
  

 









EXHIBIT A


(see attached)






[Floor Plan]