Exhibit 10.4


	
 


	





	
 


	
Agreement of Lease


	
 


	
between


	
 


	
Empire State Building Company L.L.C., as Landlord


	
 


	
and


	
 


	
Coty Inc., as Tenant


	
 


	
dated as of July 14, 2008


	
 


	
for


	
 


	
the entire 14th Floor and a portion of the 15th Floor


	
 


	
at the Empire State Building


	
350 Fifth Avenue


	
New York, New York


	
 


	
and ancillary agreements


	
 


	





	
 


	
Loeb & Loeb LLP


	
345 Park Avenue


	
New York, New York 10154


	
(212) 407-4000












Table of Contents


	
 

	
 

	
 


	
1.

	
Lease Digest

	
 


	
 

	
 

	
 


	
2.

	
Agreement of
Lease dated as of July 14, 2008 between Empire State Building Company L.L.C.
(“Landlord”), as landlord, and Coty Inc. (“Tenant”), as tenant

	
 


	
 

	
 

	
 


	
3.

	
Escrow
Letter dated July 14, 2008 among Landlord, as landlord, Tenant, as tenant,
and David J. Bleckner, P.C., as escrowee

	
 


	
 

	
 

	
 


	
 

	
- including
a copy of the check for the Escrow Deposit

	
 


	
 

	
 

	
 


	
4.

	
Non-Disturbance
and Attornment Agreement dated as of July 14, 2008 between Empire State Land
Associates L.L.C., as fee owner, and Tenant, as subtenant, recorded in the
Office of the City Register of the City of New York (the “City Register’s
Office”) on July 23, 2008 as CRFN 2008000293470

	
 


	
 

	
 

	
 


	
5.

	
Subordination,
Non-Disturbance and Attornment Agreement dated as of July 14, 2008 between
Empire State Building Associates L.L.C., as master lessee, and Tenant, as
subtenant, recorded in the City Register’s Office on July 23, 2008 as CRFN
2008000293471

	
 


	
 

	
 

	
 


	
6.

	
Subordination,
Non-Disturbance and Attornment Agreement dated as of July 14, 2008 between
Capital One, N.A., as mortgagee, and Tenant, as tenant, recorded in the City
Register’s Office on July 23, 2008 as CRFN 2008000293472

	
 












AGREEMENT OF LEASE DATED AS OF JULY 14, 2008
BETWEEN
EMPIRE STATE BUILDING COMPANY L.L.C., AS LANDLORD, AND
COTY INC., AS
TENANT,
FOR THE ENTIRE 14TH FLOOR, AND A PORTION OF THE 15TH FLOOR,
AT THE EMPIRE
STATE BUILDING,
350 FIFTH AVENUE, NEW YORK, NEW YORK


LEASE DIGEST


Loeb & Loeb LLP
345 Park Avenue
New York, New York 10154
(212) 407-4000


August 28, 2008






LEASE DIGEST


TABLE OF CONTENTS


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
Page


	
 

	
 

	
 

	





	
 

	
 

	
 

	
 


	
1.

	
Landlord

	
 

	
1


	
 

	
 

	
 

	
 


	
2.

	
Tenant

	
 

	
1


	
 

	
 

	
 

	
 


	
3.

	
Building

	
 

	
1


	
 

	
 

	
 

	
 


	
4.

	
Date of Lease

	
 

	
1


	
 

	
 

	
 

	
 


	
5.

	
Premises

	
 

	
1


	
 

	
 

	
 

	
 


	
6.

	
Term

	
 

	
1


	
 

	
 

	
 

	
 


	
7.

	
Commencement Date

	
 

	
1


	
 

	
 

	
 

	
 


	
8.

	
Expiration Date

	
 

	
1


	
 

	
 

	
 

	
 


	
9.

	
Rent Commencement Date

	
 

	
1


	
 

	
 

	
 

	
 


	
10.

	
First Outside Date

	
 

	
2


	
 

	
 

	
 

	
 


	
11.

	
Self Help Outside Date

	
 

	
2


	
 

	
 

	
 

	
 


	
12.

	
Termination Outside Date

	
 

	
2


	
 

	
 

	
 

	
 


	
13.

	
Fixed Rent

	
 

	
3


	
 

	
 

	
 

	
 


	
14.

	
Electric Service

	
 

	
3


	
 

	
 

	
 

	
 


	
15.

	
Use

	
 

	
3


	
 

	
 

	
 

	
 


	
16.

	
Tenant’s Share

	
 

	
3


	
 

	
 

	
 

	
 


	
17.

	
Operating Expenses

	
 

	
3


	
 

	
 

	
 

	
 


	
18.

	
Escalation Statements

	
 

	
3


	
 

	
 

	
 

	
 


	
19.

	
Payment of Operating
Expenses

	
 

	
4


	
 

	
 

	
 

	
 


	
20.

	
Extension of Payment of
Operating Expenses

	
 

	
4


	
 

	
 

	
 

	
 


	
21.

	
Operating Expenses Audit
Rights; Disputes

	
 

	
4


	
 

	
 

	
 

	
 


	
22.

	
Failure to Bill Operating
Expenses; Waiver of Expense Escalation

	
 

	
5





i






LEASE DIGEST


TABLE OF CONTENTS


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
Page


	
 

	
 

	
 

	





	
 

	
 

	
 

	
 


	
23.

	
Real Estate Taxes

	
 

	
6


	
 

	
 

	
 

	
 


	
24.

	
Payment of Real Estate Taxes

	
 

	
6


	
 

	
 

	
 

	
 


	
25.

	
Extension of Payment of
Real Estate Taxes

	
 

	
6


	
 

	
 

	
 

	
 


	
26.

	
Real Estate Taxes Disputes

	
 

	
6


	
 

	
 

	
 

	
 


	
27.

	
Failure to Bill Real
Estate Tax Escalation; Waiver of Tax Escalation

	
 

	
6


	
 

	
 

	
 

	
 


	
28.

	
ICIP/Building Improvement
Program

	
 

	
7


	
 

	
 

	
 

	
 


	
29.

	
ICIP/Building Improvement
Program Disputes

	
 

	
7


	
 

	
 

	
 

	
 


	
30.

	
Bid Charge

	
 

	
7


	
 

	
 

	
 

	
 


	
31.

	
Broker

	
 

	
7


	
 

	
 

	
 

	
 


	
32.

	
Late Charge

	
 

	
8


	
 

	
 

	
 

	
 


	
33.

	
Landlord’s Notice Address

	
 

	
8


	
 

	
 

	
 

	
 


	
34.

	
Landlord’s Contribution

	
 

	
8


	
 

	
 

	
 

	
 


	
35.

	
Landlord’s Contribution Disputes

	
 

	
9


	
 

	
 

	
 

	
 


	
36.

	
Landlord’s Contribution Escrow Agreement

	
 

	
9


	
 

	
 

	
 

	
 


	
37.

	
Assignment/Subletting

	
 

	
10


	
 

	
 

	
 

	
 


	
38.

	
Recapture

	
 

	
10


	
 

	
 

	
 

	
 


	
39.

	
Profit Splitting

	
 

	
11


	
 

	
 

	
 

	
 


	
40.

	
Affiliate Exception

	
 

	
12


	
 

	
 

	
 

	
 


	
41.

	
Successor Entity Exception

	
 

	
12


	
 

	
 

	
 

	
 


	
42.

	
Exception for Subleasing an Aggregate of 15,000 RSF

	
 

	
13


	
 

	
 

	
 

	
 


	
43.

	
Desk Space Exception

	
 

	
13


	
 

	
 

	
 

	
 


	
44.

	
Charitable Organization
Exception

	
 

	
13





ii






LEASE DIGEST


TABLE OF CONTENTS


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
Page


	
 

	
 

	
 

	





	
 

	
 

	
 

	
 


	
45.

	
Alterations

	
 

	
14


	
 

	
 

	
 

	
 


	
46.

	
Restoration

	
 

	
14


	
 

	
 

	
 

	
 


	
47.

	
Landlord’s Review of Tenant Plans

	
 

	
15


	
 

	
 

	
 

	
 


	
48.

	
SNDA

	
 

	
15


	
 

	
 

	
 

	
 


	
49.

	
Landlord’s Failure to
Repair/Provide Services

	
 

	
15


	
 

	
 

	
 

	
 


	
50.

	
Rent Abatement for Failure
of Services

	
 

	
16


	
 

	
 

	
 

	
 


	
51.

	
Insurance

	
 

	
17


	
 

	
 

	
 

	
 


	
52.

	
Signage

	
 

	
17


	
 

	
 

	
 

	
 


	
53.

	
Defaults

	
 

	
18


	
 

	
 

	
 

	
 


	
54.

	
Renewal Option

	
 

	
18


	
 

	
 

	
 

	
 


	
55.

	
Determination of Fair
Market Rental Rate

	
 

	
18


	
 

	
 

	
 

	
 


	
56.

	
Occupancy Condition to
Renewal Option

	
 

	
19


	
 

	
 

	
 

	
 


	
57.

	
Expansion Option

	
 

	
19


	
 

	
 

	
 

	
 


	
58.

	
Right of First Offer

	
 

	
22


	
 

	
 

	
 

	
 


	
59.

	
Delays in Possession of
Option or ROFO Space

	
 

	
24


	
 

	
 

	
 

	
 


	
60.

	
Initial Leasing of Vacant
Space by Landlord

	
 

	
25


	
 

	
 

	
 

	
 


	
61.

	
Occupancy Condition to
Expansion and ROFO Rights

	
 

	
25





iii






LEASE DIGEST1


	
 

	
 


	
LANDLORD:

	
EMPIRE STATE BUILDING COMPANY L.L.C., a New
York limited liability company 


	
 

	
 


	
TENANT:

	
COTY INC., a Delaware corporation


	
 

	
 


	
BUILDING:

	
Empire State Building, 350 Fifth Avenue,
New York, New York 10118


	
 

	
 


	
DATE OF
LEASE:

	
July 14, 2008


	
 

	
 


	
PREMISES:

(Preamble)

	
The entire rentable area of the 14th floor
of the Building, consisting of 51,527 rentable square feet (“RSF”),
and a portion of the 15th floor of the Building, consisting of 36,329 RSF.
The total RSF of the Premises is 87,856.


	
 

	
 


	
TERM:

(Preamble)

	
Approximately fifteen (15) years.


	
 

	
 


	
COMMENCEMENT
DATE:

(Article 1A)

	
The 31st day after the date when the last
of the following has occurred: (i) Landlord delivers vacant possession of the
Premises to Tenant and (ii) Landlord substantially completes Landlord’s Work
(as defined in Article 23B).2 


	
 

	
 


	
EXPIRATION DATE:

(Preamble and Article 1E)

	
The last day of the 15th Lease Year. The
term “Lease Year” means the twelve (12) months commencing on the Rent
Commencement Date (as hereinafter defined) (or if the Rent Commencement Date
is not the first day of a month, the first day of the month following the
month in which occurs the Rent Commencement Date) and each subsequent period
of twelve (12) months.


	
 

	
 


	
RENT:

	
The date which is ten (10) months after the
Commencement








	
 

	
 


	





	
1

	
This digest is a general summary of Tenant’s rights and
obligations under the referenced provisions of the Lease. If any questions or
issues arise thereunder, the actual provisions of the Lease should be analyzed
and consulted. Article references are to the Lease.


	
2

	
Pursuant to Article 1A, the Commencement Date is also
contingent upon Landlord delivering certain non-disturbance agreements to
Tenant from each of (i) Landlord’s lender (i.e., Capital One, N.A.), (ii) the
ground lessee of the Building (i.e., Empire State Building Associates L.L.C.)
and (iii) the fee owner of the Building (i.e., Empire State Land Associates
L.L.C.). Landlord delivered such non-disturbance agreements to Tenant at the
mutual execution and delivery of the Lease and related documents, which was
held at Tenant’s Two Park Avenue offices on July 14, 2008. The non-disturbance
agreements were recorded in the Office of the City Register of the City of New
York on July 23, 2008.





1









	
 

	
 


	
COMMENCEMENT
DATE:

(Article 2A)

	
Date.


	
 

	
 


	
FIRST OUTSIDE DATE:

(Article 1F(i))

	
If Landlord fails to substantially complete
Landlord’s Work on or before November 14, 2008,3 then Tenant shall
be entitled to a rent credit against fixed annual rent (without electricity)
in the amount of $12,516.47 per day for each day after November 14, 2008 that
Landlord fails to substantially complete Landlord’s Work. 


	
 

	
 


	
SELF HELP OUTSIDE
DATE:

(Article 1F(ii))

	
If Landlord fails to substantially complete
Landlord’s Work on or before December 14, 2008, then Tenant may, at any time
on or before February 12, 2009, give Landlord written notice that, unless
Landlord substantially completes Landlord’s Work within ten (10) days after
such notice has been given to Landlord, Tenant shall perform the work necessary
to complete Landlord’s Work. Such notice shall specify (in bold face type and
capital letters) that in the event Landlord does not substantially complete
Landlord’s Work within such ten (10) day period, then Tenant shall exercise
its “self-help” rights under subparagraph (ii) of Article 1F with respect to
Landlord’s Work. Landlord shall reimburse Tenant for the commercially
reasonable out-of-pocket costs incurred by Tenant in performing such work
pursuant to Article 1F(ii). If Tenant exercises such self-help rights, then
(i) the rent credit described above in the “First Outside Date” section of
this digest will only continue until the earlier to occur of (x) the date
that Tenant substantially completes Landlord’s Work or (y) the date (as same
may be extended as a result of force majeure) on which Tenant should have
completed Landlord’s Work using commercially reasonable efforts to do so, and
(ii) Tenant shall no longer have the right to cancel the Lease as described
below in the “Termination Outside Date” section of this digest.


	
 

	
 


	
TERMINATION
OUTSIDE DATE:

(Article 1F(iii))

	
If Landlord fails to substantially complete
Landlord’s Work on or before January 14, 2009 (and provided Tenant has not
exercised its self-help rights described above in the “Self Help Outside
Date” section of this digest), then Tenant may terminate the Lease on ten
(10) days’ prior written notice to Landlord given at any time on or before
March 15, 2009, and unless Landlord substantially completes Landlord’s Work
within ten 








	
 

	
 


	





	
3

	
Specific dates have been used in this digest in lieu of
defined terms (e.g., Effective Date, First Outside Date, Self Help Outside Date or 60 days after the Self Help Outside
Date), to the extent same were known at the time this digest was prepared.





2









	
 

	
 

	
 


	
 

	
(10) days after such notice has been received by Landlord, the term
of the Lease shall end as if January 14, 2009 was the date originally set in
the Lease for the expiration of the term (except that Landlord shall
reimburse Tenant for the reasonable out-of-pocket costs to Tenant of
all plans and specifications prepared for Tenant in connection with the Lease
and the Premises, up to $351,424.00, pursuant to Article 1F(iii)).


	
 

	
 

	
 


	
FIXED RENT:



(Article 2A)

	
(a)

	
From the Rent Commencement Date through the last day of the fifth
Lease Year: $4,568,512.00 per annum ($380,709.33 per month);


	
 

	
 


	

(b)

	

From the first day of the sixth Lease Year though the last day of the
tenth Lease Year: $4,919,936.00 per annum ($409,994.67 per month); and


	
 

	
 

	
 


	
 

	
(c)

	
From the first day of the eleventh Lease Year though the last day of
the fifteenth Lease Year: $5,271,360.00 per annum ($439,280.00 per month).


	
 

	
 


	
ELECTRIC
SERVICE:



(Article 3)

	
Furnished on a submetering basis at Landlord’s Cost (as defined in
Article 3A(i)), plus 6%.


	
 

	
 


	
USE:

(Article 1G)

	
Offices relating to the conduct of Tenant’s, or any permitted
occupant’s, business and uses incidental and related thereto.


	
 

	
 


	
TENANT’S SHARE:

	
3.2293%


	
 

	
 


	
(Article
2B(i)(b), with

respect to operating

expenses escalations, and

Article 2C(i)(b), with

respect to tax escalations)

	
 


	
 

	
 


	
OPERATING
EXPENSES:



(Article 2B)

	
Tenant pays, as additional rent, Tenant’s Share of any increases in
Expenses (as defined in Article 2B(i)(e)) each comparative year over the
base calendar year 2009.


	
 

	
 


	
ESCALATION
STATEMENTS:

(Articles 2B(i)(f) and
2B(iv))

	
The Escalation Statements (as defined in Article 2B(i)(f)) setting
forth the amount of Expenses payable by Tenant for a specified comparative
year shall be (i) in writing, (ii) signed by Landlord, (iii) substantially in
the form attached to the Lease as Exhibit F and (iv) prepared based on
information and computations made in accordance with GAAP by a certified
public accountant.





3









	
 

	
 


	
PAYMENT OF
OPERATING
EXPENSES:

	
The first payment of additional rent for
the entire first comparative year shall be payable within thirty (30) days
after the Escalation Statement relating thereto is delivered to Tenant.


	
 

	
 


	
(Article
2B(ii))

	
Beginning on the first day of the first
comparative year and thereafter, all monthly installments of rent shall
include one-twelfth (1/12th) of the then current annual amount of such
adjustment for Expenses on account of Expenses for the next ensuing
comparative year (and such amount shall be payable by Tenant until Landlord
delivers the next Escalation Statement to Tenant).


	
 

	
 


	
 

	
Within thirty (30) days after Landlord
delivers the next Escalation Statement to Tenant, Tenant shall pay to
Landlord on account of additional rent for the comparative year to which such
Escalation Statement relates, an amount equal to the excess of additional
rent due on account of increases in Expenses over the amount collected from
Tenant on account thereof during the preceding year. If there shall have been
a reduction in the Expenses during any ensuing comparative year, the excess
of the amount collected by Landlord over the amount paid by Tenant on account
of such comparative year shall be credited against amounts payable by Tenant
for the current comparative year (or if the term of the Lease shall have expired,
refunded to Tenant).


	
 

	
 


	
 

	
If any Escalation Statement is furnished to
Tenant after the commencement of the applicable comparative year, there also
shall, within thirty (30) days, be paid by Tenant to Landlord an amount equal
to the portion of such monthly adjustments allocable to the part of such
comparative year which shall have lapsed prior to the first day of the
calendar month next succeeding the calendar month in which such Escalation
Statement is furnished to Tenant.


	
 

	
 


	
EXTENSION OF
PAYMENT OF
OPERATING
EXPENSES:

(Article 2B(ii))

	
If Landlord fails to substantially complete
Landlord’s Work on or before November 14, 2008, then Tenant’s obligation to
begin paying operating expenses escalation additional rent shall be extended
beyond the first day of the first comparative year by one day for each day
after November 14, 2008 that Landlord fails to substantially complete
Landlord’s Work.


	
 

	
 


	
OPERATING EXPENSES
AUDIT RIGHTS;
DISPUTES:

(Article 2B(iv) and
(v))

	
All Escalation Statements delivered by
Landlord to Tenant shall constitute a final determination of the applicable
Expenses, unless (i) within two hundred seventy (270) days after they are
furnished (time being of the essence), Tenant gives a notice (“Audit Notice”)
to Landlord that Tenant wishes to examine





4









	
 

	
 


	
 

	
Landlord’s books and records with respect
thereto and (ii) within sixty (60) days after the completion of any such
examination (time being of the essence), Tenant gives a notice to Landlord
that it disputes the accuracy or appropriateness of the statement which is
the subject of such examination (which notice shall specify the particular
respects in which such statement is inaccurate or inappropriate).


	
 

	
 


	
 

	
Tenant may audit and dispute the base year
at the same time it disputes or audits the first comparative year.4 


	
 

	
 


	
 

	
Pending the resolution of any such audit
and dispute, Tenant shall pay the additional rent to Landlord in accordance
with the statements furnished by Landlord (without prejudice as to any such
dispute).


	
 

	
 


	
 

	
After payment of such additional rent,
Tenant may examine Landlord’s relevant books and records during regular
business hours, provided such examination is commenced within forty-five
(45) days after the giving of an Audit Notice.


	
 

	
 


	
 

	
If it is determined that the Expenses
reported by Landlord are in excess of one hundred five (105%) percent of the
actual amount of Expenses, then if (i) Landlord fails to dispute such
finding, (ii) Landlord agrees with such finding, (iii) following a dispute of
Tenant’s examination by Landlord the reconciled audits still evidence that
Tenant was overcharged by more than five percent (5%) or (iv) in arbitration
it is determined that Tenant was overcharged by more than five percent (5%),
then Tenant’s reasonable and actual costs of said audit shall be payable by
Landlord within thirty (30) days of demand.


	
 

	
 


	
 

	
Any dispute shall be resolved by
arbitration in accordance with Article 41. All audit and dispute rights of
Tenant shall survive the expiration or earlier termination of the term of the
Lease for a period of two hundred seventy (270) days after the date Tenant
receives the Escalation Statement for the last comparative year (or partial
comparative year) during the term of the Lease.


	
 

	
 


	
FAILURE TO BILL
OPERATING
EXPENSES; WAIVER OF
EXPENSE
ESCALATION:

	
If Landlord fails to bill Tenant for any
Expense escalation for a period of more than eighteen (18) months after the
comparative year in question, such failure shall constitute a waiver of such
Expense escalation, but shall not constitute a waiver of Tenant’s continuing
obligation to pay any other Expense escalation under 








	
 

	
 


	





	
4

	
We strongly recommend that Tenant exercise its audit
rights, particularly with respect to the base year and the first comparative
year.





5









	
 

	
 


	
(ARTICLE
2B(vii))

	
the Lease.


	
 

	
 


	
REAL ESTATE TAXES:

(Article 2C)

	
Tenant pays, as additional rent, Tenant’s
Share of any increases in “real estate taxes” (as defined in Article
2C(i)(e)) each comparative year over the New York City real estate base tax
year commencing July 1, 2008 and ending June 30, 2009.


	
 

	
 


	
PAYMENT OF REAL
ESTATE TAXES:

(Article 2C(ii)(a))

	
Before or after the start of each
comparative year, Landlord shall furnish to Tenant a statement of the real
estate taxes payable for such comparative year, and a statement of the real
estate taxes payable during the base tax year (together with copies of the
relevant tax bills for such comparative year and base tax year). After
Landlord has furnished Tenant with such statement, Tenant shall pay Landlord,
together with the monthly installments of fixed annual rent due on June 1 and
December 1 of each comparative year, an amount equal to one-half (1/2) of the
total sum of the tax escalation additional rent due from Tenant to Landlord
pursuant to such statement for the applicable comparative year. If a
statement is furnished to Tenant after the commencement of the comparative
year in respect of which such statement is rendered, then Tenant shall,
within thirty (30) days thereafter, pay to Landlord an amount equal to those
installments payable during the period prior to the first day of the month
next succeeding the month in which the applicable statement has been
furnished.


	
 

	
 


	
EXTENSION OF
PAYMENT OF
REAL ESTATE TAXES:

(Article 2C(ii)(a))

	
If Landlord fails to substantially complete
Landlord’s Work on or before November 14, 2008, then Tenant’s obligation to
begin paying real estate tax escalation additional rent shall be extended
beyond the first day of the first comparative year by one day for each day
after November 14, 2008 that Landlord fails to substantially complete
Landlord’s Work.


	
 

	
 


	
REAL ESTATE TAXES
DISPUTES:

(Article 2C(ii)(d))

	
The statement of the real estate taxes to
be furnished by Landlord shall be certified by Landlord and shall constitute
a final determination of the real estate taxes for the periods represented
thereby, unless Tenant within one hundred twenty (120) days after they are
furnished shall give a written notice to Landlord that it disputes their
accuracy or their appropriateness, which notice shall specify the particular
respects in which the statement is inaccurate or inappropriate. If Tenant
disputes said statement then, pending the resolution of such dispute, Tenant
shall pay the additional rent to Landlord in accordance with the statement
furnished by Landlord.


	
 

	
 


	
FAILURE TO
BILL:

	
Any delay or failure of Landlord in billing
any tax escalation for 





6









	
 

	
 


	
REAL ESTATE TAX
ESCALATION; WAIVER
OF TAX ESCALATION:

(ARTICLE
2C(ii)(e))

	
a period of more than eighteen (18) months
after the underlying real estate taxes are due and have been billed by the
applicable taxing authority shall constitute a waiver of such tax escalation,
but shall not constitute a waiver of Tenant’s continuing obligation to pay
any other tax escalation due under the Lease.


	
 

	
 


	
ICIP/BUILDING
IMPROVEMENT
PROGRAM:

(Article 2C(ii)(f))

	
Landlord has applied for benefits under the
New York City Industrial Commercial Incentive Program (“ICIP”) in connection
with the Building Improvement Program (as defined in Article 23D). If an
abatement in real estate taxes has been granted for the building project for
the base tax year by exempting from taxation any portion of a physical
assessment pursuant to the ICIP, then when, as and if the abatement is
reduced, the amount of real estate taxes that would have been paid (at the
tax rate in effect for the base tax year) during the base tax year on that
portion of the physical assessment then no longer subject to the ICIP
abatement shall be added to the real estate taxes payable in the base tax
year. If an ICIP abatement is not granted with respect to the base tax year,
then that portion of the real estate taxes payable for the building project
for the base tax year and any comparative year due solely by reason of the
Building Improvement Program shall be excluded from the real estate taxes for
such years when calculating the real estate tax escalation additional rent
payable hereunder.


	
 

	
 


	
ICIP/BUILDING
IMPROVEMENT
PROGRAM DISPUTES:

(Article 2C(ii)(f))

	
Any dispute regarding the ICIP provisions
described above in the “ICIP/Building Improvement Program” section of this
digest shall be resolved by arbitration in accordance with the provisions of
Article 41 (provided that the standard to be applied in such arbitration is
the correct application of New York law with respect to such matter). Pending
the resolution of such dispute, Tenant shall pay Landlord real estate tax
escalation additional rent in accordance with Landlord’s determination of the
amounts due, but without prejudice to Tenant’s position in such dispute. If,
upon resolution of such dispute, it is determined that Tenant overpaid the
amount of any real estate tax escalation additional rent actually due under
the Lease, then the amount of such overpayment shall be promptly refunded to
Tenant with interest thereon at the Applicable Rate (as defined in Article 7)
from the date of such overpayment.


	
 

	
 


	
BID CHARGE:

(Article 2C(i)(e))

	
Included in real estate taxes.


	
 

	
 


	
BROKER:

	
CB Richard Ellis, Inc. and Colliers ABR,
Inc.





7









	
 

	
 


	
(ARTICLE 40)

	
 


	
 

	
 


	
LATE CHARGE:

(Article 44)

	
If Tenant fails to pay all or any part of
any rental for more than five (5) days after the same has become due and
payable, and Landlord thereafter notifies Tenant of such failure, then Tenant
shall pay Landlord, within five (5) days after demand, a late charge of (i)
three ($.03) cents for each dollar of the amount of such rental which shall
not have been paid to Landlord within such five (5) days after becoming due
and payable or (ii) interest on such sum from the date when first due at the
average of all prime rates published from time to time in The Wall
Street Journal (Eastern Edition) plus three percent (3%),
whichever is greater; provided, however, that Landlord shall not be
required to so notify Tenant more than twice in any twelve (12) month period
during the term of the Lease (so that after such second notice such late
charge will be due with respect to any subsequent payment by Tenant which is
more than five (5) days late, during such Lease Year, without any further
notice from Landlord).


	
 

	
 


	
LANDLORD’S NOTICE
ADDRESS:

(Article 28)

	
Empire State Building Company L.L.C.
350 Fifth Avenue, Third Floor
New York, New York
10118
Attention: General Manager


	
 

	
 


	
 

	
With a copy to:


	
 

	
 


	
 

	
Wien & Malkin LLC


	
 

	
250 West 57th Street


	
 

	
New York, New York 10165


	
 

	
Attention: Senior Asset Supervisor


	
 

	
 


	
LANDLORD’S
CONTRIBUTION:

(Article 23C(iii))

	
Landlord shall provide Tenant an allowance
of up to $5,998,300.00 (“Landlord’s Contribution”) to defray the cost of
construction of any Tenant’s Initial Installation Work (as defined in Article
23C(i)) which is performed prior to the second anniversary of the
Commencement Date. Landlord’s Contribution shall be payable against
requisitions accompanied by (i) the certification of Tenant’s architect that
the applicable work has been substantially completed in accordance with plans
and specifications approved by Landlord, (ii) a list specifying the work
performed for which such requisition is being submitted and (iii) partial
conditional waivers of mechanics’ liens for all work for which such
installment of Landlord’s Contribution has been requisitioned, and partial
unconditional waivers of mechanics’ liens for all work for which payments 





8









	
 

	
 


	
 

	
were made by Landlord with respect to
previous requisitions, from each contractor, sub-contractor, vendor and
supplier of labor and material (collectively, “Contractor”) for whom and to
the extent such installment of Landlord’s Contribution is being
requisitioned; provided, however, that Tenant shall not be required to submit
such lien waivers for any Contractor performing work or providing materials
the cost of which shall be less than $10,000.00. Payments on account of
Landlord’s Contribution shall not be payable more frequently than monthly. No
portion of Landlord’s Contribution shall be applied by Tenant against
expenses for furniture, office equipment or other personal property, and not
more than $899,745.00 may be applied by Tenant for architectural and
engineering fees or other soft costs relating to Tenant’s Initial Installation
Work (which payments of Landlord’s Contribution for such architectural and
engineering fees and other soft costs shall be made by Landlord upon Tenant’s
submission of invoices therefor (whether before or after the Commencement
Date) which have been approved for payment by an officer of Tenant).


	
 

	
 


	
LANDLORD’S
CONTRIBUTION
DISPUTES:

(Article 23C(iii))

	
Any dispute regarding Landlord’s
Contribution shall be resolved by expedited arbitration in accordance with
the provisions of Article 41. In the event that any such dispute shall be
resolved in Tenant’s favor so that Landlord shall be obligated to pay Tenant
all or any part of Landlord’s Contribution, but Landlord fails to do so
within fifteen (15) days after such decision is rendered in such arbitration
proceeding, then Tenant shall be entitled to a rent credit (i.e., Tenant may
offset such amount due Tenant against rent) in the amount of the portion of
Landlord’s Contribution which Landlord has failed to pay Tenant (within such
fifteen (15) day period) in accordance with the decision in such arbitration
proceeding, with interest at the Applicable Rate from the date such sums were
to have been reimbursed or paid to Tenant from Landlord’s Contribution until
the date recovered in full by Tenant and with all reasonable legal fees
incurred by Tenant in connection with such dispute (provided Tenant furnishes
Landlord with paid invoices or other reasonably sufficient evidence of such
fees).


	
 

	
 


	
LANDLORD’S
CONTRIBUTION
ESCROW AGREEMENT:

	
As security for the payment to Tenant of
any portion of Landlord’s Contribution remaining unpaid if and when
Landlord’s lender, Capital One, N.A., succeeds to the interest of Landlord
under the Lease, Landlord agreed to deposit the full amount of Landlord’s
Contribution in escrow with Landlord’s counsel to be drawn upon by Tenant, in
the event of such succession, pursuant to the terms of that certain letter
agreement dated July 14, 2008 between Landlord and Tenant.





9









	
 

	
 


	
ASSIGNMENT/
SUBLETTING:

(Article 4A and D)

	
Except as otherwise provided in Article 4,
Tenant shall not assign, mortgage or encumber the Lease, nor sublet, or
suffer or permit the Premises or any part thereof to be used or occupied by
others, without the prior written consent of Landlord in each instance.


	
 

	
 


	
 

	
If Landlord does not exercise its recapture
rights as provided below in the “Recapture” section of this digest, or if
such recapture rights are not applicable, then Landlord will not unreasonably
withhold, condition or delay its consent to Tenant’s request for consent to a
specific assignment or subletting (provided that Tenant is not in default
under the Lease beyond any notice and/or grace period at the time Tenant
requests Landlord’s consent to any such subletting or assignment).5 


	
 

	
 


	
RECAPTURE:

(Article 4B(i) and (ii))

	
All of the Premises.
If Tenant desires to assign the Lease or to sublet all or substantially all
of the Premises, it shall first request, in writing, Landlord’s consent (and
include with such request the information and documents described in Article
4C). Landlord may then, by notice given within thirty (30) days after the
receipt of Tenant’s request for consent, terminate the Lease on the date (the
“Termination Date”) which shall be the later to occur of (i) the effective
date of the proposed transaction, as specified by Tenant, and (ii) the date
which is sixty (60) days following the date Landlord’s termination notice is
given.


	
 

	
 


	
 

	
An Entire Floor for the Balance of the Term.
If Tenant desires to sublet in a single transaction, all or substantially all
of the 14th Floor Portion, all or substantially all of the 15th Floor
Portion, or all or substantially all of all space on any other floor of the
Building which is included in the Premises, for all or substantially all of
the remainder of the term of the Lease, it shall first request, in writing,
Landlord’s consent (and include with such request the information and
documents described in Article 4C). Landlord may then, by notice given within
thirty (30) days after the receipt of Tenant’s request for consent, delete
from the Premises the space proposed to be subleased (the “Deleted Portion”),
on the date which shall be the later to occur of (a) the effective date of
the proposed transaction, as specified by Tenant, and (b) the date which is
sixty (60) days following the date Landlord’s deletion notice is given.








	
 

	
 


	





	
5

	
Please see Articles 4E and 4F for certain restrictions
and conditions applicable to subleasing and assigning (including the
prohibition on any subleasing which results in the occupancy of the Premises by
more than six (6) occupants, including Tenant).





10









	
 

	
 


	
 

	
Condition of Deleted Portion.
Landlord shall accept the Deleted Portion “as is” except that Landlord, at
Landlord’s expense, shall perform all such work and make all such alterations
as may be required (i) to demise the Deleted Portion from the remainder of
the Premises (including, without limitation, separation of building systems
and associated wiring, duct work and piping, and removal of any internal
staircase and closing up of the slab) to permit lawful occupancy and (ii) if
applicable, to make the floor properly and legally usable as a multi-tenanted
floor including, without limitation, any work needed to restore public
corridors and bathrooms (using Building standard fixtures and finishes);
provided, however, if Tenant agreed to perform such work, at its expense,
under the terms of the proposed assignment or sublease, then Landlord shall
do so at Tenant’s reasonable expense, which shall be deemed additional rent
under the Lease and shall be due within thirty (30) days after demand,
accompanied by supporting documentation therefor.


	
 

	
 


	
PROFIT
SPLITTING:



(Article 4J)

	
If Tenant assigns the Lease or subleases
all or any portion of the Premises (except with respect to an assignment or
sublease which does not require Landlord’s consent under paragraphs G
(Affiliates), H (Successor Entity), I (the 15,000 RSF flexible sublet), P
(Desk Space) or Q (Charitable Organizations) of Article 4), Tenant shall pay
to Landlord the following sums: (a) with respect to a sublease, fifty percent
(50%) of (1) any rent or other consideration (including, without limitation,
sums for fixtures, furniture, equipment and other personal property less, in
the case of a sale thereof, the then unamortized value thereof on Tenant’s
federal tax returns) paid to Tenant by any subtenant which (after first
deducting from such rent or other consideration the costs of Tenant, if any,
in effecting the subletting, including reasonable alteration costs,
commissions and legal fees) is in excess of (2) the rent allocable (strictly
on a per square foot basis, without regard to any other allocation of value,
by dividing aggregate consideration by the RSF of the area so sublet) to the
subleased space which is then being paid by Tenant to Landlord pursuant to
the terms hereof and (b) with respect to an assignment of the Lease, fifty
percent (50%) of any other profit or gain (after first deducting from such
profit or gain any necessary expenses incurred) realized by Tenant from any
such assignment. All such sums payable by Tenant shall be payable to Landlord
as additional rent as and when received by Tenant (and shall be payable to
Landlord only after Tenant shall have first deducted and recovered in full
the costs described above and certain unamortized out-of-pocket costs to
Tenant of Tenant’s Initial Installation Work as provided in 





11









	
 

	
 


	
 

	
subparagraph (ii) of Article J).


	
 

	
 


	
AFFILIATE
EXCEPTION:



(Article 4G)

	
The provisions of paragraph B of Article 4
(regarding recapture), and the provisions of paragraph J of Article 4
(regarding profit splitting), shall not apply to, and Landlord’s consent
shall not be required with respect to (i) the use by an Affiliate (as
hereinafter defined) of all or any portion of the Premises or (ii) an assignment
of the Lease or a sublease of all or any portion of the Premises to an
Affiliate, provided that Tenant complies with certain conditions and
provisions of Article 4 as set forth in Article 4G.


	
 

	
 


	
 

	
Tenant shall give Landlord at least ten
(10) days’ prior written notice of any such transaction accompanied by (i) a
certified statement by an officer of Tenant that the proposed assignee or
sublessee, as the case may be, is an Affiliate (and describing the
relationship) and (ii) the written statement by Tenant confirming that Tenant
will remain primarily liable, jointly and severally with any transferee or
assignee, for the obligations of Tenant under the Lease.


	
 

	
 


	
 

	
The term “Affiliate” means any entity,
directly or indirectly, controlled by, controlling or under common control
with Tenant.


	
 

	
 


	
SUCCESSOR
ENTITY

EXCEPTION:



(Article 4H)

	
The provisions of paragraph B of Article 4
(regarding recapture), and the provisions of paragraph J of Article 4
(regarding profit splitting), shall not apply to, and Landlord’s consent
shall not be required, with respect to an assignment of the Lease or a
sublease of all but not part of the Premises to any corporation or other
entity (“Successor Entity”) (i) to which all or substantially all of the
assets of Tenant are transferred or sold or (ii) into which or with which
Tenant may be merged or consolidated, provided that (a) the net worth
(determined in accordance with GAAP or if such entity is a foreign entity,
International Accounting Standards) of such transferee or of the resulting
entity, as the case may be, is equal to or greater than the net worth of
Tenant (determined in accordance with GAAP) immediately prior to such
transfer or transaction and (b) any such transaction complies with certain
conditions and provisions of Article 4 as set forth in Article 4H.


	
 

	
 


	
 

	
Tenant shall give Landlord at least ten
(10) days’ prior written notice of any such transaction, which notice shall
contain or be accompanied by (i) the information and documents described in
paragraph C of Article 4, (ii) reasonably satisfactory proof that the above
described net worth and other applicable provisions of paragraph H of Article
4 have been satisfied and (iii) a written 





12









	
 

	
 


	
 

	
statement by Tenant confirming that Tenant
will (if and to the extent it still exists) remain primarily liable, jointly
and severally with any transferee or assignee, for the obligations of Tenant
under the Lease.


	
 

	
 


	
EXCEPTION
FOR

SUBLEASING AN

AGGREGATE OF 15,000

RSF:



(Article 4I)

	
The provisions of paragraphs B, C, E, J, M
and N of Article 4 shall not apply to, and Landlord’s consent shall not be
required, with respect to one or more sub-lettings, from time to time, of up
to an aggregate of 15,000 RSF of the 15th Floor Portion, provided that (i)
Tenant shall give Landlord fifteen (15) days’ prior written notice of any
such transaction, which notice shall include a copy of the executed sublease
agreement for any such transaction, (ii) the term of any such sublease
agreement shall not expire later than the last day of the tenth Lease Year,
(iii) any such subtenant shall be reputable and financially responsible, (iv)
Tenant shall not be in default under the Lease beyond any applicable notice
and/or grace period at the time Tenant enters into any such sublease and (v)
any such transaction shall comply with certain conditions and provisions of
Article 4 as set forth in Article 41.


	
 

	
 


	
DESK SPACE

EXCEPTION:



(Article 4P)

	
The provisions of paragraph B of Article 4
(regarding recapture), and the provisions of paragraph J of Article 4
(regarding profit splitting), shall not apply to, and Tenant shall have the
right, without the prior consent of Landlord, to enter into license
agreements for the use of desk space (“Desk Space”) within the Premises only
with third party outsourced service providers using such Desk Space to
service Tenant or Affiliates at the Premises (collectively, “Desk Space
User”) (provided that Tenant’s third party auditors may also service
Affiliates not located at the Premises), including, but not limited to, marketing
personnel, auditors, consultants, professional advisors, commercial partners,
accountants, mail room facilities, photocopy facilities, messenger facilities
and other vendors, provided that (i) Tenant shall give Landlord at least ten
(10) days’ prior written notice of any such transaction, (ii) such Desk Space
is not separately demised, and (iii) such licensing agreements are not being
entered into to violate the provisions of the Lease prohibiting assignment
and sub-lettings.


	
 

	
 


	
CHARITABLE

ORGANIZATION

EXCEPTION:



(Article 4Q)

	
The provisions of paragraph B of Article 4
(regarding recapture), and the provisions of paragraph J of Article 4
(regarding profit splitting), shall not apply to, and Tenant shall have the
right, without the prior consent of Landlord, to enter into a license
agreement or sublease for the use of office space, which shall be undivided
and consist of less than 2,000 RSF on each of the 14th Floor Portion and the
15th Floor Portion, with 





13









	
 

	
 


	
 

	
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 (i) Tenant shall give
Landlord at least ten (10) days’ prior written notice of any such transaction
and (ii) such occupancy shall comply in all respects with all applicable
laws, rules and regulations (including, without limitation, the provisions of
the New York City Building Code).


	
 

	
 


	
ALTERATIONS:



(Article 8)

	
Tenant shall make no alteration, addition
or improvement to the Premises without the prior written approval of
Landlord. Landlord shall not unreasonably withhold, condition or delay its
approval of nonstructural interior alterations to the Premises, provided that
such alterations do not adversely affect any of the Building systems.
Notwithstanding the foregoing, Landlord’s prior written approval is not
required for any (i) decorative work, such as painting, wall covering,
carpeting and picture hanging or (ii) other alteration not requiring the
approval of, and/or submission of plans to, any governmental agency
(including the Department of Buildings of the City of New York), provided
that such alteration does not adversely affect (other than to a de minimis
extent) the proper functioning of any of the Building systems outside of the
Premises; and provided, further, that all such work shall be performed in
accordance with all applicable provisions of Article 8 (except the
requirement of Landlord’s approval of work or the plans and specifications
for such work; Tenant, nevertheless, is required to provide Landlord with a
reasonably detailed written description of such work, at least ten (10) days
prior to the start thereof). All alterations shall be performed in accordance
with the foregoing and all of the conditions set forth in Article 8.


	
 

	
 


	
RESTORATION:



(Article 8C(ii))

	
Tenant shall have no obligation to restore
the Premises, except for any alterations, additions or improvements which are
not standard for normal office installations (“Specialty Alterations”), e.g.,
reinforced flooring for high density filing, vaults and internal stairways,
which shall be removed by Tenant and any damage repaired, at Tenant’s
expense, prior to the expiration of the term of the Lease; provided, however,
that Landlord shall be required to designate each such Specialty Alteration
that Tenant must remove at the time Landlord approves any such Specialty
Alteration; and provided, further, that Tenant’s request for consent to such
alteration specifies (in bold faced type and capital letters) that Landlord
must so designate. Tenant shall not be required to remove any executive
lavatories installed by Tenant and in no event will any Supplemental A/C Unit
(as 





14









	
 

	
 


	
 

	
defined in Article 31C) be deemed a
Specialty Alteration.


	
 

	
 


	
LANDLORD’S
REVIEW

OF TENANT PLANS: 



(Article 8B(i))

	
General. All
alterations requiring the submission of plans to any governmental agency
(including the Department of Buildings of the City of New York) must be
performed substantially in accordance with plans and specifications first
submitted to Landlord for its prior written approval, which approval shall
not be unreasonably withheld, conditioned or delayed with respect to
nonstructural interior alterations to the Premises that do not adversely
affect (other than to a de minimis extent) the proper functioning of the
Building systems.


	
 

	
 


	
 

	
Deemed Approval.
If Landlord fails to respond to any such request for approval within ten (10)
business days after Landlord’s initial receipt of such plans and
specifications (or within five (5) business days after Landlord’s receipt of
any resubmission of such plans and specifications by Tenant), Tenant may send
Landlord a second request for approval of such plans and specifications. If
Landlord fails to respond to such second request for approval within five (5)
days after its receipt of same, then Landlord shall be deemed to have
approved such plans and specifications (provided such second request
specifies in bold faced type and capital letters that Landlord shall be
deemed to have approved such plans and specifications if Landlord fails to
respond to such second request within such five (5) day period).


	
 

	
 


	
SNDA:



(Article 13)

	
The Lease is subject and subordinate to all
ground leases, mortgages, building loan agreements, leasehold mortgages,
spreader and consolidation agreements and other similar documents and
instruments, which hereafter affect such leases or the real property of which
the Premises form a part; provided that, as a condition precedent to Tenant’s
agreement to subordinate, Landlord shall obtain from the holder of any such
future superior interest, for the benefit of Tenant, a subordination,
non-disturbance and attornment agreement, in the form then customarily used
by it, provided such form is commercially reasonable.


	
 

	
 


	
LANDLORD’S
FAILURE

TO REPAIR/ PROVIDE

SERVICES:



(Articles 10B and 10C)

	
General. Landlord
shall operate, maintain and make all necessary repairs (both structural and
nonstructural) to the Building systems servicing the Premises and to the
public portions of the Building, both exterior and interior, in conformance
with standards applicable to first-class office buildings in mid-town
Manhattan, except such repairs which are necessitated by the acts, omissions
or negligence of Tenant, its agents, employees or contractors (subject,
however, to the 





15









	
 

	
 


	
 

	
waiver of subrogation and right of recovery
provisions Article 42E), which shall be made by Landlord at Tenant’s expense.


	
 

	
 


	
 

	
Self Help. Notwithstanding
anything contained in the Lease to the contrary, if Landlord fails to comply
with such maintenance or repair obligations for a period of fifteen (15) days
after notice of the condition, and such failure materially and adversely
affects Tenant’s use and occupancy of the Premises for the conduct of its
normal business operations, then Tenant, after an additional five (5) days’
prior written notice to Landlord, may perform such maintenance or repair, as
the case may be, for the account of Landlord, pursuant to the terms of
Article 10C, except if such performance (i) affects any Building systems
which do not exclusively service the Premises or affects any area outside of
the Premises which is occupied by another tenant or occupant pursuant to an agreement
with Landlord or (ii) affects any structural portion of the Building. Such
second 5-day notice shall contain a statement (in bold face type and capital
letters) of Tenant’s intention to exercise its “self-help” rights under
Article 10C in the event Landlord does not timely comply with its maintenance
or repair obligations.


	
 

	
 


	
RENT
ABATEMENT

FOR FAILURE OF

SERVICES:



(Article 22D (i) and (ii))

	
Failure of Services for Reasons other than
Force Majeure or a Failure of the Public Utility Provider.
Notwithstanding anything contained in the Lease to the contrary, (i) if as a
result of any repair, alteration, addition or improvement to the Building by
or on behalf of Landlord or (ii) the failure of Landlord to make any repair
or to provide any service to the Premises which Landlord is obligated to make
or provide (as the case may be) under the Lease (except if such failure is
due to force majeure, or a failure by the public utility to provide such
service to the Building, to the extent such service is not otherwise
reasonably available), Tenant and its employees cannot and do not use (except
on an emergency basis) all or any portion of the Premises for the normal
conduct of its business (or for the performance of Tenant’s Initial
Installation Work, as the case may be), for a period of three (3) consecutive
Business Days, then Tenant shall be entitled to an abatement of all rent and
additional rent for each day after such three (3) business day period for
such portion of the Premises which cannot be used as set forth above.


	
 

	
 


	
 

	
Failure of Services due to Force Majeure or
a Failure of the Public Utility Provider.
Notwithstanding anything contained in the Lease to the contrary, if as a
result of the failure of Landlord to make any repair or to provide any
service to the Premises which Landlord is obligated to make or provide (as
the case may 





16









	
 

	
 


	
 

	
be) under the Lease, which failure is due
to force majeure, or a failure by the public utility to provide such service
to the Building (but is not due to any of the causes set forth above in the
“Failure of Services for Reasons other than Force Majeure” section of this
digest), Tenant and its employees cannot and do not use (except on an
emergency basis) all or any portion of the Premises for the normal conduct of
its business (or for the performance of Tenant’s Initial Installation Work,
as the case may be), for a period of ten (10) consecutive days, then Tenant
shall be entitled to an abatement of all rent and additional rent for each
day after such ten (10) day period for such portion of the Premises which
cannot be used as set forth above.


	
 

	
 


	
INSURANCE:

	
See Article 42.


	
 

	
 


	
SIGNAGE:



(Article 27A(i) and (ii))

	
Tenant shall not affix, erect or inscribe
any signs, projections, awnings, signals or advertisements of any kind to any
part of the Premises including the inside or outside of the windows or doors
and will not paint the outside of the doors or the inside or outside of the
windows unless and until the style, size, color, construction and location
thereof have been approved in writing by Landlord (which approval shall not
be unreasonably withheld, conditioned or delayed); provided, however, that no
such approval shall be required with respect to any identity signage which is
not readily visible from the elevators which service the 14th floor or from
any other area outside of the Premises; provided, however, that if and so
long as Coty Inc. or its Affiliate or a Successor Entity is the Tenant under
the Lease, no such approval shall be required with respect to any such
identity signage which is readily visible from the elevators which service
the 14th floor of the Building, provided Tenant gives Landlord at least
fifteen (15) days’ prior written notice of the installation of such signage;
and provided, further, that such signage is professionally prepared and in
keeping with the first class nature of the Building.


	
 

	
 


	
 

	
Notwithstanding anything contained in the
Lease to the contrary, Tenant, at its expense, shall cause Tenant’s entrance
door for any partial floor included in the Premises (other than the 15th
Floor Portion or any other partial floor hereafter included in the Premises
which comprises more than 35% of the RSF of such floor), and any approved
sign on Tenant’s entrance door for such partial floor, to conform to the
standards and specifications for entrance doors and signage set forth in Exhibit
K attached to the Lease, and that any such entrance door and signage
shall be manufactured by a company designated by Landlord in writing and
installed by a company approved by Landlord in writing.





17









	
 

	
 


	
 

	
Tenant shall submit to Landlord for its
prior written approval a proposal regarding the content of any such entrance
door sign, promptly after the execution and delivery of the Lease by Tenant.
Any changes to such approved entrance door sign shall be subject to
Landlord’s prior reasonable approval and to Landlord’s then standard signage
specifications.


	
 

	
 


	
DEFAULTS:



(Article 5)

	
Landlord may terminate the Lease on five
(5) days’ notice: (i) if Tenant fails to pay any installment of fixed annual
rent or additional rent or any other payment when due, and such failure
continues for a period of ten (10) days after notice to Tenant thereof; or
(ii) if Tenant fails to cure a default in the performance of any covenant in
the Lease (except the payment of rent), or any rule or regulation, within
thirty (30) days after written notice thereof from Landlord, or if such
default cannot be completely cured in such time, if Tenant shall not promptly
proceed to cure such default within said thirty (30) days, or shall not
complete the curing of such default with due diligence; or (iii) if a
petition in bankruptcy shall be filed by or against Tenant or if Tenant shall
make a general assignment for the benefit of creditors, or receive the benefit
of any insolvency or reorganization act; or (iv) if a receiver or trustee is
appointed for any portion of Tenant’s property and such appointment is not
vacated within ninety (90) days; or (v) if an execution or attachment shall
be issued under which the Premises shall be taken or occupied or attempted to
be taken or occupied by anyone other than Tenant.


	
 

	
 


	
RENEWAL
OPTION:



(Article 32A)

	
Tenant has the option, exercisable upon
written notice given to Landlord not later than twelve (12) months prior to the
Expiration Date of the initial term of the Lease, to renew the term of the
Lease for one (1) additional period of five (5) years (the “Extended Term”),
upon the same terms as the Lease, except that (i) the fixed annual rental
rate for the Extended Term shall be the fair market rental rate for the then
existing Premises (the “FMR”) as of the first day of the Extended Term
(taking into account all relevant factors), (ii) the base year for
calculating Tenant’s Share of operating expenses shall be the calendar year
during which the commencement date of the Extended Term occurs, (iii) the
base tax year for calculating Tenant’s Share of real estate taxes shall be
the real estate tax year during which the commencement date of the Extended
Term occurs and (iv) the Lease (as extended for the Extended Term) shall
contain no renewal option.


	
 

	
 


	
DETERMINATION
OF

FAIR MARKET RENTAL:

	
The FMR for the Premises effective as of
the commencement of the Extended Term shall be determined during the last six
(6) 





18









	
 

	
 

	
 

	
 


	
RATE:

(ARTICLE 32A(b))

	
months of the initial term of the Lease as
follows. On or before the commencement of such six (6) month period, Landlord
shall notify Tenant of Landlord’s determination of the FMR. Within thirty
(30) days after the later of (i) the commencement of such six (6) month
period or (ii) Tenant’s receipt of Landlord’s determination of the FMR,
Tenant shall respond to Landlord’s notice with Tenant’s determination of the
FMR. Upon receipt of such notice from Tenant, Landlord and Tenant shall seek
to agree as to the amount of the FMR. If they shall not agree as to the FMR
within thirty (30) days after receipt of such notice from Tenant, then the
FMR shall be determined by appraisal as set forth in Article 32A(e).


	
 

	
 


	
OCCUPANCY

CONDITION TO

RENEWAL OPTION:



(Article 32B)

	
The exercise of the renewal option by
Tenant shall be conditioned upon the occupancy of at least seventy-five
percent (75%) of the then RSF of the Premises by Tenant and/or any Affiliate
or Desk Space User (as hereinafter defined).


	
 

	
 


	
EXPANSION
OPTION:



(Article 43A)

	
If, at any time prior to the first
anniversary of the Commencement Date, Landlord desires to lease any space on
the 13th, 16th, 17th, 18th or 19th floor of the Building which contains at
least 7,500 RSF and is then or, within six (6) months following the date
Landlord’s OS Availability Notice (as hereinafter defined) is given, will be
vacant and available for leasing by Landlord (i.e., subject only to
the option of another tenant granted prior to July 14, 2008), then Landlord
shall notify Tenant of such fact, which notice (“Landlord’s OS Availability
Notice”) shall include a description of the layout, configuration and RSF of
such space (an “Option Space”), and the date Landlord reasonably anticipates
the term of the leasing of such space shall commence (the “Anticipated
Commencement Date”). If and so long as Tenant is not in default under the
Lease beyond any applicable notice and/or grace period, Tenant shall have the
one-time option (with respect to such space) to add all but not part of such
space to the Premises pursuant to all of the applicable terms, covenants and
conditions of the Lease (except as otherwise provided in Article 43A),
subject to the following terms and conditions:


	
 

	
 


	
 

	
 

	
(i)

	
Tenant shall give Landlord written notice
of its election so to add all but not part of an Option Space to the
Premises, which notice shall be given no later than thirty (30) days after
the date Landlord’s OS Availability Notice is given.


	
 

	
 

	
 

	
 


	
 

	
 

	
(ii)

	
The term of the leasing of such Option
Space shall





19









	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
commence on
the OS Commencement Date (as hereinafter defined), and shall end on the
expiration or sooner termination date of the initial term of the Lease, or,
if Tenant exercises its renewal option, the expiration or sooner termination
date of the Extended Term. The term “OS Commencement Date” when used herein
shall mean the thirty-first (31st) day after the date when Landlord delivers
vacant possession of an Option Space to Tenant (free of any occupancies or
tenancies) with Landlord’s OS Work (as hereinafter defined) therein
substantially completed in accordance with the terms of Article 43A(ii).


	
 

	
 

	
 

	
 


	
 

	
 

	
(iii)

	
Commencing
on the date which is ten (10) months after the OS Commencement Date (the “OS
Rent Commencement Date”), Tenant shall pay Landlord fixed annual rent for an
Option Space at the same rate per RSF set forth in the Lease with respect to
the original Premises.


	
 

	
 

	
 

	
 


	
 

	
 

	
(iv)

	
Tenant
agrees to accept an Option Space in its then “as is” condition, except that
Landlord shall perform the work set forth in Article 23B (i.e., “Landlord’s
Work”) in such Option Space in accordance with the provisions of Article 23B
(“Landlord’s OS Work”) (taking into account, however, the fact that an Option
Space may not be a full floor and, therefore, (a) Landlord shall perform, at
its own expense, such other work as may be legally necessary or appropriate
in first class office buildings in Midtown Manhattan to lease a partial
floor, such as installing any necessary common corridor and (b) Landlord
shall not perform such Landlord’s Work that is appropriate for a full floor
tenant in a first class office building in Midtown Manhattan, but shall
perform such Landlord’s Work that is appropriate for a partial floor tenant
in such a building). Tenant shall effect all other work necessary for Tenant
to conduct its business in the Option Space and to make such space suitable
and ready for Tenant’s occupancy and use (“Tenant’s OS Initial Installation
Work”).


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
Tenant shall
effect such work in accordance with the provisions of Article 23 which are
applicable to the performance of Tenant’s Initial Installation Work. Tenant
shall also be entitled to a contribution (“Landlord’s OS Contribution”) from
Landlord toward 





20









	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
the cost of
Tenant’s OS Initial Installation Work, which shall be disbursed to Tenant in
accordance with the provisions of Article 23C(iii) (all of which provisions
shall apply to Landlord’s OS Contribution as if it were Landlord’s
Contribution), except that the amount of Landlord’s OS Contribution shall be
an amount equal to the unamortized portion of $50.00 per RSF included in the
Option Space, which unamortized portion shall be calculated based on a
fraction, the numerator of which shall be the number of calendar months remaining
in the term of the Lease after the OS Commencement Date, and the denominator
of which shall be 180 (and the reference to “$899,745.00” in Article 23C(iii)
shall be deemed changed to an amount equal to “fifteen percent (15%) of the
amount of Landlord’s OS Contribution”, as determined hereunder); provided,
however, (1) that if the Option Space consists of the entire RSF of a floor,
then the amount of Landlord’s OS contribution shall be increased by an amount
equal to $254,000.00, and Tenant shall be required to renovate and refurbish
the core men’s and women’s bathrooms in said Option Space (as provided in
Article 23C(viii)); (2) that if the Option Space consists of less than a full
floor, then Landlord shall, within ten (10) months after the date Tenant
exercises its option with respect to such Option Space, perform all work
which is necessary to upgrade the core men’s and women’s bathrooms on such
floor in accordance with the specifications for upgrading such core bathrooms
in the Building which are part of the Building Improvement Program (if and to
the extent such core bathrooms have not already been so upgraded pursuant to
such Building Improvement Program); and (3) that if the sum of (x) the age of
any Building air conditioning unit in such Option Space, plus (y) the number
of full calendar years then remaining in the term of this lease, is more than
twenty (20) years, then the amount of Landlord’s OS Contribution shall be
increased by $4,500 per ton of cooling capacity for each such air conditioning
unit (assuming one (1) ton of cooling capacity for every 430 RSF included in
the Option Space), and Tenant shall be required to replace such unit or
units, as the case may be (as provided in Article 23C(vii)) (except that if
any such unit services such Option Space as well as other adjacent space
which is not included in 





21









	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
such Option
Space, then Landlord shall promptly replace such unit with a new Building
standard air conditioning unit, which shall be of equal or better quality to
the Petra Engineering Industries Co., Model PAHHC62C2).


	
 

	
 

	
 

	
 


	
 

	
 

	
(v)

	
Tenant shall
pay Landlord operating expense escalation additional rent for an Option
Space, in accordance with Article 2B, except that Tenant’s Share shall be
calculated based on a fraction, the numerator of which shall be the RSF of
the Option Space, and the denominator of which shall be 2,720,595.


	
 

	
 

	
 

	
 


	
 

	
 

	
(vi)

	
Tenant shall
pay Landlord real estate tax escalation additional rent for an Option Space,
in accordance with Article 2C, except that Tenant’s Share shall be calculated
based on a fraction, the numerator of which shall be the RSF of the Option
Space, and the denominator of which shall be 2,720,595.


	
 

	
 

	
 

	
 


	
 

	
 

	
(vii)

	
Tenant shall
purchase electricity from Landlord for an Option Space on a submetering
basis, in accordance with the provisions of Article 3, and Landlord, as part
of Landlord’s OS Work, shall install a meter or meters and any and all wiring
and other equipment which is proper and necessary to furnish redistributed
electricity to the Option Space on a submetering basis.


	
 

	
 

	
 

	
 


	
RIGHT OF FIRST

OFFER:



(Article 43B)

	
 

	
If, at any time during the initial term of
the Lease after the first anniversary of the Commencement Date (and
not during the Extended Term), Landlord desires to lease any space on the
13th, 16th, 17th, 18th or 19th floor of the Building which contains at least
7,500 RSF and is then or, within six (6) months following the date Landlord’s
RS Availability Notice (as hereinafter defined) is given, will be vacant and
available for leasing by Landlord (i.e., subject only to the option of
another tenant granted prior to the Effective Date), then Landlord shall
notify Tenant of such fact, which notice (“Landlord’s RS Availability
Notice”) shall include (i) a description of the layout, configuration and RSF
of such space (a “ROFO Space”), (ii) Landlord’s determination of the fair and
reasonable annual market rental rate for the ROFO Space (the “Fair Offer
Rental”), which shall constitute the maximum amount thereof that Landlord may
claim as the Fair Offer Rental for such ROFO Space in any arbitration thereof
(“Landlord’s Maximum Offer Determination”) and (iii) the Anticipated
Commencement Date,


	
 

	
 

	
 

	
 





22









	
 

	
 


	
 

	
the rent commencement date and the
condition in which Landlord is willing to lease such space including, without
limitation, any base Building work which Landlord is willing to perform
and/or work allowance or contribution which Landlord is willing to make
towards the cost of Tenant’s initial installation in such space. The term of
the leasing of any ROFO Space shall be co-terminous with the scheduled
expiration date of the term of the Lease; except, however, that such term
must be for a minimum of five (5) years, so that if the Anticipated
Commencement Date, occurs less than five (5) years prior to the last day of
the 15th Lease Year, then Tenant may not exercise its option to lease such
ROFO Space unless it simultaneously exercises its renewal option pursuant to
Article 32 (in which case the term of the leasing of such ROFO Space, as well
as any other ROFO Space thereafter leased by Tenant, shall expire on the last
day of the twentieth (20th) Lease Year).


	
 

	
 


	
 

	
If and so long as Tenant is not in default
under the Lease beyond any applicable notice and/or grace period, Tenant
shall have the one-time option (with respect to each such ROFO Space),
exercisable by notice to Landlord (an “Acceptance Notice”) given within
thirty (30) days after the date Landlord’s RS Availability Notice is given
(time being of the essence), to add to the Premises all but not part of any
such ROFO Space. Tenant shall notify Landlord in the Acceptance Notice
whether Tenant accepts or disputes Landlord’s Maximum Offer Determination,
and if Tenant disputes Landlord’s Maximum Offer Determination, the Acceptance
Notice shall set forth Tenant’s good faith determination of the Fair Offer
Rental for such ROFO Space, which shall constitute the minimum that Tenant
can claim as the Fair Offer Rental for such ROFO Space in any arbitration
thereof (“Tenant’s Minimum Offer Determination”). If Tenant fails to object
to Landlord’s Maximum Offer Determination in the Acceptance Notice and to set
forth therein Tenant’s Minimum Offer Determination, then Tenant shall be
deemed to have accepted Landlord’s Maximum Offer Determination as the Fair
Offer Rental for such ROFO Space and Landlord and Tenant shall promptly enter
into an amendment of this lease confirming (i) the inclusion of the ROFO
Space in the Premises, (ii) the term of the leasing of such ROFO Space
(including, without limitation, the commencement date and the rent
commencement date), (iii) the fixed annual rents and additional rents payable
for such ROFO Space, (iv) the condition in which such space is being leased,
including without limitation, the base building work which Landlord will
perform (if any), and the work allowance or contribution which Landlord 





23









	
 

	
 


	
 

	
will make towards the cost of Tenant’s
initial installation in such space (if any), all as set forth in Landlord’s
RS Availability Notice, and (e) that the ROFO Space shall otherwise be leased
to Tenant pursuant to all of the terms, covenants and conditions of the Lease
including, without limitation, the provisions of Article 2 regarding real
estate tax escalation additional rent and operating expense escalation additional
rent (except that (x) the base tax year for the ROFO Space shall be the New
York City real estate tax year during which the commencement date of the term
of the leasing of the ROFO Space occurs, (y) the Base Year for the ROFO Space
shall be the calendar year during which the commencement date of the term of
the leasing of the ROFO Space occurs and (z) “The Percentage” for the ROFO
Space shall be determined in the same manner “The Percentage” was determined
for the original Premises), and the provisions of Article 3 regarding
electricity. In all other respects, the terms and conditions of the Lease
shall remain unmodified.


	
 

	
 


	
 

	
In the event that Tenant (1) gives Landlord
an Acceptance Notice within such thirty (30) day period, (2) objects to
Landlord’s Maximum Offer Determination in the Acceptance Notice and (3) sets
forth therein Tenant’s Minimum Offer Determination, then the Fair Offer
Rental for such ROFO Space shall be determined by appraisal pursuant to the
provisions of clauses (1) through (6) of Article 32A(e), except that the
appraisers shall determine the Fair Offer Rental for such ROFO Space and not
for the Premises. In the event that Tenant fails to give Landlord an
Acceptance Notice within such thirty (30) day period, Tenant shall be deemed
to have waived its right with respect to the leasing of such ROFO Space.


	
 

	
 


	
DELAYS IN

POSSESSION OF

OPTION OR ROFO

SPACE:



(Article 43D)

	
If Landlord is unable to make available to
Tenant timely possession of any Option Space or ROFO Space for any reason
beyond its control, then Landlord shall not be subject to any liability by
reason of such delay, the Lease shall not be affected by such delay, but
Landlord shall diligently and in good faith seek to fulfill its obligations
with respect to such space including, without limitation, the commencement
and diligent prosecution of a summary holdover dispossess proceeding against
any tenant holding over in such space.


	
 

	
 


	
 

	
Notwithstanding the foregoing, if Landlord
is unable to make possession of any Option Space or ROFO Space, as the case
may be, available to Tenant within one hundred eighty (180) days after the
Anticipated Commencement Date for such space, then, at Tenant’s election, to
be made by written notice given by Tenant to Landlord within thirty (30) days
after the end of such 





24









	
 

	
 


	
 

	
one hundred eighty (180) day period (time
being of the essence), the exercise by Tenant of its option or right to lease
such Option Space or ROFO Space (as the case may be) shall be deemed null and
void and of no force and effect, and neither party shall have any further
obligation or liability to the other under Article 43 with respect to the
leasing of such space; provided, however, that if Tenant does not make such
election within such thirty (30) day period and Landlord is still unable to
make possession of any Option Space or ROFO Space, as the case may be,
available to Tenant within two hundred seventy (270) days after the
Anticipated Commencement Date for such space, then, at Tenant’s election, to
be made by written notice given by Tenant to Landlord within thirty (30) days
after the end of such two hundred seventy (270) day period (time being of the
essence), the exercise by Tenant of its option or right to lease such Option
Space or ROFO Space (as the case may be) hereunder shall be deemed null and
void and of no force and effect, and neither party shall have any further
obligation or liability to the other under Article 43 with respect to the
leasing of such space.


	
 

	
 


	
INITIAL
LEASING OF

VACANT SPACE BY

LANDLORD:



(Article 43C)

	
Notwithstanding anything contained in the
Lease to the contrary, with respect to any space which is vacant and
available for leasing as of July 14, 2008, the provisions of Article 43 with
respect to the leasing of Option Space and/or ROFO Space by Tenant shall not
be applicable to such space until after the initial leasing of such space by
Landlord after July 14, 2008.


	
 

	
 


	
OCCUPANCY

CONDITION TO

EXPANSION AND ROFO

RIGHTS:



(Article 43G)

	
The exercise by Tenant of its rights under
Article 43 shall be conditioned upon the occupancy of at least eighty-five
percent (85%) of the then RSF of the Premises by Tenant and/or any Affiliate
or Desk Space User.





25






AGREEMENT OF LEASE


EMPIRE STATE BUILDING COMPANY L.L.C.,
Landlord


and


COTY INC., Tenant


	
 

	
 


	
Premises:

	
Entire 14th
Floor and Portion of 15th Floor


	
 

	
Empire State
Building


	
 

	
350 Fifth
Avenue


	
 

	
New York,
New York 10118


	
 

	
 


	
Date:

	
As of July
14, 2008












TABLE OF CONTENTS


	
 

	
 

	
 

	
 


	
Article

	
 

	
 

	
Page


	




	
 

	
 

	





	
 

	
 

	
 

	
 


	
1.

	
COMMENCEMENT
DATE; PURPOSE; ETC.

	
 

	
1


	
2.

	
RENT

	
 

	
5


	
3.

	
ELECTRICITY

	
 

	
19


	
4.

	
ASSIGNMENT

	
 

	
25


	
5.

	
DEFAULT

	
 

	
34


	
6.

	
RE-LETTING;
ETC.

	
 

	
34


	
7.

	
LANDLORD MAY
CURE DEFAULTS

	
 

	
36


	
8.

	
ALTERATIONS

	
 

	
36


	
9.

	
LIENS

	
 

	
39


	
10.

	
REPAIRS

	
 

	
40


	
11.

	
DESTRUCTION

	
 

	
40


	
12.

	
END OF TERM

	
 

	
42


	
13.

	
SUBORDINATION
AND ESTOPPEL; ETC.

	
 

	
43


	
14.

	
CONDEMNATION

	
 

	
45


	
15.

	
REQUIREMENTS
OF LAW

	
 

	
46


	
16.

	
CERTIFICATE
OF OCCUPANCY

	
 

	
47


	
17.

	
POSSESSION

	
 

	
47


	
18.

	
QUIET
ENJOYMENT

	
 

	
48


	
19.

	
RIGHT OF
ENTRY

	
 

	
48


	
20.

	
VAULT SPACE

	
 

	
49


	
21.

	
INDEMNITY

	
 

	
49


	
22.

	
LANDLORD’S
LIABILITY; RENT ABATEMENTS

	
 

	
50


	
23.

	
CONDITION OF
PREMISES; LANDLORD’S WORK; TENANT’S INITIAL INSTALLATION WORK; ETC.

	
 

	
52


	
24.

	
SERVICES

	
 

	
59


	
25.

	
JURY WAIVER;
DAMAGES

	
 

	
61


	
26.

	
NO WAIVER;
ETC.

	
 

	
61


	
27.

	
OCCUPANCY
AND USE BY TENANT; SIGNAGE

	
 

	
62


	
28.

	
NOTICES

	
 

	
64


	
29.

	
WATER

	
 

	
65


	
30.

	
SPRINKLER
SYSTEM

	
 

	
65


	
31.

	
HEAT; AIR
CONDITIONING; ELEVATOR; ETC.

	
 

	
65


	
32.

	
RENEWAL
OPTION

	
 

	
67


	
33.

	
RENT CONTROL

	
 

	
70


	
34.

	
SHORING

	
 

	
70


	
35.

	
EFFECT OF
CONVEYANCE; ETC.

	
 

	
70


	
36.

	
RIGHTS OF
SUCCESSORS AND ASSIGNS

	
 

	
70


	
37.

	
CAPTIONS

	
 

	
70


	
38.

	
LEASE
SUBMISSION

	
 

	
71


	
39.

	
ELEVATORS
AND LOADING

	
 

	
71


	
40.

	
BROKERAGE

	
 

	
71


	
41.

	
ARBITRATION

	
 

	
72


	
42.

	
INSURANCE

	
 

	
72


	
43.

	
EXPANSION
OPTION; RIGHT OF FIRST OFFER

	
 

	
74


	
44.

	
LATE CHARGES

	
 

	
80


	
45.

	
ENVIRONMENTAL
COMPLIANCE

	
 

	
81


	
46.

	
LEASE FULLY
NEGOTIATED

	
 

	
82















	
 

	
 

	
 

	
 


	
47.

	
SMOKING
RESTRICTIONS

	
 

	
82


	
48.

	
ANTI-TERRORISM
REQUIREMENTS

	
 

	
82


	
49.

	
CONDOMINIUM
PROVISIONS

	
 

	
83


	
50.

	
ADDITIONAL
DEFINITIONS; COUNTERPARTS

	
 

	
85


	
51.

	
USE OF
BUILDING NAME AND IMAGE

	
 

	
86


	
52.

	
APPLICABLE
LAW

	
 

	
86








	
 


	
EXHIBIT A -
Diagram of Demised Premises 


	
EXHIBIT A-1
- Legal Description 


	
EXHIBIT B -
Cleaning Schedule 


	
EXHIBIT C -
Non-Disturbance Agreements 


	
EXHIBIT D -
List of Approved Contractors 


	
EXHIBIT D-1
- List of Approved Contractors for Tenant’s Initial Installation Work 


	
EXHIBIT E -
Sample Escalation Statement 


	
EXHIBIT F -
Certificate of Occupancy 


	
EXHIBIT G -
Option Space/ROFO Space 


	
EXHIBIT H -
Current Building Renovation and Upgrade Program 


	
EHXIBIT I -
Building Standard “White Box” Condition Specifications 


	
EXHIBIT J -
Building Standard Common Corridor Specifications 


	
EXHIBIT K -
Entrance Door and Signage Specifications 


	
SCHEDULE A -
Rules and Regulations 












LEASE made as of this 14th day of July, 2008, between EMPIRE
STATE BUILDING COMPANY L.L.C., a New York limited liability company, with an
address at 350 Fifth Avenue, New York, New York 10118, hereinafter referred to
as “Landlord” and COTY INC., a Delaware corporation with an address at Two Park
Avenue, New York, New York 10016, hereinafter referred to as “Tenant”.


WITNESSETH:


Landlord hereby leases to Tenant and Tenant hereby hires from Landlord
(i) the entire rentable area of the 14th floor (the “14th
Floor Portion”), and (ii) a portion of the 15th floor (the “15th
Floor Portion”), all as more particularly depicted by cross hatching on Exhibit
A (which is not necessarily to scale) annexed hereto and made part hereof (said
premises are hereinafter referred to as the “demised premises” or the
“premises”), in the building known as the Empire State Building, located at 350
Fifth Avenue, New York, New York 10118 (the “building”), in the County, City
and State of New York, for a term of years, to commence on the Commencement
Date (as hereinafter defined in Article 1A), and to expire on the last day of
the 15th Lease Year (as hereinafter defined in Article 1E) (the
“Expiration Date”), unless such term shall sooner end as herein provided, both
dates inclusive (and subject to Tenant’s renewal option as set forth in Article
32 of this lease), upon the terms and conditions hereinafter provided. For all
purposes under this lease, (a) the rentable square foot area of the 14th
Floor Portion shall be deemed to be 51,527 rentable square feet, irrespective
of any disparity between (1) such figure and any actual measurement of such
area or (2) the usable area thereof; (b) the rentable square foot area of the
15th Floor Portion shall be deemed to be 36,329 rentable square
feet, irrespective of any disparity between (1) such figure and any actual
measurement of such area or (2) the usable area thereof; (c) the rentable
square foot area of the entire demised premises (i.e., the 14th
Floor Portion and the 15th Floor Portion) shall be deemed to be
87,856 rentable square feet, irrespective of any disparity between (1) such
figure and any actual measurement of such area or (2) the usable area thereof;
and (d) the rentable square foot area of the office and commercial space in the
building shall be deemed to be 2,720,595 rentable square feet.


Landlord and Tenant covenant and agree:


1. COMMENCEMENT DATE; PURPOSE; ETC.


          A. The term
of this lease shall commence on the thirty-first (31st) day after
the date (the “Commencement Date”) when the last of the following shall have
occurred: (i) Landlord delivers vacant possession of the demised premises to
Tenant, free of any occupancies or tenancies; (ii) Landlord substantially
completes Landlord’s Work (as hereinafter defined in Article 23B); and (iii)
Landlord delivers to Tenant the three (3) non-disturbance agreements described
in Article 13 of this lease. Landlord shall give Tenant at least fifteen (15)
days’ prior written notice of the date Landlord will substantially complete
Landlord’s Work.


          B. Landlord’s
Work shall be deemed to have been substantially completed despite the fact that
minor insubstantial details of construction and mechanical adjustments (i.e.,
“punch list items”) remain to be completed, provided the demised premises are
accessible and reasonably usable by Tenant for the purpose of effecting Tenant’s
Initial Installation Work (as hereinafter defined in Article 23C(i)); and
provided, further, (i) that the electrical service at the 






panels described in Article 23B(iv) of this lease, and a chilled water
line in each of the 14th Floor Portion and the 15th Floor
Portion (which is then capable of providing the chilled and warm water service
which is described in Article 24C of this lease), are available for use by
Tenant and its contractors in connection with such Tenant’s Initial
Installation Work, and (ii) that the building systems through which any other
services which are required to be provided by Landlord hereunder are also
available in the demised premises (or in locations outside of the demised
premises, if so provided hereunder), so that, upon completion of such Tenant’s
Initial Installation Work, such services can be provided by Landlord as
required hereunder. Landlord shall nevertheless complete such punch list items
within thirty (30) days of the Commencement Date (and Tenant shall provide Landlord
and its contractors with such access to the demised as is reasonably necessary
to do so, using reasonable diligence and without the necessity of incurring
overtime or premium labor charges).


          C. Landlord
shall, in accordance with the foregoing, fix the Commencement Date and notify
Tenant of the date so fixed. When the Commencement Date has so been determined,
the parties hereto shall, within thirty (30) days thereafter, at the request of
either Landlord or Tenant, execute a written agreement confirming such date as
the Commencement Date. Any failure of the parties to execute such written
agreement shall not affect the validity of the Commencement Date as fixed and
determined by Landlord, as aforesaid. Any dispute regarding the occurrence of
the Commencement Date shall be resolved by arbitration in accordance with the
provisions of Article 41 of this lease.


          D. Tenant
by entering into occupancy of the demised premises shall be conclusively deemed
to have agreed that Landlord had substantially completed Landlord’s Work,
unless within twenty (20) days after such date Tenant shall give written notice
(hereinafter called the “Punch List Notice”) to Landlord specifying the
respects in which the same were not in satisfactory condition. The giving of
the Punch List Notice shall have no effect whatsoever upon the Commencement
Date.


          E. The term
“Lease Year” when used in this lease shall mean the twelve (12) months
commencing on the Rent Commencement Date (as hereinafter defined in Article 2A)
(or if the Rent Commencement Date is not the first day of a month, the first
day of the month following the month in which occurs the Rent Commencement
Date) and each subsequent period of twelve (12) months. The first Lease Year
shall include the period, if any, from the Rent Commencement Date to the end of
the month in which the Rent Commencement Date occurs.


          F. (i)
Landlord shall use commercially reasonable efforts to substantially complete
Landlord’s Work as soon as reasonably practicable after the date (the
“Effective Date”) this lease is executed and delivered by Landlord and Tenant.
However, if, despite the exercise of such commercially reasonable efforts by
Landlord, Landlord fails to substantially complete Landlord’s Work on or before
the date (the “First Outside Date”) that is four (4) months after the Effective
Date, then, notwithstanding anything contained hereinabove to the contrary,
Tenant shall be entitled to a rent credit in the amount of $12,516.47 per day
for each day after the First Outside Date that Landlord fails to substantially
complete Landlord’s Work. Such rent credit shall be applied, until fully
depleted, against the first fixed annual rent (without electricity) due under
this lease from and after the Rent Commencement Date.


2





          (ii) If
Landlord fails to substantially complete Landlord’s Work on or before the date
(the “Self Help Outside Date”) that is five (5) months after the Effective
Date, then Tenant (without any obligation to do so) may, at any time within
sixty (60) days after the Self Help Outside Date (time being of the essence),
give Landlord written notice (“Tenant’s Self Help Notice”) that, unless
Landlord substantially completes Landlord’s Work within ten (10) days after
such notice shall have been given, Tenant shall perform any and all work
necessary to complete Landlord’s Work. Any such work by Tenant shall be
performed in accordance with all applicable laws, rules and regulations and all
applicable provisions of this lease (other than any such provisions requiring
Landlord’s prior approval with respect to any alterations by Tenant). Tenant
agrees that Tenant’s Self Help Notice shall specify (in bold face type and
capital letters) that in the event Landlord does not substantially complete
Landlord’s Work within such ten (10) day notice period, then Tenant shall
exercise its “self-help” rights under this subparagraph (ii) with respect to
Landlord’s Work. Tenant shall provide Landlord with reasonable written proof of
the out-of-pocket costs incurred by Tenant in connection with such work, and
Landlord shall reimburse Tenant for such costs within thirty (30) days after
Landlord’s receipt of such proof; provided, however, that in no event shall
such reimbursement obligation of Landlord exceed the commercially reasonable
out-of-pocket cost to Tenant of performing such work. If Tenant shall exercise
its self-help rights under this subparagraph (ii), then (1) any rent credit to
which Tenant is then entitled under subparagraph (i) above shall only continue
until the earlier to occur of (x) the date that Tenant substantially completes
Landlord’s Work or (y) the date (as same may be extended by any of the causes
set forth in Article 22A(i) of this lease) on which Tenant, using commercially
reasonable efforts to do so, should have completed Landlord’s Work; and (2)
Tenant shall no longer have the right to cancel this lease pursuant to
subparagraph (iii) below.


          (iii)
Notwithstanding anything contained hereinabove to the contrary, if Landlord
fails to substantially complete Landlord’s Work on or before the date (the
“Second Outside Date”) that is six (6) months after the Effective Date (and
provided Tenant has not theretofore exercised its “self help” rights pursuant
to subparagraph (ii) above), then, at Tenant’s election, to be exercised by
written notice given by Tenant to Landlord at any time within sixty (60) days
after the Second Outside Date (time being of the essence), Tenant may terminate
this lease on ten (10) days’ prior written notice given to Landlord, and unless
Landlord substantially completes Landlord’s Work within ten (10) days after
Tenant’s termination notice shall have been received by Landlord, the term of
this lease shall end as if the Second Outside Date were the date originally set
forth in this lease as the expiration date of the term, and the parties shall
have no further obligations or liabilities to each other hereunder, except
those expressly stated to survive the expiration or earlier termination of the
term of this lease; and except, also, that Landlord shall reimburse Tenant for
the reasonable out-of-pocket cost to Tenant of all plans and specifications
theretofore prepared for Tenant in connection with this lease and the demised
premises, up to but not in excess of a total of $351,424.00 (which
reimbursement shall be made promptly after Tenant provides Landlord with paid
invoices or other reasonably sufficiently evidence of such out-of-pocket cost
to Tenant of such plans and specifications).


          (iv)
Notwithstanding the foregoing, the First Outside Date, the Self Help Outside
Date and the Second Outside Date shall each be extended, for no more than sixty
(60) days in the aggregate, by one day for each day that the performance of
Landlord’s Work is delayed as a result of any of the causes set forth in
Article 22A(i) of this lease.


3





          G. Tenant
shall use and occupy the demised premises solely as offices relating to the
conduct of Tenant’s or any permitted occupant’s business, and for uses
incidental and related thereto, and for no other purpose, such covenant being
of the essence of this lease. Notwithstanding anything contained herein to the
contrary, a breach of such covenant which continues beyond any applicable
notice and or grace period shall be deemed a material and substantial default
by Tenant under this lease, for which Landlord shall have all remedies
available to it under this lease and under the law, including, without
limitation, the right to enforce such covenant by injunctive or other
appropriate equitable relief. Without limiting the generality of the foregoing,
it is expressly understood that no portion of the demised premises shall be
used for (a) retail operations of any retail or branch bank, trust company,
savings bank, industrial bank, savings and loan association, credit union or
personal loan association, or (b) a public stenographer or public typist, (c) a
barber shop, beauty shop or beauty parlor, (d) a telephone or telegraph agency,
(e) a telephone, court reporting, stenographic or secretarial service, (f) a
public messenger service, (g) a public travel or tourist agency, (h) an
employment agency (other than an executive search firm which conducts business
by appointment only), (i) a restaurant or bar, (j) a public commercial document
reproduction or offset printing service, (k) a public vending machines
operation, (l) a retail, wholesale or discount shop for sale of books,
magazines, audio or video tapes, CD ROM, DVD ROM or other devices for the
recording or transmitting of audio or visual signals, images, music or speech,
electronic equipment and accessories or any other merchandise, (m) a retail
service shop, (n) a labor union, (o) a school or classroom (other than for
training of Tenant’s employees), (p) a governmental or quasi-governmental bureau,
department or agency, including an autonomous governmental corporation, embassy
or consular office of any country or other quasi-autonomous or sovereign
organization, whether or not subject to the Foreign Sovereign Immunities Act of
1976, as from time to time amended, or any successor statute, (q) intentionally
deleted, (r) intentionally deleted, (s) a company engaged in the business of
renting office or desk space to third parties, (t) any person, organization,
association, corporation, company, partnership entity or other agency immune
from service or suit in the courts of the State of New York or the assets of
which may be exempt from execution by Landlord in any action for damages, (u) a
factory of any kind, (v) intentionally deleted, (w) a payroll office or check
cashing operation, (x) a clinic (except that a portion of the demised premises
may be used by Tenant as a nurse’s clinic to treat employees who become ill
during the work day) or (y) any illegal purpose. Tenant shall not affix any
sign to any window or exterior surface of the demised premises nor install or
place any sign within the demised premises that may be seen from the outside.
In the event that the demised premises shall be used by a firm whose principal
business is real estate brokerage, then in no event shall such firm shall be
permitted to solicit any tenants of the building.


          H.
Notwithstanding anything contained in this lease to the contrary, Tenant and
its contractors may enter the demised premises during the thirty (30) day
period immediately proceeding the Commencement Date, for the purposes of
preparing for and performing Tenant’s Initial Installation Work. Any such early
entry into the demised premises shall be subject to all of the terms, covenants
and conditions of this lease, except that Tenant shall not be required to pay
Landlord any fixed annual rent or real estate tax or operating expense
escalation additional rent hereunder for such period (but Tenant shall be
required to pay Landlord for Tenant’s electricity consumption in the demised
premises during such period, in accordance with the provisions of Article 3 of
this lease).


4






2. RENT


          Tenant
agrees to pay as rent herein provided at the office of Landlord or such other
place as Landlord may designate, payable in United States legal tender by wire
transfer or by good and sufficient check, and without any notice, set off or
deduction whatsoever (except as specifically set forth herein), each of the
types of rent set forth in this Article 2.


          Any sum
other than fixed annual rent payable hereunder shall be deemed additional rent
and due on demand unless otherwise specifically provided. Landlord shall have
the same rights and remedies hereunder with respect to Tenant’s non-payment of
additional rent as it has with respect to Tenant’s non-payment of fixed annual
rent. Unless otherwise specified herein, each payment of additional rent
hereunder is due and payable within thirty (30) days after demand therefor.


          A. Fixed
Annual Rent: There is herein reserved to Landlord for the entire
term of this lease fixed annual rent equal to the aggregate amount of the sums
hereinafter set forth. Fixed annual rent shall be paid in advance as follows:
commencing on the date which is ten (10) months after the Commencement Date
(the “Rent Commencement Date”), and on the first day of each month thereafter
throughout the term of this lease, Tenant shall pay to Landlord, without
notice, deduction, set off or reduction (except as specifically set forth
herein), monthly payments of fixed annual rent equal to one-twelfth (1/12th) of
each of the following annual amounts:


	
 

	
 

	
 


	
 

	
(i)

	
From the Rent Commencement Date through the last day of the fifth
Lease Year: Four Million Five Hundred Sixty-Eight Thousand Five Hundred Twelve
and 00/100 ($4,568,512.00) Dollars per annum ($380,709.33 per
month);


	
 

	
 

	
 


	
 

	
(ii)

	
From the first day of the sixth Lease Year through the last day of
the tenth Lease Year: Four Million Nine Hundred Nineteen Thousand Nine
Hundred Thirty-Six and 00/100 ($4,919,936.00) Dollars per annum ($409,994.67 per
month); and


	
 

	
 

	
 


	
 

	
(iii)

	
From the first day of the eleventh Lease Year through the last day of
the fifteenth Lease Year: Five Million Two Hundred Seventy-One Thousand Three
Hundred Sixty and 00/100 ($5,271.360.00) Dollars per annum ($439,280.00 per
month)




          Should the
Rent Commencement Date occur on any day other than the first day of a month,
then the fixed annual rent for the unexpired portion of such month shall be
adjusted and prorated on a per diem basis based on the actual number
of days in said month.


          B. Operating
Expenses Escalation: Tenant shall pay to Landlord, as additional rent, operating expense escalation in
accordance with this paragraph B:


          (i)
Definitions: For the purpose of this paragraph, the following definitions shall
apply:


5









	
 

	
 


	
 

	
(a) The term “Base Year” as hereinafter set forth for the
determination of operating expenses escalation, shall mean the calendar year
2009.


	
 

	
 


	
 

	
(b) The term “The Percentage”, for purposes of computing operating
expense escalation, shall mean 3.2293 percent (3.2293%).


	
 

	
 


	
 

	
(c) The term “the building project” shall mean the aggregate combined
parcel of land more particularly described in Exhibit A-2 attached hereto and
made a part hereof, on a portion of which the building is constructed, and
the building


	
 

	
 


	
 

	
(d) The term “comparative year” shall mean each calendar year
commencing on or after January 1, 2010, in which occurs any part of the term
of this lease.


	
 

	
 


	
 

	
(e) The term “Expenses” shall mean the total of all the costs and
expenses incurred or borne by Landlord with respect to the operation and
maintenance of the building project and the services provided tenants
therein, including, but not limited to, the costs and expenses incurred for
and with respect to: steam and any other fuel; water rates and sewer rents
(except to the extent included in real estate taxes); air-conditioning;
mechanical ventilation; heating; cleaning, by contract or otherwise; window
washing (interior and exterior); elevators, escalators; porter and matron
service; building electric current (building electric current shall be deemed
to mean all electricity purchased for the building, except that the parties
acknowledge and agree that forty percent (40%) of the building’s payment to
the public utility for the purchase of electricity shall be deemed to be
payment for building electric current); protection and security; lobby
decoration; repairs and replacements made in connection with repairs of
cables, fans, pumps, boilers, cooling equipment, wiring and electrical
fixtures and metering, control and distribution equipment, component parts of
the HVAC, electrical, plumbing, elevator and any life or property protection
systems (including, without limitation, sprinkler systems), window washing
equipment and snow removal equipment, provided that in case of any
replacements, the same are, in Landlord’s reasonable judgment, economically
prudent to make in lieu of repairs to the replaced item and are not made for
the purposes of enhancing the value of the building (although the fact that
the building is enhanced shall not preclude inclusion as an Expense); and
provided, further, that any such replacement costs that should be treated as
capital expenses by Landlord in accordance with GAAP (as hereinafter defined)
shall only be included in any comparative year (or Base Year, as the case may
be) to the extent of the annual amortization thereon calculated on a
straight-line basis over the useful life of such item determined in accordance
with GAAP together with interest thereon at a rate equal to the prime rate of
the JP Morgan Chase Bank, N.A. (or its successors) at the time of Landlord’s
having incurred said expenditure; maintenance; painting of non-tenant areas;
fire, extended coverage, boiler and machinery, sprinkler, apparatus, public
liability and property damage, rental and plate glass insurance and any
insurance required by a mortgagee or other holder of a Superior Interest (as
hereinafter defined); management fees; supplies, wages, salaries, disability
benefits, pensions, hospitalization, retirement plans and group insurance
respecting employees of




6









	
 

	
 


	
 

	
Landlord up to and including the building manager (including a pro
rata share only of such wages and benefits of employees including Landlord’s
engineer, who are employed at more than one building, such pro rata share
shall be determined by Landlord and shall be based upon Landlord’s reasonable
estimate of the percentage of time spent by such employees at the building project);
uniforms and working clothes for such employees and the cleaning thereof and
expenses imposed pursuant to law or to any collective bargaining agreement
with respect to such employees; worker’s compensation insurance, payroll,
social security, unemployment and other similar taxes with respect to such
employees; contributions to any business improvement district association not
deemed to be real estate taxes, provided same are mandatory under relevant
enabling legislation; and legal, accounting and other fees paid to
professionals and consultants retained by or on behalf of building
management.


	
 

	
 


	
 

	
Provided, however, that the foregoing costs and expenses shall
exclude or have deducted from them, as the case may be and as shall be
appropriate:


	
 

	
 


	
 

	
(1) real estate brokerage and leasing commissions and fees;


	
 

	
 


	
 

	
(2) managing agents’ fees or commissions in excess of the rates then
customarily charged for building management for buildings of like class and
character (provided, however, that if such managing agent is a subsidiary or
affiliate of Landlord, then such managing agent’s fee shall not exceed three
percent (3%) of gross rental revenues of Landlord derived from operation of
the building (excluding management fees and electricity costs);


	
 

	
 


	
 

	
(3) wages, salaries, reimbursable expenses, benefits and other
compensation of any personnel above the grade of building manager, and
Landlord’s general overhead expenses;


	
 

	
 


	
 

	
(4) expenditures for capital improvements, except those required by
law and enacted or first becoming effective after the Commencement Date, in
which event the cost thereof shall be included in Expenses for the year
(whether Base Year or a comparative year) in which the costs are incurred and
subsequent comparative years, amortized on a straight line basis, to the
extent that such items are amortized over the useful life of the item in
question (determined in accordance with generally accepted accounting
practices (“GAAP”)), with an interest factor equal to the prime rate of the
JP Morgan Chase Bank, N.A. (or its successors) at the time of Landlord’s
having incurred said expenditure;


	
 

	
 


	
 

	
(5) amounts received by Landlord through proceeds of insurance to the
extent the proceeds are compensation for expenses which were previously
included in Expenses hereunder;


	
 

	
 


	
 

	
(6) cost of repairs or replacements incurred by reason of fire or
other casualty;


	
 

	
 


	
 

	
(7) legal, accounting or other professional fees incurred in
connection with negotiating, preparing or enforcing leases or lease terms,
amendments of leases,




7









	
 

	
 


	
 

	
terminations of leases or extensions of leases, proceedings against
any tenant (including Tenant) relating to the collection of rent or other
sums due to Landlord from such tenant or any other disputes with any tenant
(including Tenant), other than legal and auditing fees reasonably incurred in
connection with the maintenance and operation of the building or in
connection with the preparation of statements required pursuant to additional
rent or lease escalation provisions;


	
 

	
 


	
 

	
(8) the incremental cost of furnishing services such as overtime HVAC
to any tenant at such tenant’s expense; costs incurred in performing work or
furnishing services for individual tenants (including this Tenant) at such
tenant’s expense; and costs of performing work or furnishing services for
tenants other than this Tenant at Landlord’s expense to the extent that such
work or service is in excess of any work or service Landlord is obligated to
furnish to this Tenant at Landlord’s expense;


	
 

	
 


	
 

	
(9) the costs and expenses incurred or borne by Landlord with respect
to the operation and maintenance of any (i) retail, garage or concession
space in the building project and the services provided tenants therein; and
(ii) the observation deck in the building project (including, without
limitation, any elevators which exclusively service such observation deck);


	
 

	
 


	
 

	
(10) depreciation and amortization of the building;


	
 

	
 


	
 

	
(11) the cost of the design, construction, renovation, redecorating
or other preparation of tenant improvements for Tenant or other tenants or
prospective tenants of the building (including design fees for space planning
and all third party fees and charges, permit, license and inspection fees)
and allowances therefor;


	
 

	
 


	
 

	
(12) advertising and promotional expenses incurred for the purpose of
marketing space in the building or otherwise related to the building project;


	
 

	
 


	
 

	
(13) rent value or rental for any property manager’s offices in the
building;


	
 

	
 


	
 

	
(14) legal costs incurred in connection with the development,
construction, alteration or improvement of the building or the building
project, or legal, auditing, accounting or other professional fees not
allocated to the operation or management of the building project;


	
 

	
 


	
 

	
(15) any rental under any ground or underlying lease;


	
 

	
 


	
 

	
(16) interest, including interest on debt, debt service or
amortization payments on any mortgage encumbering the building or the
building project and any financing and refinancing costs with respect
thereto;


	
 

	
 


	
 

	
(17) repairs or improvements paid for from the proceeds of insurance
(or which would have been paid from the proceeds of insurance required to be
carried by




8









	
 

	
 


	
 

	
Landlord under this lease if Landlord has failed to carry such
insurance, or which would have been paid from the proceeds of insurance, but
for deductibles under policies carried by Landlord under this lease in excess
of those Landlord is permitted to carry under this lease), or paid for
directly by Tenant, any other tenant(s) of the building or any third party;


	
 

	
 


	
 

	
(18) amounts received by Landlord through proceeds of insurance to
the extent they are compensation for sums previously included in Expenses;


	
 

	
 


	
 

	
(19) costs of repairs or replacements incurred by reason of eminent
domain;


	
 

	
 


	
 

	
(20) repairs or improvements made for the benefit solely of tenants
of the building other than Tenant;


	
 

	
 


	
 

	
(21) the cost of any utilities (including, without limitation, water,
electricity, power, gas, sewer, waste disposal, communication and cable T.V.
facilities, heating, cooling, lighting and ventilation) for which Landlord is
entitled to be reimbursed by Tenant pursuant to any other provision of this
lease, or by other tenants of the building pursuant to clauses similar to
this operating expense escalation clause, except for reimbursement of any
“building electric current”;


	
 

	
 


	
 

	
(22) any expense for which Landlord is entitled to be reimbursed by
any tenant (including Tenant) as an additional charge in excess of fixed
annual rent;


	
 

	
 


	
 

	
(23) overhead and profit increment paid to affiliates and
subsidiaries of Landlord for services on or to the building or the building
project or for supplies or other materials, to the extent that the costs of
the services, supplies, or materials exceed the competitive costs of the
services, supplies, or materials were they not provided by an affiliate or
subsidiary of Landlord;


	
 

	
 


	
 

	
(24) costs incurred to test, survey, clean up, contain, encapsulate,
abate, remove, dispose of, or otherwise remedy hazardous wastes or
asbestos-containing materials on, in, at, under or from the building or the
building project;


	
 

	
 


	
 

	
(25) expenses incurred for business interruption or rent abatement
insurance;


	
 

	
 


	
 

	
(26) costs incurred for permanent and temporary works of art and
decorations, including, without limitation, seasonal decorations;


	
 

	
 


	
 

	
(27) real estate taxes;


	
 

	
 


	
 

	
(28) Landlord’s income taxes and franchise, gains or estate taxes
imposed upon the income of Landlord;


	
 

	
 


	
 

	
(29) costs with respect to the creation of a mortgage or a superior
lease or in connection with a sale of the building or the building project,
including, without




9









	
 

	
 


	
 

	
limitation, survey, legal fees and disbursements, transfer taxes or
stamps and appraisals, engineering and inspection reports associated with the
contemplated sale;


	
 

	
 


	
 

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


	
 

	
 


	
 

	
(31) costs incurred with respect to any specialty use or service in
the building which is operated by Landlord and is not available for use by
Tenant or its employees;


	
 

	
 


	
 

	
(32) payment of damages, attorneys’ fees and any other amounts to any
person seeking recovery for negligence or other torts (including any tort
claims relating to asbestos);


	
 

	
 


	
 

	
(33) the cost of any and all repairs, alterations, additions,
improvements or replacements made to rectify, remedy or correct any
structural or other defect in the original design, construction materials,
installations or workmanship of the building;


	
 

	
 


	
 

	
(34) damages and repairs necessitated by the negligence or willful
misconduct of Landlord or Landlord’s employees, contractors or agents;


	
 

	
 


	
 

	
(35) costs incurred due to violations by Landlord, or by any tenant
(including Tenant) in the building, of the terms and conditions of any lease,
and penalties or interest for late payment of any obligation of Landlord
(unless such penalties or interest result from Tenant’s late payment of
rent);


	
 

	
 


	
 

	
(36) Landlord’s general corporate overhead, including, without
limitation, the cost of Landlord’s general corporate accounting and the cost
of preparation of Landlord’s income tax or information returns;


	
 

	
 


	
 

	
(37) any tenant improvement allowance given to any tenant (including
Tenant) whether given by contribution or credit against rent or otherwise,
and any abatements or credits to fixed annual rent or additional rent;


	
 

	
 


	
 

	
(38) any rental concessions to, or lease buy-outs of, Tenant or any
other tenant in the building;


	
 

	
 


	
 

	
(39) any costs expressly to be excluded as Expenses under any other
provision of this lease;


	
 

	
 


	
 

	
(40) the costs, expenses and fees of any asset manager or investment
advisor representing Landlord or any partner or any other constituent member
of Landlord;




10









	
 

	
 


	
 

	
(41) costs arising from Landlord’s charitable or political
contributions and real estate association dues and licensing fees;


	
 

	
 


	
 

	
(42) the cost of future renovations to the building;


	
 

	
 


	
 

	
(43) any amounts payable by Landlord by way of indemnity or for
damages or which constitute a fine, interest, or penalty, including interest
or penalties for any late payments of operating costs;


	
 

	
 


	
 

	
(44) any improvement installed or work performed or any other cost or
expense incurred by Landlord in order to comply with the requirements for the
obtaining or renewal of a certificate of occupancy for the building or any
space therein;


	
 

	
 


	
 

	
(45) expenses attributable to storage space in the building;


	
 

	
 


	
 

	
(46) the cost of overtime or other expense to Landlord in curing its
defaults;


	
 

	
 


	
 

	
(47) the cost of common area compliance with the Americans with
Disabilities Act of 1990, as amended through the date of this lease;


	
 

	
 


	
 

	
(48) the costs associated with converting building systems away from
the use of CFC’s;


	
 

	
 


	
 

	
(49) any fee payable to any operator of a garage facility located in
the building (if any); and


	
 

	
 


	
 

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


	
 

	
 


	
 

	
Expenses shall be net only and for that purpose shall be deemed
reduced by the amount of all reimbursements, recoupments, payments,
discounts, credits, reductions, allowances or the like actually received by
Landlord in connection with Expenses; provided, however, that Landlord may
include in Expenses the reasonable and actual costs and expenses, if any,
incurred by Landlord in obtaining such reimbursements, recoupments, payments,
discounts, credits, reductions, allowances or the like.


	
 

	
 


	
 

	
Notwithstanding anything heretofore set forth to the contrary, if
Landlord shall purchase any item of capital equipment or make any capital
expenditure designed to result in savings or reductions in Expenses, then the
costs for same shall be included in Expenses, but only to the extent of
Landlord’s reasonable, good faith estimate of the amount of actual savings or
reductions in Expenses. The costs of such capital equipment or such capital
expenditures to be included in Expenses for the comparative year (or Base
Year, as the case may be) in which the costs are incurred and subsequent
comparative years, on a straight line basis, to the extent that such items
are amortized over such period of time as reasonably can be




11









	
 

	
 


	
 

	
estimated as the time in which such savings or reductions in Expenses
are expected to equal Landlord’s costs for such capital equipment or capital
expenditure, with an interest factor equal to the prime rate of the JP Morgan
Chase Bank, N.A. (or its successors) at the time of Landlord’s having
incurred said costs. If Landlord shall lease any such item of capital
equipment designed to result in savings or reductions in Expenses, then the
rentals and other costs paid pursuant to such leasing shall be included in
Expenses for the comparative year (or Base Year, as the case may be) in which
they were incurred, but only to the extent of Landlord’s reasonable, good
faith estimate of the amount of actual savings or reductions in Expenses. If
during all or part of the Base Year or of any comparative year, Landlord
shall not furnish any particular item(s) of work or service (which would constitute
an Expense hereunder) to portions of the building project due to the fact
that such portions are not occupied or leased, or because such item of work
or service is not required or desired by the tenant of such portion, or such
tenant is itself obtaining and providing such item of work or service, or for
other reasons, then, for the purposes of computing the additional rent
payable hereunder, the amount of the Expenses for such item for such period
shall be increased by an amount equal to the additional operating and
maintenance expenses which would reasonably have been incurred during such
period by Landlord if it had at its own expense furnished such item of work
or services to such portion of the building project.


	
 

	
 


	
 

	
(f) The “Escalation Statement” shall mean a statement in writing
signed by Landlord, setting forth the amount payable by Tenant for a
specified comparative year) pursuant to paragraph (iv) below, substantially
in the form attached hereto and made a part hereof as Exhibit F.




          (ii)
Payment: If the Expenses for any comparative year shall be greater than the
Expenses for the Base Year, Tenant shall pay to Landlord, as additional rent
for such comparative year, in the manner hereinafter provided, an amount equal
to The Percentage of the excess of the Expenses for such comparative year over
the Expenses for the Base Year (such amount being hereinafter called the
“Expense Payment”). The first payment of additional rent for the entire first
comparative year shall be payable within thirty (30) days after the Escalation
Statement therefor is delivered to Tenant. Commencing on the first day of the
first comparative year and thereafter, all monthly installments of rental shall
reflect one-twelfth (1/12th) of the then current annual amount of such
adjustment for Expenses on account of the next ensuing comparative year and
such amount shall be payable until a new adjustment becomes effective pursuant
to the provisions of this paragraph. Within thirty (30) days after the
rendering of the next Escalation Statement, Tenant shall pay to Landlord on
account of additional rent for the comparative year to which such Expense
Statement relates, an amount equal to the excess of additional rent due on
account of increases in Expenses over the amount collected on account thereof
during the preceding year. If there shall have been a reduction in the Expenses
during any ensuing comparative year, the excess of the amount collected by
Landlord over the amount paid on account of such comparative year shall be credited
against amounts payable by Tenant for the current comparative year (or if the
term hereof shall have expired on its stated expiration date, promptly refunded
to Tenant). If any Escalation Statement is furnished to Tenant after the
commencement of such comparative year, there also shall within thirty (30) days
be paid by


12





Tenant to Landlord an amount equal to the portion of such monthly
adjustments allocable to the part of such comparative year which shall have
lapsed prior to the first day of the calendar month next succeeding the
calendar month in which said Escalation Statement is furnished to Tenant. The
aforesaid monthly payments based on the total Expense Payment for the preceding
calendar year or comparative year, as the case may be, shall be adjusted (but
no more than twice per comparative year) to reflect, if Landlord can reasonably
so estimate, known increases in rates or costs, for the current comparative
year, applicable to the categories involved in computing Expenses, whenever
such increases become known prior to or during such current comparative year.
Notwithstanding anything contained herein to the contrary, if Landlord fails to
substantially complete Landlord’s Work on or before the First Outside Date,
then Tenant’s obligation to commence payment of operating expense escalation
additional rent hereunder shall be extended beyond the first day of the first
comparative year by one day for each day after the First Outside Date that
Landlord fails to substantially complete Landlord’s Work.


          (iii)
Calculation: Following the expiration of the Base Year and each comparative
year and after receipt of necessary information and computations from
Landlord’s certified public accountant, Landlord shall submit to Tenant an
Escalation Statement, as hereinafter described, setting forth the Expenses for
the preceding comparative year, the Expenses for the Base Year, and the Expense
Payment, if any, due to Landlord from Tenant for such comparative year under
this paragraph.


          (iv)
Escalation Statements/Audits: The statements of the Expenses to be furnished by
Landlord as provided above shall be based on information and computations made
for Landlord (in accordance with GAAP) by a certified public accountant (who
may be the accountant now or then employed by Landlord for the audit of its
accounts); said certified public accountant may rely on Landlord’s reasonable
allocations and estimates wherever operating cost allocations or estimates are
needed for this Article. The statements thus furnished to Tenant shall
constitute a final determination as between Landlord and Tenant of the Expenses
for the periods represented thereby, unless (a) within two hundred seventy
(270) days after they are furnished (time being of the essence), Tenant shall give
a notice (“Audit Notice”) to Landlord that Tenant wishes to examine Landlord’s
relevant books and records with respect thereto, and (b) within sixty (60) days
after the completion of any such examination of Landlord’s relevant books and
records (time being of the essence), Tenant shall give a notice (“Dispute
Notice”) to Landlord that it disputes the accuracy or appropriateness of the
statement which is the subject to such examination, which notice shall specify
the particular respects in which such statement is inaccurate or inappropriate.
Notwithstanding the foregoing, Tenant may audit and dispute the Base Year at
the same time it disputes or audits the first comparative year. Pending the
resolution of any such audit and dispute, Tenant shall pay the additional rent
to Landlord in accordance with the statements furnished by Landlord (without
prejudice as to any such dispute). After payment of said additional rent,
Tenant shall have the right, during regular business hours, to examine
Landlord’s relevant books and records with respect to the foregoing, provided
such examination is commenced within forty-five (45) days after the giving of
an Audit Notice, Landlord agrees that it shall permit such audit to begin
within such time period, and Tenant agrees that such audit shall be concluded
within a reasonable period of time thereafter (it being agreed that Tenant
shall cause such examination to be performed in a prompt and diligent manner,
subject to Landlord’s compliance with the following sentence). Landlord shall
reasonably cooperate with Tenant in connection with any such examination,
including, without


13





limitation, by making such relevant books and records available to
Tenant in a reasonably convenient location in the Borough of Manhattan (which
may include the management office in the building), and by providing reasonable
continuous access to such relevant books and records during the course of such
examination. Such right to examine Landlord’s relevant books and records shall
survive the expiration or sooner termination of the term of this lease. Tenant
shall keep such examination and arbitration relating to the dispute (as
hereinafter described in subparagraph (v)) in strict confidence (except if
disclosure is required by law or pursuant to legal proceedings, or is to
Tenant’s professional advisors, or is necessary in connection with a sale of
the Tenant’s business, or in pursuit of a claim against Landlord or Tenant), it
being agreed that Tenant’s failure to do so shall be deemed a substantial and material
default by Tenant under the terms of this lease, for which Landlord shall have
all remedies available to it under this lease and under the law. If it is
determined that the Expenses reported by Landlord are in excess of one hundred
five percent (105%) of the actual amount of Expenses, then if (1) Landlord
fails to dispute such finding, or (2) Landlord agrees with such finding, or (3)
following a dispute of Tenant’s examination by Landlord the reconciled audits
still evidence that Tenant was overcharged by more than five percent (5%) as
set forth above, or (4) in the arbitration referenced to in Article 41 it is
determined that Tenant was overcharged by more than five percent (5%) as set
forth above, then Tenant’s reasonable actual costs of said audit shall be
payable by Landlord within thirty (30) days of demand. In no event may Tenant
employ any person or entity whose compensation wholly or partially is
calculated upon a percentage of any Expenses deemed to be incorrectly included
in making Landlord’s calculation of additional rent under this paragraph or any
percentage of savings realized by Tenant by reason of disputing Landlord’s
calculation of such additional rent; except, however, that Tenant may retain
any of the following firms on such a contingency fee basis: Deloitte &
Touche, LLP, BDO Seidman, LLP and KBA Lease Services or any of their successors
by operation of law and any other firm that Landlord may approve, which
approval shall not be unreasonably withheld, conditioned or delayed.


          (v) Any
such dispute under this paragraph B shall be resolved by arbitration in
accordance with Article 41 hereof. All audit and dispute rights of Tenant set
forth herein shall survive the expiration or earlier termination of the term of
this lease for a period of two hundred seventy (270) days after the date Tenant
receives the Escalation Statement for the last comparative year (or partial
comparative year) during the term hereof.


          (vi)
Notwithstanding anything contained herein to the contrary, if Landlord incurs
in any comparative year any cost or expense which comprises an entirely new
category or subcategory of Expenses which was not included in the Expenses for
the Base Year (a “New Category of Expenses”), then Landlord may add to all
comparative years the actual costs incurred by Landlord attributable to such
New Category of Expenses, but Landlord shall also add to the Expenses for the
Base Year the annualized amount that Landlord initially incurs for the New
Category of Expenses in the first comparative year in which Landlord includes
the New Category of Expenses in computing Tenant’s Expense Payment. If
thereafter in any comparative year Landlord no longer includes in Expenses such
New Category of Expenses, then the costs so added to the Base Year shall be
deducted from the Base Year in computing Tenant’s Expense Payment for such
comparative year.


14






          (vii)
Any delay or failure of Landlord in billing any Expense escalation hereinabove
provided, for a period of more than eighteen (18) months after the comparative
year in question, shall constitute a waiver of such tax escalation, but shall
not constitute a waiver of or in any way impair the continuing obligation of
Tenant to pay any other Expense escalation hereunder.


          C.
Tax
Escalation. Tenant shall pay to Landlord, as additional rent, tax
escalation in accordance with this paragraph C:


	
 

	
 

	
 


	
 

	
(i)

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


	
 

	
 

	
 


	
 

	
 

	
(a) The term “base tax year” as hereinafter
set forth for the determination of real estate tax escalation, shall mean the
New York City real estate tax year commencing July 1, 2008 and ending June
30, 2009.


	
 

	
 

	
 


	
 

	
 

	
(b) The term “The Percentage”, for purposes
of computing tax escalation, shall mean 3.2293 percent (3.2293%).


	
 

	
 

	
 


	
 

	
 

	
(c) The term “the building project” shall
mean the aggregate combined parcel of land on a portion on which the building
is constructed and the building.


	
 

	
 

	
 


	
 

	
 

	
(d) The term “comparative year” shall mean
the twelve (12) months following the base tax year, and each subsequent
period of twelve (12) months (or such other period of twelve (12) months
occurring during the term of this lease as hereafter may be duly adopted as
the tax year for real estate tax purposes by the City of New York).


	
 

	
 

	
 


	
 

	
 

	
(e) The term “real estate taxes” shall mean
the total of all taxes and special or other assessments levied, assessed or
imposed at any time by any governmental authority upon or against the
building project, any tax or assessment levied, assessed or imposed at any
time by any governmental authority in connection with the receipt of income
or rents from said building project to the extent that same shall be in lieu
of all or a portion of any of the aforesaid taxes or assessments, or
additions or increases thereof, upon or against said building project, any
assessment by a business improvement district (BID), and all costs incurred
by Landlord to contest any assessment of the building project or any tax,
charge or other imposition levied against it during the term hereof. In no
event shall any franchise, income, transit, profit, excise, transfer or other
similar tax or governmental imposition be deemed to be included within the
definition of “real estate taxes” for the purposes hereof unless, due to a
future change in the method of taxation or in the taxing authority, or for
any other reason, such franchise, income, transit, profit, excise, transfer
or other similar tax or governmental imposition, however designated, shall be
levied against Landlord in substitution in whole or in part for the real
estate taxes, or in lieu of additions to or increases of said real estate
taxes. Additionally, in no event shall “real estate taxes” include any
interest or penalty payable by Landlord on account of its failure to pay real
estate taxes on a timely basis. As to special assessments which are payable
over a period of time extending beyond the term of this lease, only a pro
rata portion




15









	
 

	
 

	
 


	
 

	
 

	
thereof covering the portion of the term of
this lease unexpired at the time of the imposition of such assessment, shall
be included in “real estate taxes.” If by law, any assessment may be paid in
installments, then, for the purposes hereof (a) such assessment shall be
deemed to have been payable in the maximum number of installments permitted
by law and (b) there shall be included in real estate taxes, for each comparative
year in which such installments may be paid (and for the base tax year, if
applicable), the installments of such assessment so becoming payable during
such comparative year (or base tax year), together with interest payable
during such comparative year.


	
 

	
 

	
 


	
 

	
 

	
(f) Where more than one assessment is
imposed by the City of New York for any tax year, whether denominated an
“actual assessment” or “transitional assessment” or otherwise, then the
phrases herein “assessed value” and “assessments” shall mean whichever of the
actual, transitional or other assessment is designated by the City of New
York as the taxable assessment for that tax year.


	
 

	
 

	
 


	
 

	
 

	
(g) The phrase “real estate taxes payable
during the base tax year” shall mean the real estate taxes payable for the
base tax year.


	
 

	
 

	
 


	
 

	
(ii)

	
(a) Before or after the start of each
comparative year, Landlord shall furnish to Tenant a statement of the real
estate taxes payable for such comparative year, and a statement of the real
estate taxes payable during the base tax year (together with copies of the
relevant tax bills for such comparative year and the base tax year). Subject
to subparagraph (f) below, if the real estate taxes payable for such
comparative year exceed the real estate taxes payable for the base tax year,
additional rent for such comparative year, in an amount equal to The
Percentage of the excess, shall be due from Tenant to Landlord, and such
additional rent shall be payable by Tenant to Landlord as follows: After
Landlord has furnished Tenant with the aforesaid statement, Tenant shall pay
Landlord, together with the monthly installments of fixed annual rent due on
June 1 and December 1 of each such comparative year, an amount equal to
one-half (1/2) of the total sum of the tax escalation additional rent due
from Tenant to Landlord pursuant to such statement for such comparative year.
If, during the term of this lease, any such taxes are required by the taxing
authority or by a mortgagee’s tax escrow requirements, to be paid in full or
in quarterly or other installments, on any other date or dates than as
presently required, then Tenant’s tax escalation payment(s) shall be
correspondingly accelerated so that said payments are due at least thirty
(30) days prior to the date proportionate payments are due to the taxing
authority or the mortgagee. If a statement is furnished to Tenant after the
commencement of the comparative year in respect of which such statement is
rendered, Tenant shall, within thirty (30) days thereafter, pay to Landlord
an amount equal to those installments or the total tax escalation payable as
provided in the preceding sentence during the period prior to the first day
of the month next succeeding the month in which the applicable statement has
been furnished. The benefit of any discount for any earlier payment or
prepayment of real estate taxes shall accrue solely to the benefit of
Landlord, and such discount shall not be subtracted from the real estate
taxes payable for any comparative year. Notwithstanding anything




16









	
 

	
 

	
 


	
 

	
 

	
contained herein to the contrary, if
Landlord fails to substantially complete Landlord’s Work on or before the
First Outside Date, then Tenant’s obligation to commence payment of real
estate tax escalation additional rent hereunder shall be extended beyond the
first day of the first comparative year by one day for each day after the
First Outside Date that Landlord fails to substantially complete Landlord’s
Work.


	
 

	
 

	
 


	
 

	
 

	
(b) Should the real estate taxes payable
during the base tax year be reduced by final determination of legal
proceedings, settlement or otherwise, then, the real estate taxes payable
during the base tax year shall be correspondingly revised, the additional
rent theretofore paid or payable hereunder for all comparative years shall be
recomputed on the basis of such reduction, and Tenant shall pay to Landlord
as additional rent, within thirty (30) days after being billed therefor, any
deficiency between the amount of such additional rent as theretofore computed
and the amount thereof due as the result of such recomputations. Should the
real estate taxes payable during the base tax year be increased by such final
determination of legal proceedings, settlement or otherwise, then appropriate
recomputation and adjustment also shall be made.


	
 

	
 

	
 


	
 

	
 

	
(c) If Tenant shall have made a payment of
additional rent under this paragraph and Landlord shall receive a refund of
any portion of the real estate taxes payable for any comparative year after
the base tax year on which such payment of additional rent shall have been
based, as a result of a reduction of such real estate taxes by final
determination of legal proceedings, settlement or otherwise, Landlord shall
promptly after receiving the refund credit to Tenant The Percentage of the
refund less The Percentage of expenses (including reasonable attorneys’ and
appraisers’ fees) incurred by Landlord in connection with any such
application or proceeding. If prior to the payment of taxes for any
comparative year, Landlord shall have obtained a reduction of that comparative
year’s assessed valuation of the building project, and therefore of said
taxes, then the term “real estate taxes” for that comparative year shall be
deemed to include the amount of Landlord’s expenses in obtaining such
reduction in assessed valuation, including reasonable attorneys’ and
appraisers’ fees.


	
 

	
 

	
 


	
 

	
 

	
(d) The statement of the real estate taxes
to be furnished by Landlord as provided above shall be certified by Landlord
and shall constitute a final determination as between Landlord and Tenant of
the real estate taxes for the periods represented thereby, unless Tenant
within one hundred twenty (120) days after they are furnished shall give a
written notice to Landlord that it disputes their accuracy or their
appropriateness, which notice shall specify the particular respects in which
the statement is inaccurate or inappropriate. If Tenant shall so dispute said
statement then, pending the resolution of such dispute, Tenant shall pay the
additional rent to Landlord in accordance with the statement furnished by
Landlord.


	
 

	
 

	
 


	
 

	
 

	
(e) Any delay or failure of Landlord in
billing any tax escalation hereinabove provided, for a period of more than
eighteen (18) months after the underlying real




17









	
 

	
 

	
 


	
 

	
 

	
estate taxes are due and have been billed
by the applicable taxing authority, shall constitute a waiver of such tax
escalation, but shall not constitute a waiver of or in any way impair the
continuing obligation of Tenant to pay any other tax escalation hereunder.


	
 

	
 

	
 


	
 

	
 

	
(f) ICIP/Building Improvement Program.
Landlord has applied for benefits under the New York City Industrial
Commercial Incentive Program (“ICIP”) in connection with the Building
Improvement Program (as hereinafter defined in Article 23D). If an abatement
in real estate taxes has been granted for the building project for the base
tax year by exempting from taxation any portion of a physical assessment
pursuant to the ICIP, then when, as and if the abatement is reduced, the
amount of real estate taxes that would have been paid (at the tax rate in
effect for the base tax year) during the base tax year on that portion of the
physical assessment then no longer subject to the ICIP abatement shall be
added to the real estate taxes payable in the base tax year. If an ICIP
abatement is not granted with respect to the base tax year, then that portion
of the real estate taxes payable for the building project for the base tax
year and any comparative year due solely by reason of the Building
Improvement Program shall be excluded from the real estate taxes for such
years when calculating the real estate tax escalation additional rent payable
hereunder. In the event of a dispute regarding the provisions of this
subparagraph (f), (1) such dispute shall be resolved by arbitration in
accordance with the provisions of Article 41 of this lease (provided that the
standard to be applied in such arbitration is the correct application of New
York law with respect to this matter); and (2) pending the resolution of such
dispute, Tenant shall pay Landlord real estate tax escalation additional rent
hereunder in accordance with Landlord’s determination of the amounts due, but
without prejudice to Tenant’s position in such dispute. If, upon resolution
of such dispute, it is determined that Tenant overpaid the amount of any real
estate tax escalation additional rent actually due hereunder, then the amount
of such overpayment shall be promptly refunded to Tenant with interest
thereon at the Applicable Rate from the date of such overpayment.


	
 

	
 

	
 


	
          D. Failure
to Bill: Except as otherwise set forth above, Landlord’s failure
to bill or tender any escalation statement or any other statement or any
delay in billing or tendering any such escalation statement or other
statement for all or any portion of any amount otherwise payable pursuant to
this lease shall not constitute a waiver of Landlord’s rights to bill Tenant
at any subsequent time (during or subsequent to the term of this lease)
retroactively for the entire amount so unbilled (which previously unbilled
amount shall be payable within thirty (30) days after demand therefor) and to
collect any such amount. Except as otherwise set forth above, Tenant’s
obligation to pay any fixed annual rent and additional rent shall survive the
expiration or earlier termination of this lease.


	
 


	
          E.
Intentionally Deleted.


	
 


	
          F. No
Reduction in Fixed Annual Rent: In no event shall the fixed annual
rent under this lease be reduced by virtue of any decrease in the amount of
any additional rent payment under this Article or any other provision of this
lease. If Landlord receives from Tenant




18





any payment less than the sum
of the fixed annual rent and additional rent then due and owing pursuant to
this lease, Tenant hereby waives its right, if any, to designate the items to
which such payment shall be applied and agrees that Landlord in its sole
discretion may apply such payment in whole or in part to any fixed annual rent,
additional rent or to any combination thereof then due and payable hereunder.
Unless Landlord shall otherwise expressly agree in writing, acceptance of any
portion of the fixed annual rent or additional rent from anyone other than
Tenant shall not relieve Tenant of any of its other obligations under this
lease, including the obligation to pay other fixed annual rent and additional
rent, and Landlord shall have the right at any time, upon notice to Tenant, to
require Tenant (rather than someone other than Tenant) to pay the fixed annual
rent and additional rent payable hereunder directly to Landlord. Furthermore,
such acceptance of fixed annual rent and additional rent shall not be deemed to
constitute Landlord’s consent to an assignment of this lease or a subletting or
other occupancy of the demised premises by anyone other than Tenant, nor a
waiver of any of Landlord’s rights or Tenant’s obligations under this lease.


          G. Partial
Comparative Year: If the Rent Commencement Date shall occur after
the first day of the first comparative year, then the additional rent due under
any paragraph of this Article for the first comparative year (as defined in the
relevant paragraph) shall be a proportionate share of said additional rent for
the entire comparative year, said proportionate share to be based upon the
length of time that the lease term will be in existence during such first
comparative year. Upon the date of any expiration or termination of this lease
(except termination because of Tenant’s default) whether the same be the date
herein above set forth for the expiration of the term or any prior or subsequent
date, a proportionate share of said additional rent for such comparative year
during which such expiration or termination occurs shall immediately become due
and payable by Tenant to Landlord, if it was not theretofore already billed and
paid. The said proportionate share shall be based upon the length of time that
this lease shall have been in existence during such comparative year. Landlord
shall, as soon as reasonably practicable, compute the additional rent due from
Tenant, as aforesaid, which computations shall either be based on that
comparative year’s actual figures or be an estimate based upon the most recent
statements theretofore prepared by Landlord and furnished to Tenant as may be
required under any paragraph in this Article. If an estimate is used, then
Landlord shall cause statements to be prepared on the basis of the comparative
year’s actual figures promptly after they are available, and thereupon,
Landlord and Tenant shall make appropriate adjustments of any estimated
payments theretofore made.


          H. Survival of
Obligations: Except as otherwise set forth above, Landlord and
Tenant’s obligation to make the adjustments and payments referred to in the
proceeding paragraphs of this Article shall survive any expiration or termination
of this lease.


          I. No Waiver: Except as otherwise
set forth above, any delay or failure of Landlord in billing any cost of living
adjustment, operating expense escalation or tax escalation hereinabove provided
shall not constitute a waiver of or in any way impair the continuing obligation
of Tenant to pay the same hereunder.


3. ELECTRICITY


          Subject
to the provisions of subparagraph C(ii) of this Article, Landlord shall furnish


19





electricity to Tenant during
the term of this lease on a submetering basis. Electricity and electric
service, as used herein, shall mean any element affecting the generation,
transmission, and/or distribution or redistribution of electricity, including
but not limited to services which facilitate the distribution of service.


          A.
Submetering: If and so long as Landlord provides electricity to the
demised premises on a submetering basis, Tenant covenants and agrees to
purchase the same from Landlord or Landlord’s designated agent at Landlord’s
Cost (as hereinafter defined), plus six percent (6%) thereof. Where more than
one meter measures the service of Tenant in the Building, the KWHR and KW
recorded by each meter shall be added, and the aggregate billed as if billed
from a single meter. Bills therefor shall be rendered at such times as Landlord
may elect, but not more frequently than monthly, and the amount, as computed
from a meter or meters and determined by Landlord’s electrical consultant in
accordance with this Article, shall be deemed to be, and be paid as, additional
rent.


                    (i)
“Landlord’s Cost” for such redistributed electricity shall be equal to
Landlord’s Cost Rates (as hereinafter defined) for the relevant billing period
multiplied by Tenant’s electricity consumption (i.e., energy and demand) based
on the aforedescribed meter readings as herein provided.


	
 

	
 


	
 

	
“Landlord’s Cost Rates” shall be determined
as follows:


	
 

	
 


	
 

	
“Landlord’s Electricity Consumption Cost”
(Landlord’s cost per KWHR) for any given Utility Billing Period, shall mean
the amount arrived at by dividing (a) Landlord’s KWHR cost, as indicated on
the applicable utility bill (inclusive of any taxes, including any taxes
included in the computation of said utility bill) for Landlord’s Electricity
Consumption for said Utility Billing Period, inclusive of any fuel
adjustments or rate adjustments contained in said utility bill allocable to
Landlord’s Electricity Consumption, by (b) Landlord’s Electricity Consumption
as indicated on said bill.


	
 

	
 


	
 

	
“Landlord’s Electricity Demand Cost”
(Landlord’s Cost per KW) for any given Utility Billing Period, shall mean the
amount arrived at by dividing (a) Landlord’s KW cost, as indicated on the
applicable utility bill (inclusive of any taxes, including any taxes included
in the computation of said utility bill) for Landlord’s Electricity Demand
for said Utility Billing Period, inclusive of any rate adjustments contained
in said utility bill allocable to Landlord’s Electricity Demand (provided
that same have not been included in the computation of Landlord’s Electricity
Consumption Cost), by (b) Landlord’s Electricity Demand as indicated on said
bill.


	
 

	
 


	
 

	
For purposes of determining Landlord’s
Electricity Consumption Cost and Landlord’s Electricity Demand Cost, (a) each
amount appearing on any utility bill for demand, energy, fuel or rate
adjustments shall be taken into account (where it cannot be determined from
the utility bill whether such amount relates to consumption or to demand, it
shall be deemed to relate to demand) and (b) there shall be added to
Landlord’s Cost a sum equal to Landlord’s fees paid to the




20









	
 

	
 


	
 

	
electrical consultant and Landlord’s
overhead, in connection with billing and computing electricity charges for
Tenant.


	
 

	
 


	
 

	
It is anticipated that electric rates,
charges, etc. may be changed by virtue of changes in methods of billing,
and/or electricity purchases and the redistribution thereof, fluctuations in
the market price of electricity, changes in electricity and electric service
(as defined below), and by the obtaining of electricity from public utilities
and/or other providers in addition to, or instead of, Consolidated Edison of
New York. Accordingly, Landlord’s Cost Rates shall also include Landlord’s
payments for electricity or electric service, for the applicable monthly or
other period, to utilities and/or other providers. Any such portions of
Landlord’s Cost Rates for the Utility Billing Period, or other billing
period, shall be equitably allocated to, and included in, this Tenant’s share
of Landlord’s Cost for electricity redistributed to Tenant.


	
 

	
 


	
 

	
For purposes of this Article, the following
terms shall have the following meanings:


	
 

	
 


	
 

	
“Utility Billing Period” shall mean the
respective period(s) of electricity consumption and demand for which Landlord
is charged on each successive bill from the utility company or companies, or
other providers, furnishing electricity to the building.


	
 

	
 


	
 

	
“Landlord’s Electricity Consumption,” for
any given Utility Billing Period, shall mean the number of kilowatt-hours of
electricity consumed in and for the building (including common areas,
tenantable areas and mechanical areas) during said Utility Billing Period, as
indicated on the applicable utility bill(s).


	
 

	
 


	
 

	
“Landlord’s Electricity Demand,” for any
given Utility Billing Period, shall mean the number of kilowatts of
electricity demanded in and for the building (including common areas,
tenantable areas and mechanical areas) during said Utility Billing Period, as
indicated on the applicable utility bill(s).


	
 

	
 


	
 

	
Electricity and electric service, as used
herein, shall mean any element affecting the generation, transmission, and/or
distribution or redistribution of electricity, including but not limited to
services which facilitate the distribution of service.




                    (ii)
The parties acknowledge that the demised premises are not presently submetered.
It is agreed that Landlord, at its expense and as part of Landlord’s Work, will
install a submeter or submeters and any and all wiring and other equipment which
is proper and necessary to furnish redistributed electricity to the demised
premises on a submetering basis.


          B. Rent
Inclusion: (i) If the requirements of law change so that Landlord
may not legally furnish electricity to Tenant on a submetering basis, then and
only in such event, Landlord reserves the right, at any time upon thirty (30)
days’ written notice to Tenant, to change its furnishing of electricity to
Tenant from a submetering basis to a rent inclusion basis. If and so long as
Landlord provides electricity to the demised premises on a rent inclusion
basis, Tenant


21





agrees that the fixed annual
rent shall be increased by the amount of the Electricity Rent Inclusion Factor
(“ERIF”), as hereinafter defined, to compensate Landlord as hereinafter
provided, for its obtaining and making available to Tenant the redistribution
of electric current as an additional service, for Tenant’s reasonable use of
air conditioning equipment, kitchen and small appliances, ordinary lighting and
office equipment, during ordinary business hours. The “ERIF” shall be the
amount determined by applying the reasonably estimated electrical load of
Tenant, which shall be deemed to be the demand (KW) (which shall reflect a
proper diversity factor), and hours of use thereof, which shall be deemed to be
the energy (KWH), as determined by the electrical consultant as hereinafter
provided, to the average rate charged for such load and energy usage in the
SC-4, Rate I Service Classification in effect for the twelve (12) month period
ending April 1, 2000 (and not the time-of-day schedule, if any).


                    (ii)
The parties acknowledge that the fixed annual rent hereinabove set forth has
not yet been, but may be, increased by the ERIF. Tenant, therefore, agrees to
have the fixed annual rent hereinabove set forth so increased by an ERIF of
$3.00 per rentable square foot, to be paid in equal monthly installments, in
advance from the date when Landlord commenced to furnish electricity to Tenant
on a rent inclusion basis.


                    (iii)
If the cost to Landlord of electricity shall have been, or shall be, increased
or decreased subsequent to April 1, 2000 (whether such change occurs prior to
or during the term of this Lease), by change in Landlord’s electric rates or
service classifications, or electricity charges, including changes in market
prices, for by any increase or decrease, subsequent to the last such electric
rate or service classification change or market price change, in fuel
adjustments or charges of any kind, or by taxes, imposed on Landlord’s
electricity purchases, or on Landlord’s electricity redistribution, or for any
other such reason, then the aforesaid ERIF portion of the fixed annual rent
shall be increased by the actual amount of the increase in cost due to changes
in electric rates or service classifications or market prices, and, also
Tenant’s payment obligation, for electricity redistribution, shall change from
time to time so as to reflect any such increase or decrease in fuel adjustments
or charges, and such taxes. Any such change in Landlord’s cost due to change in
Landlord’s electric rates or service classifications or market prices, shall be
computed on the basis of the average consumption of electricity for the
building for the twelve full months immediately prior to the rate change or
other such changes in cost, energy and demand, and any changed methods of or
rules on billing for same, applied on a consistent basis to the new electric
rate or service classification or market price and to the immediately prior
existing electric rate or service classification or market price. If the
average consumption (energy and demand) for the entire building for said prior
(12) months cannot reasonably be applied and used with respect to changed methods
of or rules on billing, then the increase or decrease shall be computed by the
use of the average consumption (energy and demand) for the entire building for
the first three (3) months after such change, projected to a full twelve (12)
months, so as to reflect the different seasons; and that same consumption, so
projected, shall be applied to the rate and/or service classification or market
price which existed immediately prior to the change. The parties agree that a
reputable, independent electrical consultant firm, selected by Landlord
(“Landlord’s consultant”), may from time to time make surveys in the demised
premises covering the electrical equipment and fixtures and use of current
therein. If such survey shall disclose a change in Tenant’s electrical load
(reflecting a proper diversity factor for demand) or hours of energy use, then
the electrical load and energy usage portion of the ERIF shall be changed in
accordance with such survey, and the ERIF redetermined, accordingly, by
Landlord’s consultant.


22





The fixed annual rent shall be
appropriately adjusted effective as of the date of said survey. In no event,
whether because of surveys, rate changes or for any other reason, is the ERIF
to be less than the originally specified $3.00 per rentable square foot per
annum.


                    (iv)
The survey determinations by Landlord’s electrical consultant shall be binding
and conclusive on Landlord and Tenant from and after the delivery of copies of
such determinations to Landlord and Tenant, unless, within sixty (60) days
after delivery thereof, Tenant disputes such determination. If Tenant so
disputes such determination, it shall, at its own expense, obtain from a
reputable, independent electrical consultant its own determinations in
accordance with the provisions of this Article. Tenant’s consultant and
Landlord’s consultant then shall seek to agree. If they cannot agree within
thirty (30) days they shall choose a third reputable electrical consultant,
whose cost shall be shared equally by the parties, to make similar
determinations which shall be controlling. (If they cannot agree on such third
consultant within ten (10) days, than either party may apply to the Supreme
Court in the County of New York for such appointment.) However, pending such controlling
determinations, Tenant shall pay to Landlord the amount of additional rent or
ERIF in accordance with the determinations of Landlord’s electrical consultant.
If the controlling determinations differ from Landlord’s electrical consultant,
then the parties shall promptly make adjustment (by rent credit or payment) for
any deficiency owed by Tenant or overage paid by Tenant.


          C. General
Conditions: (i) At the option of Tenant, Tenant may purchase from
Landlord or its agents all lamps and bulbs used in the demised premises and pay
for the cost of installation thereof, at building standard charges. If all or
part of the submetering additional rent or the ERIF payable in accordance with
paragraph A or B of this Article becomes uncollectible or reduced or refunded
by virtue of any law, order or regulation, the parties agree that, at
Landlord’s option, in lieu of submetering additional rent or ERIF, and in
consideration of Tenant’s use of the building’s electrical distribution system
and receipt of redistributed electricity and payment by Landlord of
consultant’s fees and other redistribution costs, the fixed annual rental
rate(s) to be paid under this lease shall be increased by an “alternative
charge” which shall be a sum equal to $3.00 per year per rentable square foot
of the demised premises, changed in the same percentage as any increases and
decreases in the cost to Landlord for electricity for the entire building
subsequent to April 1, 2000 (but in no event below said $3.00 per year per rentable
square foot), because of electric rate or service classification or market
price changes, such percentage change to be computed as in paragraph B
provided.


          (ii)
Except for its negligence or willful misconduct, Landlord shall not be liable
to Tenant for any loss or damage or expense which Tenant may sustain or incur
if either the quantity or character of electric service is changed or is no
longer available or suitable for Tenant’s requirements. Landlord agrees to
provide Tenant with an electrical capacity of six (6) watts per rentable square
foot of demand load, for all purposes other than any building air-conditioning
systems and equipment servicing the demised premises, through the electrical
distribution panels described in subparagraph B(iv) of Article 23 hereof.
Tenant covenants and agrees that at all times its use of electric current shall
never exceed such six (6) watts per rentable square foot of demand load. Tenant
agrees not to connect any additional electrical equipment to the building
electric distribution system, other than lamps, typewriters, personal
computers, printers, servers, scanners, fax machines, duplicating machines,
small kitchen appliances and other office machines which consume comparable
amounts of electricity, without Landlord’s


23





prior written consent, which
consent shall not be unreasonably withheld, conditioned or delayed. Nothing
herein shall be deemed to obligate Landlord to furnish Tenant with electricity
in excess of six (6) watts per rentable square foot of demand load. However, it
is agreed that Tenant shall pay Landlord a riser connection fee of $150 per amp
per phase (based on a service of 208 volts, 3 phase) for any additional
electrical capacity which Landlord, at Tenant’s request (and subject to the provisions
of this Article 3), makes available to Tenant during the term hereof, which fee
shall be deemed additional rent under this lease and shall be payable within
thirty (30) days after demand (and which fee shall be subject to increase, from
time to time, during the term hereof). Any such additional electric service
which Landlord makes available to Tenant (at Tenant’s request) shall be in a
location designated by Landlord. Any riser or risers to supply such additional
electrical requirements of Tenant, upon written request of Tenant, will be
installed by Landlord, at the sole cost and expense of Tenant, if, in
Landlord’s reasonable judgment, the same are necessary and will not cause
permanent damage or injury to the building or demised premises or cause or
create a dangerous or hazardous condition or entail excessive or unreasonable
alterations, repairs or expense or interfere with or disturb other tenants or
occupants. In addition to the installation of such riser or risers, Landlord
will also at the sole cost and expense of Tenant, install all other equipment
proper and necessary in connection therewith subject to the aforesaid terms and
conditions. The parties acknowledge that they understand that it is anticipated
that electric rates, charges, etc., may be changed by virtue of time-of-day
rates or other methods of billing, electricity purchases and the redistribution
thereof, and that the references in the foregoing paragraphs to changes in
methods of or rules on billing are intended to include any such changes. If the
requirements of law change so that Landlord may not legally furnish electricity
to Tenant on a submetering or any other basis, then and only in such event
Landlord reserves the right to terminate the furnishing of electricity, at any
time, upon thirty (30) days’ written notice to the Tenant, in which event the
Tenant may make application directly to the public utility and/or other
providers for the Tenant’s entire separate supply of electric current and
Landlord shall permit its wires and conduits, to the extent available and
safely capable, to be used for such purpose, but only to the extent of Tenant’s
then authorized load. Any meters, risers, or other equipment or connections
necessary to furnish electricity on a submetering basis or to enable Tenant to
obtain electric current directly from such utility and/or other providers shall
be installed by Landlord and the cost thereof shall be shared equally by
Landlord and Tenant (it being agreed that the portion thereof for which Tenant
is responsible shall be deemed additional rent under this lease and shall be
due within thirty (30) days after demand therefor). Only rigid conduit,
electricity metal tubing (EMT) or other conduit permitted by applicable law
will be allowed. Landlord, upon the expiration of the aforesaid sixty (60)
days’ written notice to the Tenant (plus such additional time as is reasonably
necessary for Tenant, using reasonable diligence, to obtain electricity
directly from the public utility) may discontinue furnishing the electric
current but this lease shall otherwise remain in full force and effect. If
Tenant was provided electricity on a rent inclusion basis when it was so
discontinued, then commencing when Tenant receives such direct service and as
long as Tenant shall continue to receive such service, the fixed annual rent
payable under this lease shall be reduced by the amount of the ERIF which was
payable immediately prior to such discontinuance of electricity on a rent
inclusion basis.


          (iii)
Alternative Service Providers: Landlord on the date hereof obtains electric
service for the building from Consolidated Edison Company. Notwithstanding
anything herein set forth to the contrary, if permitted by law, Landlord may
contract separately with Consolidated


24





Edison Company and/or one or
more other providers (“Alternative Service Providers”) to provide one or more
of the component services which together make up the entire package of electric
service (e.g., transmission, generation, distribution and ancillary services)
to the building. If Landlord elects to contract with any Alternative Service
Provider, Tenant shall cooperate with Landlord and each such Alternative
Service Provider to effect any change to the method or means of providing and
distributing electricity service to the demised premises or any other portion
of the building by reason of such change in the provision of electricity. Such
cooperation shall include but not be limited to providing Landlord or any such
Alternative Service Provider and any other person reasonable access to the
demised premises and to all wiring, conduit, lines, feeders, cable and risers,
electricity panel boxes and any other component of the electrical distribution
system within or adjacent to the demised premises.


4. ASSIGNMENT


          A.
Except as otherwise provided in this Article 4, Tenant, for itself, its heirs,
distributees, executors, administrators, legal representatives, successors and
assigns, expressly covenants that it shall not assign, mortgage or encumber
this lease, nor underlet, or suffer or permit the demised premises or any part
thereof to be used or occupied by others, without the prior written consent of
Landlord in each instance. The transfer of a majority of the issued and
outstanding capital stock of Tenant or any corporate tenant or subtenant of
this lease or a majority of the total record equity interests (or a majority of
the ultimate beneficial ownership interest) in any partnership tenant or
subtenant or any other form of entity or organization, however accomplished,
and whether in a single transaction or in a series of transactions, and the
conversion of a tenant or subtenant entity to another form of entity,
including, without limitation, a limited liability company or a limited
liability partnership, or a transfer of control of any entity shall not be
deemed an assignment of this lease or of such sublease, unless the principal
purpose of the transaction is to avoid the prohibitions of this Article 4 on
assignment and subletting. The merger or consolidation of Tenant or a
subtenant, whether a corporation, partnership, limited liability company or
other form of entity or organization, where the net worth of the resulting or
surviving corporation, partnership, limited liability company or other form of entity
or organization, is less than the net worth of Tenant or subtenant immediately
prior to such merger or consolidation shall be deemed an assignment of this
lease or of such sublease, but if such net worth is the same as or higher than
the net worth of Tenant or a subtenant immediately prior to such merger or
consolidation, then such merger or consolidation shall not be deemed an
assignment and no consent from Landlord shall be required. If this lease be
assigned, or if the demised premises or any part thereof be underlet or
occupied by anybody other than Tenant, Landlord may, after default by Tenant
beyond any applicable notice and/or grace period hereunder, collect rent from
the assignee, undertenant or occupant, and apply the net amount collected to the
rent herein reserved, but no assignment, underletting, occupancy or collection
shall be deemed a waiver of the provisions hereof, the acceptance of the
assignee, undertenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Landlord to an assignment or underletting shall not
in any way be construed to relieve Tenant from obtaining the express consent in
writing of Landlord to any further assignment or underletting. In no event
shall any permitted subtenant assign or encumber its sublease or further sublet
all or any portion of its sublet space, or otherwise suffer or permit the
sublet space or any part thereof to be used or occupied by others, except in compliance
with the applicable provisions of this Article 4. A


25





material modification or
amendment, or any extension of a sublease shall be deemed a sublease. In no
event may this lease be assigned to or any portion of the demised premises be
underlet to a “Prohibited Person” (as hereinafter defined in Article 48). If
any lien is filed against the demised premises or the building for brokerage
services claimed to have been performed for Tenant in connection with an
assignment or subletting, whether or not actually performed, the same shall be
discharged by Tenant within thirty (30) days thereafter, at Tenant’s expense,
by filing the bond required by law, or otherwise, and Tenant agrees to
indemnify Landlord and its agents and hold them harmless from and against any
and all claims, losses or liability resulting from such lien for brokerage
services rendered. The listing of a name other than that of Tenant, whether on
the doors of the premises, the building directory or otherwise shall not vest
any right or interest in this lease or the premises and shall not be deemed to
be the consent of landlord to any assignment or transfer of this lease, to any
sublessee of the premises, or to any use or occupancy thereof by anyone not
Tenant.


          B.
(i) If Tenant desires to assign this lease or to sublet all or substantially
all of the demised premises, it shall first submit to Landlord a written
request for consent to such transaction which request shall contain or be
accompanied by the documents described in paragraph C of this Article. Landlord
may then, by notice to such effect given within thirty (30) days after the
receipt of Tenant’s request for consent, terminate this lease on the date (the
“Termination Date”) which shall be the later to occur of (a) the effective date
of the proposed transaction, as specified by Tenant, and (b) the date which is
sixty (60) days following the date Landlord’s termination notice is given.
Tenant shall then vacate and surrender the demised premises on or before the
Termination Date and the term of this lease shall end on the Termination Date
as if that were the original expiration date of the term of this lease. Tenant
shall vacate the demised premises and surrender possession thereof to Landlord,
on or before the Termination Date, in broom clean condition, and Landlord shall
accept the demised premises “as is”.


          (ii)
If Tenant desires to sublet in a single transaction, all or substantially all
of the 14th Floor Portion, all or substantially all of the 15th
Floor Portion, or all or substantially all of all space on any other floor of
the building which is included in the demised premises, for all or
substantially all of the remainder of the term of this lease, then Tenant shall
first submit to Landlord a written request for consent to such transaction,
which request shall contain or be accompanied by the documents described in
paragraph C of this Article. Landlord may then, by notice to such effect given
within thirty (30) days after the receipt of Tenant’s request for consent,
delete from the demised premises the space proposed to be subleased (the
“Deleted Portion”), on the date (the “Deletion Date”) which shall be the later
to occur of (a) the effective date of the proposed transaction, as specified by
Tenant, and (b) the date which is sixty (60) days following the date Landlord’s
deletion notice is given. Upon such Deletion Date, the fixed annual rent and
additional rent due under this lease shall be appropriately proportionately
adjusted, and all other provisions of this lease shall be deemed modified, so
as to reflect such deletion of space from the demised premises. Tenant shall
vacate and surrender the Deleted Portion on or before the Deletion Date, in
broom clean condition, and the term of the leasing of the Deleted Portion shall
end on the Deletion Date as if that were the original expiration date of the
term of the leasing of such space. Landlord shall accept the Deleted Portion
“as is” except that Landlord, at Landlord’s expense, shall perform all such
work and make all such alterations as may be required (a) physically to demise
the Deleted Portion from the remainder of the


26





demised premises (including,
without limitation, separation of building systems and associated wiring, duct
work and piping, and removal of any internal staircase and closing up of the
slab) and to permit lawful occupancy, and (b) if applicable, to make the floor
properly and legally usable as a multi-tenanted floor, including, without
limitation, any work needed to restore public corridors and bathrooms (using
building standard fixtures and finishes); provided, however, if Tenant agreed
to perform such work, at its expense, under the terms of the proposed
assignment or sublease, then Landlord shall do so at Tenant’s reasonable
expense, which shall be deemed additional rent under this lease and shall be
due within thirty (30) days after demand, accompanied by supporting
documentation therefor. Tenant shall reasonably cooperate with Landlord in
connection with any such work, including, without limitation, by providing
Landlord and its contractors with such access to the remaining demised premises
as is necessary to perform such work. Landlord shall use commercially
reasonable efforts to minimize any interference with Tenant’s business
operations in the remaining demised premises; it being understood and agreed,
however, that such work may be performed on Business Days during Business Hours
(each as hereinafter defined in Article 50), except for any demolition, core
drilling or welding, which shall only be performed outside of such Business
Hours.


          C.
If Tenant requests Landlord’s consent to a specific assignment or subletting,
or in any other circumstance where Tenant is required to provide the
information described in this paragraph C, Tenant shall submit in writing to
Landlord (i) the name and address of the proposed assignee or subtenant, (ii) a
duly executed counterpart of the proposed agreement of assignment or sublease,
or a duly executed term sheet or letter of intent setting forth all of the
material terms of the proposed agreement of assignment or sublease, (iii)
reasonably satisfactory information as to the nature and character of the
business of the proposed assignee or subtenant, and as to the nature of its
proposed use of the space, and (iv) banking, financial or other credit
information relating to the proposed assignee or subtenant reasonably
sufficient to enable Landlord to determine the financial responsibility and
character of the proposed assignee or subtenant.


          D.
If Landlord shall not have accepted Tenant’s offer, as provided in paragraph B,
or if paragraph B shall not be applicable, then Landlord will, subject to
paragraph F below, not unreasonably withhold, condition or delay its consent to
Tenant’s request for consent to such specific assignment or subletting. Any
consent of Landlord under this Article shall be subject to the terms of this
Article and the effectiveness of any assignment or sublease under this Article
shall be conditioned upon there being no default by Tenant, beyond any notice
and/or grace period, under any of the terms, covenants and conditions of this
lease at the time that Landlord’s consent to any such subletting or assignment
is requested.


          E.
Tenant understands and agrees that no assignment or subletting shall be
effective unless and until Tenant, upon receiving any necessary Landlord’s
written consent (and unless it was theretofore delivered to Landlord) causes a
duly executed copy of the sublease or assignment to be delivered to Landlord
within ten (10) days after execution thereof. Any such sublease shall provide
that the subtenant shall comply with all applicable terms and conditions of
this lease to be performed by Tenant hereunder. Any such assignment of lease
shall contain an assumption by the assignee of all of the terms, covenants and
conditions of this lease to be performed by Tenant, accruing from and after the
effective date of the transaction.


          F.
Anything herein contained to the contrary notwithstanding:


27





                    (i)
Tenant shall not advertise (but may list with brokers) its space for assignment
or subletting at a rental rate lower than the greater of the then building
rental rate for such space or the rental rate then being paid by Tenant to Landlord.


                    (ii)
The transfer of outstanding capital stock of any corporate tenant, for purposes
of this Article, shall not include sale of such stock which is effected through
the “over-the-counter market” or through any recognized stock exchange.


                    (iii)
No assignment or subletting shall be made:


	
 

	
 


	
 

	
(a) To any person or entity which shall at
that time be a tenant, subtenant or other occupant (or an affiliate thereof,
other than a then existing affiliate which actually requires additional space
for the conduct of its business) of any part of the building, or who dealt
with Landlord or Landlord’s agent (directly or through a broker) with respect
to space in the building during the four (4) months immediately preceding
Tenant’s request for Landlord’s consent, provided that Landlord then has, or
within ninety (90) days from the date Landlord’s consent is requested by
Tenant will have, comparable space for a comparable term available for
leasing);


	
 

	
 


	
 

	
(b) By the legal representatives of Tenant
or by any person to whom Tenant’s interest under this lease passes by
operation of law, except in compliance with the provisions of this Article;


	
 

	
 


	
 

	
(c) To any person or entity for the conduct
of a business which is not in keeping with the standards and the general
character of the building of which the demised premises form a part;


	
 

	
 


	
 

	
(d) Which results in the occupancy of the
demised premises by more than six (6) occupants (including Tenant); and


	
 

	
 


	
 

	
(e) With respect to a sublease, for a term
that shall expire not later than one (1) day prior to the scheduled
expiration date of the term of this lease.




                    (iv)
No subtenant shall have a right to sublet further or assign its sublease
without obtaining Landlord’s prior written consent thereto, which consent shall
be granted or withheld in accordance with the terms of this Article 4 as if
Tenant were requesting it, and provided that Landlord shall have a right of
recapture pursuant to the provisions set forth in paragraph B of this Article
and the right to share in Tenant’s share of the profits of the transaction
pursuant to the provisions of paragraph J of this Article.


          G.
Anything herein above contained to the contrary notwithstanding, the provisions
of paragraph B and paragraph J of this Article 4 shall not apply to, and
Landlord’s consent shall not be required with respect to (i) the use by an
Affiliate (as hereinafter defined) of Tenant of all or any portion of the
premises or (ii) an assignment of this lease or a sublease of all or any
portion of the demised premises to an Affiliate of Tenant, provided that any
such transaction referred to in this clause (ii) complies with the following
provisions of this Article 4: the second sentence of paragraph D; paragraph E
(except that Landlord’s consent shall not be required and


28





Tenant shall provide Landlord
with a copy of the assignment agreement or sublease, as therein described);
paragraph F(iii)(c); paragraph F(iii)(e); paragraph F(iv); paragraph K; the
second sentence of paragraph L; paragraph N; and paragraph O; and provided,
further, that the following provisions of this Article shall be applicable to
any such transaction: the fourth, sixth, seventh, eighth, ninth and tenth
sentences of paragraph A. Tenant shall give Landlord at least ten (10) days’
prior written notice of any transaction covered in this paragraph G, which
notice shall contain or be accompanied by (a) a certified statement by an
officer of Tenant that the proposed assignee or sublessee, as the case may be,
is an Affiliate of Tenant (and describing the relationship), and (b) the
written statement by Tenant confirming that Tenant will remain primarily
liable, jointly and severally with any transferee or assignee, for the
obligations of Tenant under this lease. The term “Affiliate” when used herein
shall mean any entity, directly or indirectly, controlled by, controlling or
under common control with another entity.


          H.
Anything herein above contained to the contrary notwithstanding, the provisions
of paragraph B and paragraph J of this Article shall not apply to, and
Landlord’s consent shall not be required, with respect to an assignment of this
lease or to a sublease of all but not part of the demised premises to any
corporation or other entity (“Successor Entity”) (i) to which all or
substantially all of the assets of Tenant are transferred or sold, or (ii) into
which or with which Tenant may be merged or consolidated, provided that (a) the
net worth (determined in accordance with GAAP or if such entity is a foreign
entity, International Accounting Standards) of such transferee or of the
resulting or surviving corporation or other entity, as the case may be, is
equal to or greater than the net worth of Tenant (determined in accordance with
GAAP) immediately prior to such transfer or transaction; and (b) any such
transaction complies with the following provisions of this Article 4: the
second sentence of paragraph D; paragraph E (except that Landlord’s consent
shall not be required and Tenant shall provide Landlord with a copy of the
assignment agreement or sublease, as therein described); paragraph F(iii)(c);
paragraph F(iii)(e); paragraph F(iv); paragraph K; the second sentence of
paragraph L; paragraph N; and paragraph O; and provided, further, that the
following provisions of this Article shall be applicable to any such
transaction: the fourth, sixth, seventh, eighth, ninth and tenth sentences of
paragraph A. Tenant shall give Landlord at least ten (10) days’ prior written
notice of any such transaction, which notice shall contain or be accompanied by
(x) the documents described in paragraph C of this Article, (y) reasonably
satisfactory proof that the above described net worth and other applicable
provisions of this paragraph have been satisfied, and (z) the written statement
by Tenant confirming that Tenant will (if and to the extent it still exists)
remain primarily liable, jointly and severally with any transferee or assignee,
for the obligations of Tenant under this lease.


          I.
Anything herein above contained to the contrary notwithstanding, the provisions
of paragraphs B, C, E, J, M and N of this Article shall not apply to, and
Landlord’s consent shall not be required, with respect to one or more
sub-lettings, from time to time, of up to an aggregate of 15,000 rentable
square feet of the 15th Floor Portion, provided that (i) Tenant
shall give Landlord fifteen (15) days’ prior written notice of any such
transaction, which notice shall include a copy of the executed sublease
agreement for any such transaction; (ii) the term of any such sublease
agreement shall not expire later than the last day of the tenth Lease Year;
(iii) any such subtenant shall be reputable and financially responsible; (iv)
Tenant shall not be in default under this lease beyond any applicable notice
and/or grace period at the time Tenant enters into any such sublease; and (v)
any such transaction shall comply with the following provisions of


29





this Article 4: paragraph F and
paragraph K (and the following provisions of this Article shall apply to any
such transaction: the fourth, sixth, seventh, eighth, ninth and tenth sentences
of paragraph A).


          J.
(i) In the event of an assignment of this lease or sublease by Tenant of all or
a portion of the demised premises (except with respect to an assignment or
sublease which does not require Landlord’s consent under paragraphs G, H, I, P
or Q of this Article 4), Tenant shall pay to Landlord the following sums: (a)
with respect to a sublease, fifty percent (50%) of (1) any rent or other
consideration (including, without limitation, sums for fixtures, furniture,
equipment and other personal property less, in the case of a sale thereof, the
then unamortized value thereof on Tenant’s federal tax returns) paid to Tenant
by any subtenant which (after first deducting from such rent or other
consideration the costs of Tenant, if any, in effecting the subletting,
including reasonable alteration costs, commissions and legal fees) is in excess
of (2) the rent allocable (strictly on a per square foot basis, without regard
to any other allocation of value, by dividing aggregate consideration by the
rentable square feet of the area so sublet) to the subleased space which is
then being paid by Tenant to Landlord pursuant to the terms hereof, and (b)
with respect to an assignment of this lease, fifty percent (50%) of any other
profit or gain (after first deducting from such profit or gain any necessary
expenses incurred) realized by Tenant from any such assignment. All sums
payable hereunder by Tenant shall be payable to Landlord as additional rent as
and when received by Tenant (and shall be payable to Landlord only after Tenant
shall have first deducted and recovered in full the costs described above or in
subparagraph (ii) below).


                    (ii)
With respect to the deductions permitted under (i)(a) and (i)(b) above, in the
event Tenant assigns this lease or sublets all or any part of the demised
premises during the initial term of this lease, then Tenant may also deduct the
following: (1) in the case of an assignment, the unamortized out-of-pocket
costs to Tenant of the Tenant’s Initial Installation Work; and (2) in the case
of a sublease, on an amortized basis over the term of the sublease, such
unamortized out-of-pocket costs to Tenant of Tenant’s Initial Installation Work
(proportionately adjusted based on the rentable square foot area of the
subleased premises); in either case provided that an executive officer of
Tenant has certified the amount of such out-of-pocket costs to Landlord, in
writing, within thirty (30) days after any request by Landlord therefor (and
simultaneously provided Landlord with reasonable evidence of the facts upon
which such certification was based); provided, however, that if Landlord does
not so request such certification, then such certification shall be delivered
by Tenant to Landlord together with Tenant’s request for Landlord’s consent to
the transaction. It is agreed that, for purposes of determining such
unamortized out-of-pocket costs, Tenant’s Initial Installation Work shall be
amortized on a straight-line basis over the initial term of this lease. For
example, if the cost of the Tenant’s Initial Installation Work is $150,000, and
Tenant thereafter, commencing during the third Lease Year, sublets the entire
demised premises, then the unamortized out-of-pocket cost to Tenant of such
improvements would be $120,000, which (if the sublease rental rate is in excess
of the applicable fixed rental rate under this lease) would be deducted at the rate
of up to $10,000 a year for the remaining twelve (12) years of the term. (Using
the same set of facts, but assuming the Tenant assigns this lease during such 3rd
year of the term, then the entire $120,000 would be deducted at one time
against any payment to the assignor on account of this lease.)


30





          K.
Each subletting pursuant to this Article shall be subject to all of the
covenants, agreements, terms, provisions and conditions contained in this
lease. Notwithstanding any such subletting to any subtenant and/or acceptance
of rent or additional rent by Landlord from any subtenant, Tenant shall and
will remain fully liable for the payment of the fixed annual rent and
additional rent due and to become due hereunder and for the performance of all of
the covenants, agreements, terms, provisions and conditions contained in this
lease on the part of Tenant to be observed and performed and for all of the
acts and omissions of any licensee, subtenant, or any other person claiming
under or through any subtenant that shall be in violation of any of the
obligations of this lease, and any such violation shall be deemed to be a
violation by Tenant.


          L.
Any assignment or transfer shall be made only if, and shall not be effective
until, the assignee shall execute, acknowledge and deliver to Landlord an
agreement whereby the assignee shall unconditionally assume all of the
obligations of this lease on the part or Tenant to be performed or observed,
accruing from and after the date of the assignment or transfer, and whereby the
assignee shall agree that the provisions contained herein shall,
notwithstanding such assignment or transfer, continue to be binding upon it in
respect of all future assignments and transfers. The original named Tenant
covenants that, notwithstanding any assignment or transfer whether or not in
violation of the provisions hereof, and notwithstanding the acceptance of fixed
annual rent and/or additional rent by Landlord from an assignee, transferee or
any other party, the original named Tenant shall remain fully liable for the
payment of the fixed annual rent and additional rent and for the other
obligations of this lease on the part of Tenant to be performed or observed.


          M.
If Landlord shall decline to give consent to any proposed assignment or
sublease, or if Landlord shall exercise Landlord’s option under paragraph B of
this Article, Tenant shall indemnify, defend and hold Landlord harmless from
and against any and all losses, liabilities, costs and expenses (including reasonable
attorneys’ fees) resulting from any claims that may be made against Landlord by
the proposed assignee or subtenant or by any brokers or other persons claiming
a commission or similar compensation in connection with the proposed assignment
or sublease (other than those claiming to have dealt with Landlord or to have
been retained by Landlord). This provision shall survive the expiration or
sooner termination of this lease. Tenant shall pay to Landlord on demand
Landlord’s costs (including, without limitation, reasonable legal fees and, in
the case of a proposed partial sublet, reasonable architect’s and engineering
fees) incurred in connection with reviewing Tenant’s request for any such
consent.


          N.
The joint and several liability of Tenant and any immediate or remote successor
in interest to Tenant, and the due performance of the obligations of this lease
on Tenant’s part to be performed or observed, shall not be discharged, released
or impaired in any respect by any agreement or stipulation made by Landlord
extending the time of, or modifying any of the obligations of, this lease, or
by any waiver or failure of Landlord to enforce any of the obligations of this
lease; provided, however, that in the case of a modification of this lease,
Tenant’s liability under this lease shall be no greater than it would have been
in the absence of such modification.


          O.
The term “Tenant” when used in this Article shall mean the originally
denominated Tenant or each proximate or remote assignee thereof or successor in
interest thereto, but only if and so long as such entity is the tenant under
this lease. The term “control” as


31





used in this Article shall mean
the right to exercise final decision making authority on behalf of any entity.
Wherever in this Article Tenant or any other person is required to provide
Landlord with banking, financial or other credit information such information
shall include, without limitation, a balance sheet (in reasonable detail,
listing all assets and liabilities and prepared in accordance with generally
accepted accounting principles (or, in the case of a foreign company, in
accordance with international accounting standards)) of each relevant party to
the transaction in question certified to Landlord by an independent certified
public accountant.


          P.
Notwithstanding anything to the contrary contained herein, Tenant shall have
the right, without the prior consent of Landlord, and without being subject to
paragraph B or J of this Article, to enter into license agreements for the use
of desk space (“Desk Space”) within the demised premises only with third party
outsourced service providers using such Desk Space to service Tenant or
Tenant’s Affiliates at the demised premises (provided that Tenant’s third party
auditors may also service Tenant’s Affiliates not located at the demised
premises), including, but not limited to, marketing personnel, auditors,
consultants, professional advisors, commercial partners, accountants, mail room
facilities, photocopy facilities, messenger facilities and other vendors,
provided that Tenant shall give Landlord at least ten (10) days’ prior written
notice of any such transaction, such Desk Space is not separately demised, and
such licensing agreements are not being entered into to violate the provisions
of this lease prohibiting assignment and sublettings. Notwithstanding anything
contained herein to the contrary, in no event shall any use of such Desk Space
vest in such user (“Desk Space User”) any rights or interest under this lease
or in the demised premises or any portion thereof.


          Q.
Notwithstanding anything to the contrary contained herein, Tenant shall have
the right, without prior consent of Landlord, and without being subject to
paragraph B or J of his Article, to enter into a license agreement or sublease
for the use of office space, which shall be undivided and consist of less than
two thousand (2,000) rentable square feet on each of the 14th Floor
Portion and the 15th Floor Portion, 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 Tenant shall
give Landlord at least ten (10) days’ prior written notice of any such
transaction, and such occupancy shall comply in all respects with all
applicable laws, rules and regulations (including, without limitation, the
provisions of the New York City Building Code).


          R.
(i) IN NO EVENT SHALL TENANT BE ENTITLED TO MAKE, NOR SHALL TENANT MAKE, ANY
CLAIM, AND TENANT HEREBY WAIVES ANY CLAIM, FOR MONEY DAMAGES (NOR SHALL TENANT
CLAIM ANY MONEY DAMAGES BY WAY OF SET-OFF, COUNTERCLAIM OR DEFENSE) BASED UPON
ANY CLAIM OR ASSERTION BY TENANT THAT LANDLORD HAS UNREASONABLY WITHHELD OR
UNREASONABLY CONDITIONED OR UNREASONABLY DELAYED ITS CONSENT OR APPROVAL TO A
PROPOSED ASSIGNMENT OR SUBLETTING AS PROVIDED FOR IN THIS LEASE. TENANT’S SOLE
REMEDY SHALL BE AN ACTION OR PROCEEDING TO ENFORCE ANY SUCH PROVISION, OR FOR
SPECIFIC PERFORMANCE, INJUNCTION OR DECLARATORY JUDGMENT, OR TO REFER THE SAME
TO EXPEDITED ARBITRATION PURSUANT TO ARTICLE 41 OF THIS LEASE. HOWEVER, THE
PROVISIONS OF THIS SUBPARAGRAPH R(i) SHALL NOT BE APPLICABLE IF IT IS


32





FINALLY DETERMINED BY A COURT
THAT LANDORD ACTED MALICIOUSLY OR IN BAD FAITH IN WITHOLDING OR DELAYING SUCH
CONSENT OR APPROVAL.


                    (ii)
If Tenant desires to determine any dispute between Landlord and Tenant as to
whether Landlord has unreasonably withheld, unreasonably conditioned or
unreasonably delayed its consent or approval to a proposed assignment or
subletting as provided for in this Article, such dispute shall be settled and
finally determined by expedited arbitration in accordance with the provisions
of Article 41 of this lease.


          S.
If Landlord does not exercise its option under paragraph B of this Article, and
if Tenant effects a sublease of the entire demised premises, all or
substantially all of the 14th Floor Portion, or all or substantially
all of the 15th Floor Portion, for all or substantially all of the
entire remaining term of this lease, less one day (a “Covered Sublease”), and
if the term of this lease shall terminate prior to the last day of the
fifteenth Lease Year as a result of a default by Tenant hereunder, then, if and
so long as the subtenant under the Covered Sublease (a “Covered Subtenant”) is
not in default beyond any applicable notice and/or grace period thereunder, the
Covered Subtenant, at its option, to be exercised by written notice to Landlord
not later than fifteen (15) days after notice to the Covered Subtenant of the
effective date of the termination of this lease due to Tenant’s default (time
being of the essence), may elect to remain in possession of premises demised
under the Covered Sublease (the “Covered Sublease Premises”), from and after
the effective date of such termination, pursuant to all of the terms, covenants
and conditions of the Covered Sublease, with the same force and effect as if
Landlord, as sublandlord, and the Covered Subtenant, as subtenant, had entered
into the Covered Sublease as of such effective date for a term equal to the
unexpired term of the Covered Sublease, in which event Landlord and the Covered
Subtenant shall attorn to and recognize each other and Landlord and the Covered
Subtenant shall have the same rights, obligations and remedies under the
Covered Sublease as were had by Tenant and the Covered Subtenant thereunder
prior to such effective date, respectively, except that: (i) the fixed annual
rent under the Covered Sublease shall be equal to the greater of (a) the fixed
annual rent payable under the Covered Sublease, and (b) the fixed annual rent
payable under this lease (proportionately adjusted for the size of the Covered
Sublease Premises, if same does not cover the entire demised premises
hereunder); (ii) the Covered Sublease shall be deemed modified so that (in lieu
of any obligation of the Covered Subtenant to pay any tax or operating expense
escalation additional rent to Tenant under the Covered Sublease) the Covered
Subtenant shall be obligated to pay Landlord real estate tax escalation
additional rent and operating expense escalation additional rent in accordance
with the applicable provisions of Article 2 of this lease (except that, if the
Covered Sublease Premises does not cover the entire demised premises hereunder,
“The Percentage” shall be determined by a fraction, the numerator of which is
the rentable square foot area of the Covered Sublease Premises, and the
denominator of which is 2,720,595); and (iii) in no event shall Landlord be (a)
obligated to do or complete any work obligations of the Tenant in the demised
premises; or (b) liable for any act, omission or default of Tenant (unless
relating to a circumstance which continues after the effective date of such
termination, in which event Landlord’s sole obligation shall be to remedy or
cure such circumstance); or (c) subject to any offsets, claims or defenses
which the Covered Subtenant might have against Tenant; or (d) bound by any
fixed annual rent or additional rent which the Covered Subtenant might have
paid to Tenant for more than one (1) month in advance; or (e) bound by any
modification, amendment or abridgment of the Covered Sublease made without
Landlord’s prior written approval. The provisions of this paragraph S


33





shall be self-operative without
the need for further documentation; provided, however, that, upon Landlord’s
request, a Covered Subtenant shall execute such documents and instruments
(including, without limitation, a new lease upon the executory terms of the
Covered Sublease, as modified hereby) as Landlord reasonably requires to
confirm or further effect such non-disturbance and attornment.


5. DEFAULT


          A.
Landlord may terminate this lease on five (5) days’ notice: (a) if Tenant shall
have failed to pay any installment of fixed annual rent or additional rent or
any other payment when due hereunder, and such failure shall have continued for
a period of ten (10) days after notice to Tenant thereof; or (b) if Tenant
shall have failed to cure a default in the performance of any covenant of this
lease (except the payment of rent), or any rule or regulation hereinafter set
forth, within thirty (30) days after written notice thereof from Landlord, or
if such default cannot be completely cured in such time, if Tenant shall not
promptly proceed to cure such default within said thirty (30) days, or shall
not complete the curing of such default with due diligence; or (c) if a petition
in bankruptcy shall be filed by or against Tenant or if Tenant shall make a
general assignment for the benefit of creditors, or receive the benefit of any
insolvency or reorganization act; or (d) if a receiver or trustee is appointed
for any portion of Tenant’s property and such appointment is not vacated within
ninety (90) days; or (e) if an execution or attachment shall be issued under
which the premises shall be taken or occupied or attempted to be taken or
occupied by anyone other than Tenant. Notwithstanding anything herein to the
contrary set forth, Tenant shall not commit waste to any portion of the
building irrespective of whether within or without the demised premises.


          B.
The termination of this lease (which shall include, without limitation, any
rights of renewal or extension thereof) shall be effective upon the giving of
the notice first referred to in the preceding paragraph without the need for
any further act and thereupon this lease shall terminate as completely as if
that were the date originally fixed for the expiration of the term of this
lease; but Tenant shall remain liable as hereinafter provided, and Landlord may
institute summary or other proceedings to repossess the premises or re-enter
and take possession of the premises by the exercise of self-help or any other
means permitted by law.


          C.
Landlord hereby authorizes its then current managing agent of the building at
any time to act on Landlord’s behalf to make demands on and give notices to
Tenant hereunder, including without limitation (i) demands for payment of rent
or additional rent, performance of any obligation, or cure of any default, (ii)
notices of default or termination, and (iii) all other notices that may be
required by law or this lease in connection with or as a predicate to any
action or proceeding for rent and/or possession of the demised premises. Tenant
acknowledges and agrees that such managing agent is authorized to give such
notices and shall not (and hereby waives the right to) contest such
authorization or raise any defense to any action or proceeding predicated on
any allegation of lack of such authorization.


6. RE-LETTING; ETC.


          A.
Tenant hereby expressly waives any right of redemption granted by any present or future law.
“Re-enter” and “re-entry” as used in this lease are not restricted to their
technical


34





legal meanings. In the event of
a breach or threatened breach of any of the covenants or provisions hereof
Landlord or Tenant shall have the right to seek an injunction. Mention herein
of any particular remedy shall not preclude Landlord from any other available
remedy. Landlord shall recover as liquidated damages, in addition to accrued
rent and other charges, if Landlord’s re-entry is the result of Tenant’s
bankruptcy, insolvency, or reorganization, the full rental for the maximum
period allowed by any act relating to bankruptcy, insolvency or reorganization.


          B.
In case of any re-entry, dispossess by summary proceedings or termination of
the term hereof due to Tenant’s default, (x) the rent shall become due
thereupon and be paid up to the time of such re-entry, dispossess and/or
termination; (y) Landlord may re-let the demised premises or any part or parts
thereof, either in the name of Landlord or otherwise, for a term or terms,
which may at Landlord’s option be less than or exceed the period which would
otherwise have constituted the balance of the term of this lease and may grant
concessions or occupancy free of rent for any period; and (z) Tenant shall also
pay Landlord as liquidated damages for the failure of Tenant to perform any
obligation, at Landlord’s election, either of the amounts provided for in item
(1) or item (2) below and, in addition thereto, the amounts provided for in
item (3) below. Landlord shall have no obligation to re-let the premises, and
its failure or refusal to do so, or failure to collect rent on re-letting,
shall not affect Tenant’s liability hereunder. In no event shall Tenant be
entitled to a credit or repayment for rerental income which exceed the sums
payable to Tenant hereunder or which covers a period after the original term of
this lease. Said items (1), (2) and (3) are as follows:


                    (1)
A sum which, at the time of such re-entry, dispossess or termination, as the
case may be, represents the then value (using a discount rate equal to the
yield on United States Treasury obligations selected by Landlord maturing
closest to the date set forth herein as the then established expiration date of
the term of this lease) of the amount by which (x) the aggregate of the fixed
annual rent and any regularly payable additional rent hereunder that would have
been payable by Tenant for the period commencing with such re-entry, dispossess
or termination, as the case may be, and ending on the date then established
herein for the expiration of the term of this lease exceeds (y) the aggregate
rental value of the demised premises for the same period (which sum is
sometimes hereinafter called “the lump sum payment”); or


                    (2)
Sums equal to any deficiency between the rent hereby reserved and/or covenanted
to be paid and the net amount, if any, of the rents collected (i.e.,
the amount of rents collected hereunder less all of the costs referred to in
item (3) below incurred by Landlord) on account of the lease or leases of the
demised premises for each month of the period which would otherwise have
constituted the balance of the term of this lease. Such deficiency shall become
due and payable monthly, as it is determined; and


                    (3)
A sum to be added to such lump sum payment or deficiency, as the case may be,
equal to the expenses that Landlord incurs in connection with re-letting the
demised premises and pursuing Landlord’s rights and remedies (whether or not
any legal action is commenced) including, but not limited to, legal expenses,
reasonable attorneys’ fees, court costs, brokerage commissions, advertising
costs, the value of any rent-free period, the costs of all alterations and
decorations deemed advisable by Landlord to market the demised premises
following such re-entry or dispossess or in connection with leasing the demised
premises to a


35





new tenant, and costs to keep
the demised premises in good order and/or for preparing the same for
re-letting.


          C.
If Landlord re-enters the premises for any cause, or if Tenant abandons the
premises, any property left in the premises by Tenant shall be deemed to have
been abandoned by Tenant, and Landlord shall have the right to retain or
dispose of such property in any manner without any obligation to account
therefor to Tenant. In the event either party hereto shall file suit with
respect to, in connection with or otherwise to enforce this lease or any
provision contained herein, the party prevailing in such suit shall be entitled
to recover, in addition to all other remedies or damages, as provided herein,
reasonable attorney’s fees and expenses incurred in such suit.


7. LANDLORD MAY CURE DEFAULTS


          If
Tenant shall default in performing any covenant or condition of this lease,
Landlord may perform the same for the account of Tenant, and if Landlord, in
connection therewith, or in connection with any default by Tenant, makes any
expenditures or incurs any obligations for the payment of money, including but
not limited to reasonable attorneys’ fees and disbursements, such sums so paid
or obligations incurred shall be deemed to be additional rent hereunder, and
shall be paid by Tenant to Landlord, together with interest at a rate (the
“Applicable Rate”) equal to the average of all prime rates published from time
to time in The
Wall Street Journal (Eastern Edition) plus three percent (3%),
calculated from the date of each expenditure by Landlord, within thirty (30)
days of rendition of any bill or statement therefor, and if Tenant’s lease term
shall have expired at the time of the making of such expenditures or incurring
such obligations, such sums shall be recoverable by Landlord as damages.


8. ALTERATIONS


          A.
Tenant shall make no alteration, addition or improvement (each an “alteration”)
in the premises, without the prior written consent of Landlord, and then only
in such manner and with such materials as shall be reasonably approved by
Landlord.


          B.
Anything in this Article to the contrary notwithstanding, Landlord shall not
unreasonably withhold, condition or delay approval of written requests of
Tenant to make nonstructural interior alterations in the demised premises,
provided that such alterations do not adversely affect the proper functioning
of utility services, plumbing and electrical lines or other systems of the
building. Notwithstanding the foregoing, Landlord’s prior written approval
shall not be required with respect to (a) any decorative work, such as
painting, wall covering, carpeting and picture hanging, or (b) any other
alteration not requiring the approval of, and/or submission of plans to, any
governmental agency (including, without limitation, the Department of Buildings
of the City of New York), provided that such alteration does not adversely
affect (other than to a de minimis extent) the proper functioning of utility
services or plumbing and electrical lines or other systems of the building
outside of the demised premises; and provided, further, that all such work
shall be performed in accordance with the other applicable provisions of this
Article (except the requirement of Landlord’s approval of work or the plans and
specifications for such work; Tenant, nevertheless, shall be required to
provide Landlord with a


36





reasonably detailed written
description, at least ten (10) days prior to the start thereof). All
alterations shall be performed in accordance with the foregoing and the
following conditions:


          (i)
All alterations requiring the submission of plans to any governmental agency
(including, without limitation, the Department of Buildings of the City of New
York) shall be performed substantially in accordance with plans and
specifications first submitted to Landlord for its prior written approval, which
approval shall not be unreasonably withheld, conditioned or delayed with
respect to nonstructural interior alterations in the demised premises that do
not adversely affect (other than to a de minimis extent) the proper functioning
of utility services or plumbing and electrical lines or other systems of the
building. If Landlord fails to respond to any such request for approval within
ten (10) Business Days after Landlord’s initial receipt of such plans and
specifications (or within five (5) Business Days after Landlord’s receipt of
any resubmission of such plans and specifications by Tenant), Tenant may send
Landlord a second request for approval of such plans and specifications. If
Landlord fails to respond to such second request for approval within five (5)
days after its receipt of same, then Landlord shall be deemed to have approved
such plans and specifications (provided such second request specifies in bold
faced type and capital letters that Landlord shall be deemed to have approved
such plans and specifications if it fails to respond to such second request
within such five (5) day period).


          (ii)
All alterations shall be performed in a good and workerlike manner. Tenant
shall, prior to the commencement of any such alterations, at its sole cost and
expense, obtain and exhibit to Landlord any governmental permit required in
connection with such alterations, and shall deliver such permits, sign-offs,
approvals and certificates of completion or certificates of occupancy required
in connection with such completed alterations. However, if any building
violation (other than a violation which results from any act or omission of
Tenant or anyone claiming by, through or under Tenant, or its or their
respective employees, agents or contractors) delays or prevents Tenant from
obtaining any such permit, sign-off, approval or certificate required in
connection with such alterations, then Landlord shall cure and remove said
violation (or shall cause such violation to be cured and removed) within thirty
(30) days of the receipt of Tenant’s notice to Landlord of such violation and
delay, or if such violation is of such a nature that it cannot be removed and
cured within thirty (30) days, Landlord shall commence within such thirty (30)
day period, and thereafter diligently pursue, the cure and removal of such
violation. If Tenant is unable to or is delayed in obtaining a building permit
for Tenant’s Initial Installation Work or is unable or is delayed in legally
occupying any portion of the demised premises (for initial occupancy thereof)
as a result of the existence of such violation(s), then the fixed annual rent
and escalation additional rent payable pursuant to Article 2 of this lease with
respect to such portion of the demised premises that may not be legally occupied
shall be abated for one day for each day that Tenant is actually delayed in
obtaining any such permit, sign-off, approval or certificate which is necessary
for Tenant to legally occupy such portion of the demised premises.


          (iii)
All alterations shall be performed in compliance with all other applicable
provisions of this lease, all building regulations (including specifications
for construction material and finishes criteria adopted by Landlord for the
building) and with all applicable laws, ordinances, directions, rules and
regulations of governmental authorities having jurisdiction, including, without
limitation, the Americans with Disabilities Act of 1990, as amended, New York
City Local Law No. 5/73 and New York City Local Law No. 58/87 and similar
present or


37





future laws, and regulations
issued pursuant thereto. Notwithstanding anything to the contrary herein
contained, Tenant agrees not to perform any work that adversely affects the
structural elements of the building or the proper functioning of any building
mechanical system other than connecting to same pursuant to approved plans.


          (iv)
All work shall be performed with union labor having the proper jurisdictional
qualifications by contractors and subcontractors approved by Landlord, which
approval shall not be unreasonably withheld or delayed with respect to
contractors or subcontractors performing nonstructural interior alterations in
the demised premises that do not affect utility services or plumbing and
electrical lines or other systems of the building. In this regard, Exhibit D
attached hereto and made a part hereof constitutes a current list of the
contractors that are approved by Landlord for purposes of performing
alterations in the building, and Landlord shall, from time to time, upon
Tenant’s written request, provide an updated list of such contractors; and
Exhibit D-1 attached hereto and made a part hereof constitutes a current list
of the contractors that are approved by Landlord for purposes of performing Tenant’s
Initial Installation Work.


          (v)
All work to be performed by Tenant shall be done in a manner that will not
unreasonably interfere with or disturb other tenants and occupants of the
building. No demolition or core drilling or welding shall be permitted between
the hours of 8:00 a.m. and 6:00 p.m. on Mondays through Fridays.


          (vi)
During the course of any alterations or other work requiring a permit from any
governmental authority, Tenant shall cause its contractors to provide the following
insurance, also issued by an insurance company authorized to do business in the
State of New York, maintaining a rating of A-VIII or better in Best’s Insurance
Reports-Property-Casualty (or an equivalent rating in any successor index
adopted by Best’s or its successor): worker’s compensation and disability
insurance covering all persons employed for such work; commercial general
liability and property damage insurance naming the holder of any mortgage on
the building, Landlord, its managing agent and its designees as additional
insureds, with coverage of at least $3,000,000 combined single limit; builder’s
risk insurance in an amount reasonably satisfactory to Landlord; and business
automobile liability insurance for all owned, non-owned and hired vehicles with
a $1,000,000 combined single limit.


          (vii)
Tenant shall deliver to Landlord prior to commencing any alteration,
certificates of the insurance required under clause (vi) above naming with
respect to such insurance, except workers compensation and disability
insurance, Landlord, its managing agent, its mortgagees and other designees
with an insurable interest, as additional insureds, together with the
declaration page of each such insurance policy and the endorsements thereto
designating such persons or parties as additional insureds.


          (viii)
Notwithstanding anything herein set forth to the contrary, within thirty (30)
days after final completion of any alteration, Tenant shall deliver to the
Landlord final record drawings of the alteration including, as may be pertinent
to the work performed, a reflected ceiling plan, mechanical and electrical
drawings, partition plan and any other drawings which may be required to
indicate accurately the layout and systems of the demised premises. Tenant
shall require its architect to load and maintain such record plans on a CADD
system.


38





          (ix)
Tenant shall have the right to have its architects and engineers “self-certify”
the work being performed by Tenant.


          C.
(i) All alterations, additions or improvements to the premises, including
window and central air conditioning equipment and duct work, if any, and
fixtures, equipment and built-ins, except movable office furniture and
equipment installed at the expense of Tenant (“Tenant’s Property”), shall,
unless Landlord elects otherwise in writing, become the property of Landlord,
and shall be surrendered with the premises at the expiration or sooner
termination of the term of this lease. Notwithstanding the foregoing, (a) all
alterations, additions or improvements to the premises made at Tenant’s expense
during the term of this lease shall be deemed to be owned by Tenant for
purposes of income taxes and Tenant shall have the right to depreciate the cost
of same, (b) all alterations, installations or improvements to the premises
made at Landlord’s expense during the term of this lease shall be deemed to be
owned by Landlord for purposes of income taxes and Landlord shall have the
right to depreciate the cost of same, and (c) in no event shall any of Tenant’s
Property constitute an alteration, addition or improvement for purposes hereof.


                    (ii)
Notwithstanding anything contained herein to the contrary, any alterations,
additions or improvements which are not standard for normal office
installations (“Specialty Alterations”), e.g., reinforced flooring for high
density filing, vaults and internal stairways, shall be removed by Tenant and
any damage repaired, at Tenant’s expense, prior to the expiration of the term
hereof; provided, however, that Landlord shall be required to designate each
such Specialty Alteration that Tenant must remove prior to the expiration of
the term hereof, at the time Landlord approves any such Specialty Alteration;
and provided, further, that Tenant’s request for consent to such alteration
specifies (in bold faced type and capital letters) that Landlord must so
designate. Other than with respect to such Specialty Alterations so designated
by Landlord, Tenant shall have no obligation to restore the demised premises,
and Tenant shall not be required to remove any executive lavatories installed
by Tenant. Notwithstanding anything contained herein to the contrary, in no
event will any Supplemental A/C Unit (as hereinafter defined in Article 31C) be
deemed a Specialty Alteration hereunder.


9. LIENS


          Prior
to commencement of its work in the demised premises, Tenant shall obtain and
deliver to Landlord a written letter of authorization, in form reasonably
satisfactory to Landlord, signed by Tenant’s architects, engineers, designers
and consultants to become involved in such work, which shall confirm that in
the event such work is discontinued or abandoned any of their drawings or plans
are to be removed from any filing with governmental authorities, on request of
Landlord, in the event that said architect, engineer or designer thereafter no
longer is providing services with respect to the demised premises. With respect
to contractors, subcontractors, materialmen and laborers, and architects, engineers
and designers, for all work or materials furnished to Tenant at the premises
where the value of same exceeds $10,000.00, Tenant agrees to obtain and deliver
to Landlord written and unconditional waivers of mechanics liens upon the
premises or the building, after payments to the contractors, their
subcontractors and vendors, Tenant’s architects, engineers, designers and
consultants, subject to any then applicable provisions of the Lien law.
Notwithstanding the foregoing, Tenant at its expense shall cause any lien filed
against the premises or the building, for work or materials claimed to have
been


39






furnished to Tenant, to be
discharged of record within thirty (30) days after notice thereof, by payment,
filing of the bond required by law or otherwise.


10. REPAIRS


          A.
Tenant shall keep the demised premises clean and in good order and repair.
Tenant shall take good care of the premises and the fixtures and appurtenances
therein, and shall make all repairs necessary to keep them in good working
order and condition, including structural repairs and replacements of glass
windows when those are necessitated by the act, omission or negligence of
Tenant or its agents, employees or invitees (subject, however, to Article 42E
hereof). The exterior walls of the building, the windows and the portions of
all window sills outside same and areas above the ceiling slab are not part of
the premises demised by this lease, and Landlord hereby reserves all rights to
such parts of the building. Tenant shall not create any nuisance within the
building.


          B.
Landlord shall operate, maintain and make all necessary repairs (both
structural and nonstructural) to the building systems servicing the demised
premises and to the public portions of the building, both exterior and
interior, in conformance with standards applicable to first-class office
buildings in mid-town Manhattan (except such repairs which are necessitated by
the acts, omissions or negligence of Tenant, its agents, employees or
contractors (subject, however, to Article 42E hereof), which shall be made by
Landlord at Tenant’s expense).


          C.
Notwithstanding anything contained in this lease to the contrary, if Landlord
fails to comply with its maintenance or repair obligations under this lease for
a period of fifteen (15) days after notice of the condition, and such failure
materially and adversely affects Tenant’s use and occupancy of the demised
premises for the conduct of its normal business operations, then Tenant, after
an additional five (5) days’ prior written notice to Landlord, may perform such
maintenance or repair, as the case may be, for the account of Landlord, except
if such performance (i) affects any building systems which do not exclusively
service the demised premises or affects any area outside of the demised
premises which is occupied by another tenant or occupant pursuant to an
agreement with Landlord, or (ii) affects any structural portion of the
Building. Any such maintenance or repair work by Tenant shall be performed in accordance
with all applicable laws, rules and regulations and all applicable provisions
of this lease, including, without limitation, Article 8. Tenant agrees that
such second 5-day day notice shall contain a statement (in bold face type and
capital letters) of Tenant’s intention to exercise its “self-help” rights under
this Article in the event Landlord does not timely comply with its maintenance
or repair obligations hereunder, as the case may be. Tenant will provide
Landlord with proof of Tenant’s maintenance or repair costs and Landlord will
reimburse same within thirty (30) days after receipt of same, with interest at
the Applicable Rate from the date of Tenant’s expenditures to the date
recovered in full by Tenant.


11. DESTRUCTION


          A.
If the premises shall be partially damaged or rendered wholly untenantable by
fire or other casualty and Landlord shall not elect to terminate this lease as
provided below in this Article 11, the damage shall be repaired at the expense
of Landlord. Landlord shall not be required to repair or restore any of
Tenant’s Property or any alteration or leasehold improvement


40






made by or for Tenant at
Tenant’s expense, unless same is covered by Landlord’s casualty insurance for
the building. Tenant shall give Landlord prompt notice of any damage or
destruction to the premises. The rent shall abate in proportion to the portion
of the premises not usable by Tenant until the first to occur of (i) the date
which is ninety (90) days after the date Landlord substantially completes
Landlord’s restoration and repair work hereunder, or (ii) the date Tenant
resumes occupancy of all or part of the demised premises for its business
purposes. Landlord shall not be liable to Tenant for any delay in restoring the
premises, Tenant’s sole remedy being the right to an abatement of rent, as
above provided. If the building shall be so damaged that Landlord shall decide
to demolish it or (if substantially demolished as a result of such fire or
other casualty) to rebuild it (whether or not the premises have been damaged),
Landlord may within ninety (90) days after such fire or other cause give
written notice to Tenant of its election that the term of this lease shall
automatically expire no less than ten (10) days after such notice is given; provided,
however, that in no event may Landlord so terminate this lease unless Landlord
also terminates the leases covering all or substantially all other office space
in the building. Tenant hereby expressly waives the provisions of Section 227
of the Real Property Law and agrees that the provisions of this Article shall
govern and control in lieu thereof.


          B.
Subject to Landlord’s right to cancel this lease pursuant to paragraph A above,
within ninety (90) days after the date of any such fire or other casualty which
renders the demised premises untenantable for the purposes of Tenant’s
permitted use hereunder or which denies Tenant reasonable access to the
premises, Landlord shall deliver to Tenant a statement from a reputable
independent contractor (the “Contractor’s Statement”) setting forth such
contractor’s good faith estimate as to the time required to repair such damage.
If the estimate of the time period exceeds twelve (12) months from the date of
such casualty, Landlord or Tenant may elect to terminate this lease by giving
the other party written notice thereof not later than thirty (30) days after
the receipt of such statement. If such notice is given, the term of this lease
shall expire upon the fifteenth (15th) day after notice of such election
is given, and Tenant shall vacate and surrender the demised premises in its
present “as is” condition upon the expiration of such fifteen (15) day period.
Notwithstanding anything to the contrary contained herein, if (i) either Tenant
shall not have elected to terminate this lease pursuant to the provisions
hereof or Tenant shall not have had the right to terminate this lease pursuant
to the provisions hereof because the estimated time period set forth in the
Contractor’s Statement did not exceed twelve (12) months, and (ii) Landlord
shall have failed to make such repairs on or before the date which is one (1)
month after the estimated time period set forth in the Contractor’s Statement,
then Tenant may elect to terminate this lease by notice given to Landlord
within fifteen (15) Business Days after the expiration of such one (1) month
period. If Tenant makes such election, the term of this lease shall expire on
the fifteenth (15th) day after notice of such election is given by
Tenant, and Tenant shall vacate the demised premises and surrender the same to
Landlord in accordance with the provisions of this paragraph B.


          C.
Notwithstanding anything to the contrary contained herein, in case the building
or the demised premises shall be substantially damaged or destroyed by fire or
other cause at any time during the last twenty-four (24) months of the term of
this lease, then either Landlord or Tenant may cancel this lease upon written
notice to the other party hereto given within sixty (60) days after the date of
such damage or destruction; except, however, that if the damage is of such a
nature that (in the reasonable opinion of a reputable independent contractor
selected by either party) upon the substantial completion of such repair and/or
restoration work, using reasonable


41






diligence, there will be more
than twelve (12) months remaining in the term of this lease (in which case the
exercise of such cancellation right shall be null and void and of no force and
effect, and Landlord shall be obligated to proceed with such restoration and
repair work, as above provided, subject, however to Landlord’s right to cancel
this lease pursuant to the provisions of paragraph A of this Article).


          D.
Notwithstanding anything contained in this lease to the contrary, in the event
this lease is cancelled by either Landlord or Tenant pursuant to the provisions
of this Article, then each party shall retain the proceeds of any casualty
insurance then being maintained by such party.


12. END OF TERM


          Tenant
shall surrender the premises to Landlord at the expiration or sooner
termination of this lease in good order and condition, except for reasonable
wear and tear and damage by fire or other casualty, and Tenant shall remove all
of its personal property, as well as any other alteration or installation which
Tenant is specifically required to remove pursuant to the provisions of Article
8C(ii) of this lease. Tenant agrees that any personal property remaining in the
demised premises following the expiration of the term of this lease (or such
earlier date as of which the term hereof may have been terminated) shall for
all purposes be deemed conveyed to and to be the property of Landlord who shall
be free to dispose of such property, at Tenant’s cost, in any manner Landlord
deems desirable. Landlord may retain or assign any salvage or other residual
value of such property; provided, however, that same shall be offset against
any sums due from Tenant to Landlord for disposing of such property, as set forth
in the immediately succeeding sentence. In consideration of Landlord’s
disposing of such property, Tenant shall reimburse Landlord or pay to Landlord
any cost that Landlord may incur in disposing of such property within ten (10)
days after demand therefor. Tenant shall indemnify and save Landlord harmless
against all costs, claims, loss or liability resulting from delay by Tenant of
more than ninety (90) days in so surrendering the premises, including, without
limitation, any claims made by any succeeding tenant founded on such delay.
Additionally, the parties recognize and agree that other damage to Landlord
resulting from any failure by Tenant timely to surrender the premises will be
substantial, will exceed the amount of monthly rent theretofore payable
hereunder, and will be impossible of accurate measurement. Tenant therefore
agrees that if possession of the premises is not surrendered to Landlord within
one (1) day after the expiration or sooner termination of the term of this
lease, then Tenant will pay Landlord as liquidated damages for each month and
for each portion of any month during which Tenant holds over in the premises
after expiration or termination of the term of this lease, the following
liquidated damages: for the first month or portion of such first month during
which Tenant holds over in the demised premises after expiration or termination
of the term of this lease, a sum equal to one and one-half (1.5) times the
average fixed annual rent and additional rent which were payable per month under
this lease during the last six (6) months of the term thereof; and for any
month or portion of a month after said first month, during which Tenant holds
over in the demised premises after expiration or termination of the term of
this lease, a sum equal to two (2) times the average fixed annual rent and
additional rent which were payable per month under this lease during the last
six (6) months of the term thereof. The aforesaid obligations shall survive the
expiration or sooner termination of the term of this lease. Anything in this
lease to the contrary notwithstanding, the acceptance of any rent shall not
preclude Landlord from commencing and


42






prosecuting a holdover or
summary eviction proceeding, and the preceding sentence shall be deemed to be an
agreement expressly “providing otherwise” within the meaning of Section 232-c
of the Real Property Law of the State of New York and any successor law of like
import. Tenant expressly waives, for itself and for any person claiming through
or under the Tenant, any rights which the 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 the Landlord may institute. Tenant’s
obligations under this paragraph shall survive the expiration or sooner
termination of the term of this lease. At any time during the term of this
lease, Landlord may exhibit the premises to prospective purchasers or mortgagees
of Landlord’s interest therein, or prospective investors, during normal
business hours, upon not less than twenty-four (24) hours’ prior notice to
Tenant (which notice may be given to Tenant orally); provided, however, that
(i) Landlord shall use commercially reasonable efforts to minimize any
interruption of Tenant’s business in the demised premises and (ii) Tenant shall
have the right to have an employee of Tenant accompany Landlord and any of its
prospective purchasers, mortgagees or investors at all times during such
exhibition of the demised premises. During the last year of the term of this
lease, Landlord may exhibit the premises to prospective tenants, during normal
business hours, upon not less than twenty-four (24) hours’ prior notice to Tenant
(which notice may be given to Tenant orally); provided, however, that (i)
Landlord shall use commercially reasonable efforts to minimize any interruption
of Tenant’s business in the demised premises and (ii) Tenant shall have the
right to have an employee of Tenant accompany Landlord and any of its
prospective tenants at all times during such exhibition of the demised
premises.


13. SUBORDINATION AND ESTOPPEL; ETC.


          A.
Tenant has been informed and understands that Landlord’s title arises out of
and by virtue of a sublease (the “Sublease”) from the owner of the lease (the
“Ground Lease”) of the land and the building of which the premises form a part.
A copy of the Ground Lease and the Sublease may be examined at the office of
Landlord at any time during regular business hours upon reasonable advance
notice. Provided and on condition that Landlord shall first obtain and deliver
to Tenant the non-disturbance agreements set forth in paragraph B of this
Article 13, this lease and Tenant’s rights hereunder are and shall be subject
and subordinate to the Ground Lease, the Sublease and all other ground or
underlying leases and subleases and to all mortgages, building loan agreements,
leasehold mortgages, spreader and consolidation agreements and other similar
documents and instruments (individually, a “Superior Interest” and
collectively, “Superior Interests”), which may now or hereafter affect such
leases or subleases or the real property of which the premises form a part and
to all renewals, modifications, consolidations, replacements, extensions,
assignments, spreaders, consolidations and refinancings thereof and to all
advances made or hereafter made thereunder. This Article shall be
self-operative and no further instrument of subordination shall be necessary.
Tenant shall within ten (10) days after written request execute any instrument
in recordable form that Landlord or the holder of any Superior Interest may
reasonably request to confirm such subordination.


          B.
(i) Landlord shall obtain from the sublessor under the Sublease (i.e., Empire
State Building Associates L.L.C.), for the benefit of Tenant, a subordination,
non-disturbance and attornment agreement, substantially in the form attached
hereto and made a part hereof as Exhibit C-1. Landlord shall deliver such
subordination, non-disturbance and attornment


43






agreement to Tenant, executed
by Empire State Building Associates L.L.C. and acknowledged, simultaneously
with the execution and delivery of this lease by Landlord. Tenant shall promptly
execute and deliver any such subordination, non-disturbance and attornment
agreement.


                    (ii)
Landlord shall obtain from the lessor under the Ground Lease (i.e., Empire
State Land Associates L.L.C.), for the benefit of Tenant, a non-disturbance and
attornment agreement, substantially in the form attached hereto and made a part
hereof as Exhibit C-2. Landlord shall deliver such non-disturbance and
attornment agreement to Tenant, executed by Empire State Land Associates L.L.C.
and acknowledged, simultaneously with the execution and delivery of this lease
by Landlord. Tenant shall promptly execute and deliver any such non-disturbance
and attornment agreement.


                    (iii)
As of the date hereof, the real property of which the building forms a part is
encumbered by a certain first mortgage made by Empire State Land Associates
L.L.C. in favor of Capital One, N.A. (“CO”), as successor-in-interest to the
original mortgagee, North Fork Bank. Notwithstanding anything contained in this
lease to the contrary, Landlord shall obtain from CO, for the benefit of
Tenant, a subordination, non-disturbance and attornment agreement,
substantially in the form attached hereto and made a part hereof as Exhibit
C-3. Landlord shall deliver such non-disturbance and attornment agreement to
Tenant, executed by CO and acknowledged, simultaneously with the execution and
delivery of this lease by Landlord. Tenant shall promptly execute and deliver
any such subordination, non-disturbance and attornment agreement.


                    (iv)
Notwithstanding anything contained hereinabove to the contrary, Landlord shall
obtain from the holder of any future Superior Interest, for the benefit of
Tenant, a subordination, non-disturbance and attornment agreement, in the form
then customarily used by it, provided such form is commercially reasonable, but
in any event providing in substance that so long as Tenant is not then in
default under this lease beyond any applicable notice and/or grace period, the
grantor of such subordination non-disturbance and attornment agreement will not
take any action to recover possession of the demised premises, notwithstanding
any foreclosure of the mortgage or termination of the ground or other
underlying lease, as the case may be. Tenant shall promptly execute and deliver
such non-disturbance agreement and shall pay any reasonable attorneys’ fees
incurred by the grantor of such non-disturbance agreement in connection with
the negotiation of such non-disturbance agreement, but not for the mere
preparation or issuance of the non-disturbance agreement.


          C.
Any holder of a Superior Interest may elect that this lease shall have priority
over such Superior Interest and, upon notification by such holder of a Superior
Interest to Tenant, this lease shall be deemed to have priority over such
Superior Interest, whether this lease is dated prior to or subsequent to the
date of such Superior Interest.


          D.
From time to time, Tenant, on fifteen (15) days’ prior written request by Landlord,
time being of the essence, will deliver to Landlord and the holder of any
Superior Interest a statement in writing (upon which any person to whom it is
addressed or certified may rely) certifying that this lease is unmodified and
is in full force and effect (or if there have been modifications, that the same
is in full force and effect as modified and identifying the modifications) and
the dates to which the rent and other charges have been paid, the amounts of


44






fixed annual and additional
rents, stating the date of expiration of the term hereof and whether any
renewal option exists (and if so, the terms thereof), stating whether, to
Tenant’s best knowledge, any defense or counterclaim to the payment of any rent
exists, whether any allowance or work is due to Tenant from Landlord, stating
whether or not, to Tenant’s best knowledge, Landlord is in default in
performance of any covenant, agreement or condition contained in this lease
and, if so, specifying each such default of which Tenant may have knowledge,
stating whether any bankruptcy case has been commenced with respect to Tenant,
and containing such other information as the holder of any Superior Interest
may reasonably request.


          E.
If, in connection with obtaining, continuing or renewing financing or
refinancing for the building and/or the land, the lender shall request that
Tenant give notices of any defaults by Landlord to such lender as a condition
to such financing or refinancing, Tenant will not unreasonably withhold, delay
or defer its consent thereto.


          F.
If any act or omission by Landlord shall give Tenant the right, immediately or
after the lapse of time, to cancel or terminate this lease or to claim a
partial or total eviction, Tenant shall not exercise any such right until: (a)
it shall have given written notice of such act or omission to each holder of
any Superior Interest of which it has written notice, and (b) a reasonable
period for remedying such act or omission shall have elapsed following such
notice (which reasonable period shall be equal to the period to which Landlord
would be entitled under this lease to effect such remedy, plus an additional
thirty (30) day period), provided such holder or lessor shall, with reasonable
diligence, give Tenant notice of its intention to remedy such act or omission
and shall commence and continue to act upon such intention.


14. CONDEMNATION


          A.
In the event that the whole of the demised premises shall be lawfully condemned
or taken in any manner for any public or quasi-public use or purpose, this lease
and the term and estate hereby granted shall forthwith cease and terminate as
of the date of vesting of title (hereinafter referred to as the “date of
taking”), and Tenant shall have no claim against Landlord for, or make any
claim for, the value of any unexpired term of this lease, and the rent and
additional rent shall be apportioned as of such date.


          B.
In the event that any part of the demised premises shall be so condemned or
taken, then this lease shall be and remain unaffected by such condemnation or
taking, except that the rent and additional rent allocable to the part so taken
shall be apportioned as of the date of taking, provided, however, that Tenant
may elect to terminate this lease in the event more than twenty-five (25%)
percent of the demised premises should be so condemned or taken, provided such
notice of election is given by Tenant to Landlord not later than thirty (30)
days after the last to occur of (i) the date when title shall vest in the
condemning authority, and (ii) the date Landlord notifies Tenant of such
condemnation or taking. Landlord shall promptly give Tenant copies of any
notice received from the condemning authority in connection with any proposed
condemnation and as to vesting. Upon the giving of a notice of termination,
this lease shall terminate on the thirtieth day following the date of such
notice and the rent and additional rent shall be apportioned as of such
termination date. Upon such partial taking and this lease continuing in force
as to any part of the demised premises, the rent and additional rent shall be


45






diminished by an amount
representing the part of said rent and additional rent properly applicable to
the portion or portions of the demised premises which may be so condemned or
taken. If as a result of the partial taking (and this lease continuing in force
as to the part of the demised premises not so taken), any part of the demised
premises not taken is damaged, Landlord agrees with reasonable promptness to
commence the work necessary to restore the damaged portion to the condition
existing immediately prior to the taking, and prosecute the same with
reasonable diligence to its completion. In the event Landlord and Tenant are
unable to agree as to the amount by which the rent and additional rent shall be
diminished, the matter shall be determined by arbitration in New York City.


          C.
Nothing herein provided shall preclude Tenant from appearing, claiming, proving
and receiving in the condemnation proceeding, Tenant’s moving expenses, and the
value of Tenant’s fixtures, or Tenant’s alterations, installations and
improvements (to the extent, only, paid for by Tenant and not reimbursed by
Landlord or by insurance), which do not become part of the building, or
property of Landlord; or, in the case of temporary taking, so long as rent
hereunder is paid to Landlord, Tenant may make a claim for rental value and
damages to the demised premises (which are of a nature that Tenant is obligated
hereunder to repair same) or damages to Tenant’s furniture and fixtures.


          D.
In the event that only a part of the demised premises shall be so taken and
Tenant shall not have elected to cancel this lease as above provided, the
entire award for a partial taking shall be paid to Landlord, and Landlord, at
Landlord’s own expense, shall restore the unaffected part of the building to
substantially the same condition and tenantability as existed prior to the
taking.


          E.
Until said unaffected portion is restored, Tenant shall be entitled to a
proportionate abatement of rent for that portion of the premises which is being
restored and is not usable until the completion of the restoration or until the
said portion of the premises is used by Tenant, whichever occurs sooner. Said
unaffected portion shall be restored within a reasonable time but not more than
seventy-five (75) days after the taking; provided, however, if Landlord is
delayed by strike, lockout, the elements, or other causes beyond Landlord’s
control, the time for completion shall be extended for a period equivalent to
the delay. Should Landlord fail to complete the restoration within the said
seventy-five (75) days or the time as extended, Tenant may elect to cancel this
lease and the term hereby granted provided such notice of election is given by
Tenant to Landlord not later than thirty (30) days after the end of said
seventy-five (75) days of time or the time as extended.


15. REQUIREMENTS OF LAW


          A.
(i) Tenant at its expense shall comply with all laws, orders and regulations of
any governmental authority having or asserting jurisdiction over the demised
premises (whether any such law, order or regulation is in effect on, or enacted
or made effective after, the date hereof, whether contemplated or foreseen on
the date hereof or not), which shall impose any violation, order or duty upon
Landlord or Tenant with respect to the demised premises or the use or occupancy
thereof.


46






                    (ii)
The foregoing shall not require Tenant to do any alteration or structural work,
except that Tenant shall: (a) perform, at its sole cost and expense, work that
may become necessary by reason of any Tenant installation, alteration,
improvement or work; (b) perform, at its sole cost and expense, work that my
become necessary by reason of Tenant’s particular manner of use of the demised
premises (as distinguished from general and executive office use thereof), and
(b) reimburse Landlord for the cost of performing structural repairs or
alterations required by the negligence or willful misconduct of Tenant, its
agents, employees or contractors (subject, however, to Article 42E of this
lease).


          B.
Tenant shall require every person engaged by Tenant to clean any window in the
premises from the outside, to use the equipment and safety devices required by
Section 202 of the Labor Law and the rules of any governmental authority having
or asserting jurisdiction.


          C.
Tenant at its expense shall comply with all requirements of the New York Board
of Fire Underwriters, or any other similar body affecting the premises and
shall not use the premises in a manner which shall increase the rate of fire
insurance of Landlord or of any other tenant, over that in effect prior to this
lease. Notwithstanding the foregoing, it is acknowledged and agreed that mere
office use will not so increase such fire insurance rates. If Tenant’s use of
the premises increases the fire insurance rate, Tenant shall reimburse Landlord
for all such increased costs. That the premises are being used for the purpose
set forth in Article 1 hereof shall not relieve Tenant from the foregoing
duties, obligations and expenses.


          D.
Landlord shall comply, at its sole cost and expense, with all laws, rules and
regulations which are applicable to the demised premises and which are not the
obligation of Tenant under this lease or under the law. Landlord shall also
comply, at its sole cost and expense, with all laws, rules and regulations
which are applicable to the building and which are not the obligation of Tenant
hereunder or under the law, but only to the extent that such compliance is
necessary for Tenant’s continued use of, or access to, the demised premises for
the purposes permitted under this lease.


16. CERTIFICATE OF OCCUPANCY


          Tenant
will at no time use or occupy the premises in violation of any certificate of
occupancy issued for or statute governing the use of the building. A true and
correct copy of the certificate of occupancy issued for the building as of the
date of this lease is attached hereto and made a part hereof as Exhibit F.
Landlord will make no changes in the building which would result in a change in
the certificate of occupancy which prevents Tenant from using the demised
premises for the purposes specified in this lease or which would reduce the
number of occupants on any floor comprising the demised premises.


17. POSSESSION


          If
permission is given to Tenant to occupy the demised premises or other premises
prior to the date specified as the commencement of the term, such occupancy
shall be deemed to be pursuant to the terms of this lease, except that the
parties shall separately agree as to the obligation of Tenant to pay rent for
such occupancy. The provisions of this Article are intended to constitute an
“express provision to the contrary” within the meaning of Section 223(a), New


47






York Real Property Law.
Landlord represents that, as of the date of this lease, the demised premises
are vacant and is not subject to any lease or other occupancy agreement.


18. QUIET ENJOYMENT


          Landlord
covenants that if and so long as this lease is in full force and effect, Tenant
may peaceably and quietly enjoy the demised premises, subject to the terms,
covenants and conditions of this lease and to the Ground Lease, the Sublease
and other Superior Interests.


19. RIGHT OF ENTRY


          A.
(i) Tenant shall permit Landlord to erect and maintain pipes and conduits in
and through the premises, provided same are located within the walls, below the
floor or above the ceiling of the demised premises; and provided, further, that
same do not reduce the cubic area of the demised premises (other than by a de
minimis amount). Landlord or its agents shall have the rights: to enter or pass
through the premises at all times, in the presence of a representative of
Tenant, upon at least 24-hours’ prior notice (which may be given to Tenant
orally), except in an emergency (in which case and only in such case (a) no
such notice shall be required, (b) Tenant’s representative need not be present,
(c) Landlord may enter the demised premises by master key, by reasonable force
or otherwise, and (d) Landlord shall give Tenant such notice of entry as may be
feasible under such emergency circumstances, which, if not given before such
entry by Landlord or its agents, shall be given as soon as reasonably
practicable thereafter), to examine the same, to make such repairs,
installations, improvements, alterations or additions to the building (but not
the demised premises, except to the extent provided in the first sentence of
this Article) or to make repairs to the demised premises, as may be required by
this lease or by law or as Landlord may deem necessary, and to take into the
premises (but in no event to store overnight therein) all material that may be
used in connection with any such repair, installation, improvement, alteration
or addition work. Landlord shall repair any damage to the demised premises
resulting from any entry or work pursuant to this paragraph A, and shall
restore the demised premises to the condition existing immediately prior to
such entry or work, reasonable wear and tear and damage by fire or other
casualty excepted. Subject to the provisions of Article 22D hereof, such entry
or work in connection with any such repair, installation, improvement,
alteration or addition shall not constitute an eviction (whether actual or
constructive) of Tenant in whole or in part or breach of the covenant of quiet
enjoyment, shall not be grounds for any abatement of rent, and shall not impose
any liability on Landlord to Tenant by reason of inconvenience or injury to
Tenant’s business or to the demised premises. Landlord shall nevertheless use
commercially reasonable efforts to effect such entry or work in a manner that
minimizes any interference with Tenant’s business operations in the demised
premises; it being understood and agreed, however, that such entry or work may
be effected on Business Days during Business Hours, unless (a) such entry or
work (1) results in a denial of any reasonable means access to the demised
premises or use of the demised premises for the conduct of Tenant’s business in
the normal course thereof or (2) imminently threatens the health or safety of
any authorized occupant of the demised premises; or (b) Tenant shall request
that Landlord perform the work on an overtime or premium basis and Tenant shall
agree to reimburse Landlord for the cost of same, in which event Tenant shall
pay to Landlord, within thirty (30) days after demand therefor, an amount equal
to the difference between overtime or premium pay rates and the regular pay
rates for performing such work.


48






                    (ii)
Notwithstanding anything contained hereinabove to the contrary, with respect to
any such entry or work which is solely for the benefit of another tenant, (a)
Landlord shall provide Tenant with reasonable written notice of same, which
notice shall contain a reasonably detailed description of such work; (b)
Landlord shall perform such work only outside of Business Hours, and shall pay
any overtime or premium pay rates associated therewith, including any
reasonable out-of-pocket costs incurred by Tenant if Tenant reasonably chooses
to retain guards or employees to secure the demised premises; and (c) shall repair
any damage to the demised premises caused thereby, and restore the demised
premises to the condition existing immediately prior to such work, reasonable
wear and tear and damage by fire or other casualty excepted.


          B.
Landlord shall have the right at any time, without the same constituting an
actual or constructive eviction, and without incurring any liability to Tenant,
to change the arrangement and/or location of public entrances or public
passageways, public windows, public corridors, elevators, stairs, public or
core toilets, or other public parts of the building, provided such change does
not adversely affect (other than to a de minimis extent) Tenant’s use of or
access to the demised premises. Landlord shall also have the right at any time,
without the same constituting an actual or constructive eviction, and without
incurring any liability to Tenant, to change the name or number by which the
building is known, provided that Landlord shall reimburse Tenant for the
reasonable out-of-pocket cost to Tenant of reprinting its stationery, business
brochures and business cards due to same (if necessary).


20. VAULT SPACE


          Anything
contained in any plan or blueprint to the contrary notwithstanding, no vault or
other space not within the building property line is demised hereunder. Any use
of such space by Tenant shall be deemed to be pursuant to a license, revocable
at will by Landlord, without diminution of the rent payable hereunder. If
Tenant shall use such vault space, any fees, taxes or charges made by any
governmental authority for such space shall he paid by Tenant.


21. INDEMNITY


          A.
Tenant shall indemnify, defend and save Landlord and any of the other Landlord
Parties (as hereinafter defined) harmless from and against any liability or
expense arising from (i) the negligence or willful misconduct of Tenant, its
agents, employees or contractors and (ii) any certification made by any
architect or engineer retained by or on behalf of Tenant to any governmental
authority (as well as any certification also executed or submitted by Landlord)
in connection with any alteration or improvement to the demised premises.
Nothing contained in this paragraph A shall be construed to absolve Landlord or
any person claiming through or under Landlord to the extent of their respective
negligence or willful misconduct. The term “Landlord Parties” when used herein
shall mean Landlord, its agents, officers, directors, shareholders, partners,
members, managers, principals, employees and tenants in common (whether
disclosed or undisclosed). If any claim, action or proceeding is brought
against any of the Landlord Parties for a matter covered by this indemnity,
Tenant, upon notice from the indemnified person or entity, shall defend such
claim, action or proceeding with counsel reasonably satisfactory to Landlord
and the indemnified person or entity (it being agreed that counsel for Tenant’s
insurance company shall be acceptable for such purposes).


49






          B.
Landlord shall indemnify, defend and save Tenant and any of the other Tenant
Parties (as hereinafter defined) harmless from and against any liability or
expense arising from the negligence or willful misconduct of Landlord, its
agents, employees or contractors. Nothing contained in this paragraph B shall
be construed to absolve Tenant or any person claiming through or under Tenant
to the extent of their respective negligence or willful misconduct. The term
“Tenant Parties” when used herein shall mean Tenant, its agents, officers,
directors, shareholders, partners, members, managers, principals, employees and
tenants in common (whether disclosed or undisclosed). If any claim, action or
proceeding is brought against any of the Tenant Parties for a matter covered by
this indemnity, Landlord, upon notice from the indemnified person or entity,
shall defend such claim, action or proceeding with counsel reasonably
satisfactory to Tenant and the indemnified person or entity (it being agreed
that counsel for Landlord’s insurance company shall be acceptable for such
purposes).


          C.
The provisions of this Article 21 shall survive the expiration or sooner
termination of the term of this lease and are subject to the waivers of
subrogation set forth in Article 42E of this lease.


22. LANDLORD’S LIABILITY; RENT ABATEMENTS


          A.
(i) If, by reason of (a) strike, (b) labor troubles, (c) governmental
pre-emption in connection with a national emergency, (d) any rule, order or
regulation of any governmental agency, (e) conditions of supply or demand, (f)
conditions affected by, or actions taken by Landlord or others reasonably
intended to assure the health, security or safety of the building or any person
in response to, war, any act of terrorism or violence (even if not directed at
the building or any occupant thereof), or other national, state or municipal
emergency (whether or not officially proclaimed by any governmental authority)
or (g) any other cause beyond Landlord’s control, Landlord does not fulfill any
obligation under this lease (other than any obligation for the payment of
money) or shall be unable to supply any service which Landlord is obligated to
supply, this lease and Tenant’s obligation to pay rent hereunder shall in no
wise be affected, impaired or excused, except as otherwise provided herein. As
Landlord shall learn of the happening of any of the foregoing conditions,
Landlord shall promptly notify Tenant of such event and, if ascertainable, its
estimated duration, and will proceed promptly and diligently with the
fulfillment of its obligations as soon as reasonably possible.


                    (ii)
If, by reason of (a) strike, (b) labor troubles, (c) governmental pre-emption
in connection with a national emergency, (d) any rule, order or regulation of
any governmental agency, (e) conditions of supply or demand, (f) conditions
affected by, or actions taken by Tenant or others reasonably intended to assure
the health, security or safety of the demised premises or any person in
response to, war, any act of terrorism or violence (even if not directed at the
demised premises or any occupant thereof), or other national, state or
municipal emergency (whether or not officially proclaimed by any governmental
authority) or (g) any other cause beyond Tenant’s control, Tenant does not
fulfill any obligation under this lease (other than any obligation for the
payment of money), this lease shall in no wise be affected, impaired or excused
and Tenant shall not be deemed in default as a result thereof. As Tenant shall
learn of the happening of any of the foregoing conditions, Tenant shall
promptly notify Landlord of such


50





event and, if ascertainable,
its estimated duration, and will proceed promptly and diligently with the
fulfillment of its obligations as soon as reasonably possible.


          B.
Except as otherwise provided herein, this lease and the obligations of Tenant
hereunder shall in no way be affected because Landlord is unable to fulfill any
of its obligations or to supply any service (e.g., heat, electricity, air
conditioning, cleaning (if Landlord is obligated hereunder to furnish any of
the same), elevators, water), by reason of any of the causes set forth in
subparagraph A(i) above. Landlord shall have the right, upon reasonable prior
notice to Tenant (except in an emergency), without incurring any liability to
Tenant, to stop any service because of accident or emergency, or for repairs,
alterations or improvements, necessary or desirable in the judgment of Landlord
to the building or the demised premises, until such repairs, alterations or
improvements shall have been completed. Such notice may be oral or may be a
written notice either sent by e-mail or hand delivered to the demised premises,
and shall provide the reason for, and estimated duration of, such stoppage.
Neither Landlord nor any other Landlord Party, shall be liable to Tenant or
anyone else, for any loss or damage to person, property or business, unless due
to the negligence or willful misconduct of Landlord. Neither Landlord nor any
other Landlord Party 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. Landlord or its agents shall not
be liable for any injury or damage to persons or property resulting from fire,
explosion, falling ceilings, falling plaster, steam, gas, electricity, water,
rain or snow or leaks from any part of said building or from the pipes,
appliances or plumbing works or from the roof, street or subsurface or from any
other place or by dampness or by any other cause of whatsoever nature,
including but not limited to the making or repairs and improvements, unless
caused by or due to the negligence or willful misconduct of Landlord, its
agents, servants or employees; nor shall Landlord or its agents be liable for
any such damage caused by other tenants or persons in said building or caused
by operations in construction of any private, public or quasi public work.
Tenant shall give prompt notice to Landlord in case of fire or accidents in the
demised premises or in the building or of defects therein or in any fixtures or
equipment. TENANT AGREES TO LOOK SOLELY TO LANDLORD’S ESTATE AND INTEREST IN
THE LAND AND BUILDING, OR THE LEASE OF THE BUILDING OR OF THE LAND AND
BUILDING, AND THE DEMISED PREMISES, INCLUDING THE PROCEEDS THEREOF, FOR THE
SATISFACTION OF ANY RIGHT OR REMEDY OF TENANT FOR THE COLLECTION OF A JUDGMENT
(OR OTHER JUDICIAL PROCESS) REQUIRING THE PAYMENT OF MONEY BY LANDLORD, IN THE
EVENT OF ANY LIABILITY BY LANDLORD, AND NO OTHER PROPERTY OR ASSETS OF LANDLORD
SHALL BE SUBJECT TO LEVY, EXECUTION OR OTHER ENFORCEMENT PROCEDURE FOR THE
SATISFACTION OF TENANT’S REMEDIES UNDER OR WITH RESPECT TO THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT HEREUNDER, OR TENANT’S USE AND OCCUPANCY OF
THE DEMISED PREMISES OR ANY OTHER LIABILITY OF LANDLORD TO TENANT (EXCEPT FOR
GROSS NEGLIGENCE, IN WHICH CASE TENANT MAY ALSO LOOK TO THE PROCEEDS OF ANY
INSURANCE CARRIED BY LANDLORD IF NOT PAYABLE UNDER INSURANCE TO BE MAINTAINED BY
TENANT PURSUANT TO THE TERMS HEREOF).


          C.
LANDLORD AND ITS AGENTS ARE HEREBY RELEASED FROM AND SHALL NOT BE LIABLE FOR
ANY DAMAGES TO PERSONS OR PROPERTY


51





RESULTING FROM OR INCIDENTAL TO
ANY TERRORIST ATTACK NOTWITHSTANDING ANY ACT OR OMISSION OF ANY ACCESS CONTROL
OR SECURITY GUARD PERSONNEL THAT LANDLORD MAY FROM TIME TO TIME EMPLOY IN THE
BUILDING TO CONTROL ACCESS TO THE BUILDING OR TO DETER UNLAWFUL ACTIVITY.


          D.
(i) Notwithstanding anything contained in this lease to the contrary, (a) if as
a result of any repair, alteration, addition or improvement to the building by
or on behalf of Landlord, or (b) the failure of Landlord to make any repair or
to provide any service to the demised premises which Landlord is obligated to
make or provide (as the case may be) under this lease (except if such failure
is due to any of the causes set forth in subparagraph A(i) of Article 22 of
this lease, or a failure by the public utility to provide such service to the
building, to the extent such service is not otherwise reasonably available),
Tenant and its employees cannot and do not use (except on an emergency basis)
all or any portion of the demised premises for the normal conduct of its
business (or for the performance of Tenant’s Initial Installation Work, as the
case may be), for a period of three (3) consecutive Business Days, then Tenant
shall be entitled to an abatement of all rent and additional rent for each day
after such three (3) business day period for such portion of the demised premises
which cannot be used as set forth above.


                    (ii)
Notwithstanding anything contained in this lease to the contrary, if as a
result of the failure of Landlord to make any repair or to provide any service
to the demised premises which Landlord is obligated to make or provide (as the
case may be) under this lease, which failure is due to any of the causes set
forth in subparagraph A(i) of Article 22 of this lease, or a failure by the
public utility to provide such service to the building (but is not due to any
of the causes set forth in subparagraph (i) above), Tenant and its employees
cannot and do not use (except on an emergency basis) all or any portion of the
demised premises for the normal conduct of its business (or for the performance
of Tenant’s Initial Installation Work, as the case may be), for a period of ten
(10) consecutive days, then Tenant shall be entitled to an abatement of all
rent and additional rent for each day after such ten (10) day period for such
portion of the demised premises which cannot be used as set forth above.


23. CONDITION OF PREMISES; LANDLORD’S WORK; TENANT’S INITIAL INSTALLATION WORK; ETC.


          A.
Tenant expressly acknowledges that it has inspected the demised premises and
agrees to accept the demised premises in their “as is” condition, subject to
Landlord’s obligation to perform Landlord’s Work pursuant to paragraph B of
this Article and the Building Improvement Work pursuant to paragraph D of this
Article. Tenant acknowledges that Landlord (i) has made no representation
respecting the physical condition of the demised premises and (ii) shall have
no obligation to do any work in and to the demised premises in order to make
them suitable and ready for occupancy and use by Tenant, except as otherwise specifically
provided in this Article.


          B.
Landlord, at its expense, shall effect the following work (“Landlord’s Work”)
to prepare the demised premises for Tenant’s use and occupancy and as a
condition precedent to the


52






Commencement Date (except for
the work set forth in the second sentence of clause (ii) below, which may not
occur until after the Commencement Date):


                    (i)
Landlord shall (a) perform demolition work in the demised premises, including
removal of ceiling, ductwork, lighting and flooring, so as to create a “slab to
slab” condition in the demised premises, (b) perform all work necessary to
cause all columns, ceilings and core and shell walls in the demised premises to
be repaired or laminated, taped and spackled, as necessary, and ready for paint
and wall coverings, and (c) perform all work which is necessary to separately
demise the 15th Floor Portion in accordance with the space diagram
of the 15th Floor Portion which is included in Exhibit A hereto.
Landlord agrees that upon the completion of such work the demised premises
shall be in “white box” condition, substantially similar to the condition of
the 32nd floor of the building as of the Effective Date and
consistent with the building’s standard “white box” specifications attached
hereto and made a part hereof as Exhibit I.


                    (ii)
Landlord shall perform all work necessary to remove all asbestos from the
demised premises (other than in shafts that run through steam and chilled water
risers), and will obtain and provide to Tenant a duplicate original counterpart
of a Form ACP-5 and/or ACP-7 (as appropriate) for the demised premises. If,
during the performance of Tenant’s Initial Installation Work, Tenant discovers
any asbestos containing materials in the shafts that run through steam and
chilled water risers or any other risers or shafts, whether within or outside
the demised premises, Landlord shall promptly remove such asbestos containing
materials at Landlord’s sole cost and expense. Tenant shall reasonably
cooperate with Landlord in connection with any such asbestos abatement work,
including, without limitation, by providing Landlord and its contractors with
such access to the demised premises as is reasonably necessary for the
performance of such work. Landlord shall use commercially reasonable efforts to
perform such work in a manner which minimizes any interference with the
performance of Tenant’s Initial Installation Work; it being understood and
agreed, however, that any such work may be performed on Business Days during
Business Hours.


                    (iii)
Landlord shall effect all work necessary to provide Tenant with adequate points
of connection to the building’s Class E fire alarm system (but in no event
fewer than ten (10) such points), in a location in the “T” stairwell on either
the 13th floor or the 16th floor of the building, so that
Tenant may connect the fire alarm system for the demised premises to such
building system. Landlord agrees that the building’s Class E fire alarm system
shall have capacity for direct connection to all required tenant fire alarm
systems (including strobes, loudspeakers, sprinkler, alarm and supervisory
devices, etc.) and equipment control and status reporting points on each floor
on which the demised premises are located, without the need for a separate
tenant subsystem.


                    (iv)
Landlord shall perform all work necessary to make the existing electrical
distribution panels on the 14th and 15th floors of the
building available to Tenant, for Tenant’s electricity supply in the demised
premises (the capacity of which is more particularly described in Article
3C(iii) of this lease).


53





                    (v)
Landlord shall (a) replace all convector covers and grills for all existing
radiators in the demised premises, so that same are primed, ready for painting
and in working order; and (b) perform all work necessary to cause such existing
radiators to be in working order.


                    (vi)
Landlord shall effect all work necessary to provide a standpipe connection to
the building’s sprinkler system, in a location on each of the 14th
and 15th floor of the building designated by Landlord, so that
Tenant may provide sprinkler service in the demised premises. Tenant, as part
of Tenant’s Initial Installation Work, shall effect all work necessary to
distribute such sprinkler service throughout the demised premises.


                    (vii)
Landlord shall perform all other work in and to the demised premises so that
such space may be delivered to Tenant in compliance with all applicable laws,
rules and regulations and free of any violations of record.


                    (viii)
Landlord shall perform all work necessary to cause the floor to be smooth and
reasonably level in accordance with industry standard and the building’s
standard “white box” specifications referred to in clause (i) above, so that it
is ready for the application of floor covering (and so that such floor is in
substantially similar condition to the floor on the 32nd floor of the
building as of the Effective Date).


                    (ix)
Landlord shall effect all work necessary to cause the elevator call buttons,
lanterns, doors (including all hardware thereon) and service closets in the
demised premises or which service the demised premises (whether or not in the
demised premises) to comply with the requirements of the ADA.


                    (x)
Landlord shall replace or repair any missing or damaged steel as a result of
the above demolition and shall replace and reinstall fireproofing on same.


Landlord shall perform
Landlord’s Work in a good and workerlike manner, and in a prompt and
expeditious fashion after this lease has been executed and delivered by
Landlord and Tenant. Not more than seven (7) Business Days, nor less than four
(4) Business Days, prior to the date Landlord anticipates that Landlord’s Work
in the demised premises will be substantially completed, Tenant, at Landlord’s
request, will inspect the demised premises and Landlord’s Work, together with
Landlord, and will advise Landlord of any incomplete items for which Landlord
is responsible under paragraph B above (without prejudice to Tenant notifying
Landlord after the Commencement Date (i.e., by Punch List Notice) of any
additional punch list items which Tenant desires Landlord to complete).


          C.
(i) Tenant, at its expense (except as provided in subparagraph (iii) below),
shall perform all other work (“Tenant’s Initial Installation Work”) in and to
the demised premises as is necessary for Tenant to conduct its business
therein, and in order to make such space suitable and ready for Tenant’s
initial occupancy and use. Tenant shall perform Tenant’s Initial Installation
Work in a prompt and expeditious manner following the Commencement Date, in
accordance with the provisions of Article 8, this Article and all other
applicable provisions of this lease, and in compliance with all applicable
laws, rules and regulations.


54





                    (ii)
Tenant shall submit to Landlord for Landlord’s approval (which approval shall
not be unreasonably withheld, conditioned or delayed with respect to
nonstructural interior alterations which do not adversely affect the proper
functioning of utility services, plumbing and electrical lines or other systems
of the building), a full set of architectural and engineering plans and
specifications (including architectural plans and specifications comprised of
partition plans, reflected ceiling plans as well as air conditioning, heating
and all other mechanical drawings and electric plans) in form suitable for
filing with the appropriate agencies of the City of New York to obtain such
alteration or building permit to perform Tenant’s Initial Installation Work. If
Landlord withholds its approval of the plans and specifications (in accordance
with the foregoing), Landlord shall specify in reasonable detail the basis for
withholding such approval and Tenant shall make appropriate modifications to
the plans and specifications to correct or eliminate the objections specified
by Landlord in such disapproval and shall resubmit the modified plans and
specifications to the Landlord within a reasonable period of time after they
are returned to Tenant unapproved. If Landlord fails to respond to any such
request for approval within ten (10) days after Landlord’s receipt of such
plans and specifications, Tenant may send Landlord a second request for
approval of such plans and specifications. If Landlord fails to respond to such
second request for approval within five (5) Business Days after its receipt of
same, then Landlord shall be deemed to have approved such plans and
specifications (provided such second request specifies in bold faced type and
capital letters that Landlord shall be deemed to have approved such plans and
specifications if it fails to respond to such second request within such five
(5) business day period). The terms and provisions set forth in this
subparagraph (ii) governing the approval and disapproval of plans and
specifications shall apply equally to approving and disapproving revised plans
and specifications and all change orders. No work may be performed without
Landlord’s prior approval of the plans and specifications and all contractors
and sub-contractors engaged to perform Tenant’s Initial Installation Work. No
such work shall be commenced without the plans and specifications therefor
having been approved by Landlord and the appropriate permits and approvals
therefor having been issued by the City of New York Department of Buildings and
any other governmental agency having jurisdiction thereof. Approval by Landlord
of any plans or specifications shall not be deemed to constitute a warranty or
representation that such plans or specifications shall conform to applicable
laws and regulations or shall be approved by the Department of Buildings or any
other governmental agency. At Tenant’s request, Landlord shall execute all
required permit applications and other forms upon submission of Tenant’s plans
and specifications by Tenant but prior to Landlord’s review of same, but execution
of such forms by Landlord shall not constitute approval of the alterations in
question.


          (iii)
Landlord shall provide Tenant an allowance of up to Five Million Nine Hundred
Ninety-Eight Thousand Three Hundred and 00/100 ($5,998,300.00) Dollars to
defray the cost of construction of any Tenant’s Initial Installation Work which
is performed prior to the second anniversary of the Commencement Date. Such sum
(“Landlord’s Contribution”) shall be payable (as hereinafter provided) against
requisitions therefor accompanied by (a) the certification of Tenant’s
architect that the work described on such requisition has been completed
substantially in accordance with the plans and specifications theretofore
approved by Landlord, (b) a list specifying the work performed for which such
requisition is being submitted and (c) partial conditional waivers of mechanics
liens for all work for which such installment of Landlord’s Contribution has
been requisitioned, and partial unconditional waivers of mechanics


55





liens for all work for which
payments were made by Landlord with respect to previous requisitions, from each
contractor, sub-contractor, vendor and supplier of labor and material for whom
and to the extent such installment of Landlord’s Contribution is being
requisitioned; it being agreed, however, that Tenant shall not be required to
submit such lien waivers for any such contractor, sub-contractor, vendor or
supplier performing work or providing materials the cost of which shall be less
than $10,000.00. Payments on account of Landlord’s Contribution shall not be
payable more frequently than monthly. Each such installment of Landlord’s
Contribution shall be equal to (1) the total amount of Landlord’s Contribution
requisitioned by Tenant as of the date of the most recent requisition
(including the amount of the most recent requisition), less (2) the total
amount of Landlord’s Contribution paid to Tenant as of the date the most recent
requisition. To illustrate such calculation, and assuming, for example, that
the total of all requisitions submitted by Tenant (including the most recent
requisition) is $100,000, of which $50,000 has been paid to Tenant, and $50,000
is the unpaid amount of the most recent requisition, then the amount of such
installment shall be $50,000, calculated as follows: (1) $100,000, less (2)
$50,000, equals $50,000. Notwithstanding anything contained herein to the
contrary, no portion of Landlord’s Contribution shall be applied by Tenant
against expenses for furniture, office equipment or other personal property,
and not more than $899,745.00 may be applied by Tenant for architectural and
engineering fees or other soft costs relating to Tenant’s Initial Installation
Work (which payments of Landlord’s Contribution for such architectural and
engineering fees and other soft costs shall be made by Landlord upon Tenant’s
submission of invoices therefor (whether before or after the Commencement Date)
which have been approved for payment by an officer of Tenant, anything
contained herein to the contrary notwithstanding). Any dispute regarding
Landlord’s Contribution shall be resolved by expedited arbitration in
accordance with the provisions of Article 41 of this lease. In the event that
any such dispute shall be resolved in Tenant’s favor so that Landlord shall
obligated to pay Tenant all or any part of Landlord’s Contribution, but
Landlord fails to do so within fifteen (15) days after such decision is
rendered in such arbitration proceeding, then Tenant shall be entitled to a
rent credit (i.e., Tenant may offset such amount due Tenant against rent) in
the amount of the portion of Landlord’s Contribution which Landlord has failed
to pay Tenant (within such fifteen (15) day period) in accordance with the
decision in such arbitration proceeding, with interest at the Applicable Rate
from the date such sums were to have been reimbursed or paid to Tenant from
Landlord’s Contribution until the date recovered in full by Tenant, and with
all reasonable legal fees incurred by Tenant in connection with such dispute
(provided Tenant furnishes Landlord with paid invoices or other reasonably
sufficient evidence of such fees). Such rent credit shall be applied, until
fully depleted, against the next fixed annual rent payable under this lease.


                    (iv)
Notwithstanding anything contained herein to the contrary, Tenant shall
maintain, at Tenant’s expense, in addition to any other insurance required
pursuant to this lease with respect to alterations, a Builders “All Risk”
insurance policy (Broad Form) covering the full replacement cost of Landlord’s
Work and Tenant’s Initial Installation Work and the materials and supplies
delivered and stored in the demised premises for the purpose of being
incorporated in such work.


                    (v)
Notwithstanding anything contained herein to the contrary, Tenant shall deliver
to the Landlord final record drawings of the Tenant Initial Installation Work,
including, as may be pertinent to the work performed, a reflected ceiling plan,
mechanical and electrical


56





drawings, partition plan and
any other drawings which may be required to indicate accurately the layout and
systems of the demised premises. Tenant shall require its architect to load and
maintain such record plans on a CADD system and to deliver diskettes or other
medium suitable for Landlord’s needs and compatible, if feasible, with
Landlord’s computer applications, so as to enable Landlord to use such
CADD-saved plans.


                    (vi)
Landlord shall, at request of Tenant, schedule the building’s freight elevator
(or a passenger elevator converted for use as a freight elevator) for Tenant’s
move into the demised premises after 6:00 p.m. and before 7:00 a.m. (which may
be effected on Business Days or on weekends). Such use shall be subject to a
prior reservation by some other tenant and or the need by Landlord for the use
of such elevator for other operating or construction purposes. Notwithstanding
anything contained herein to the contrary, in connection with Tenant’s Initial
Installation Work and initial move-in, it is agreed that Tenant shall not be
required to pay for the first fifty (50) hours of such freight elevator use on
an after hours basis.


                    (vii)
It is acknowledged and agreed that Tenant, at its expense (except as hereinabove
provided) and as part of Tenant’s Initial Installation Work, shall provide, and
shall effect all work (the “A/C Work”) necessary to install, new water cooled
air-conditioning units for the demised premises (the “A/C Units”), with a total
cooling capacity of at least two hundred five (205) tons (with at least 120
tons for the 14th Floor Portion and at least 85 tons for the 15th
Floor Portion), each of which units shall be of equal or better quality to the
current building standard air-conditioning unit, the Petra Engineering
Industries Co., Model PAHHC62C2. The A/C Work shall include, without
limitation, (a) the connection of the A/C Units to the building chilled water
and warm water circulating system described in Article 24C hereof, and (b) all
work necessary to install all associated duct work, fans, diffusers and other
equipment necessary to distribute air-conditioning service throughout the
demised premises from the A/C Units.


                    (viii)
It is acknowledged and agreed that Tenant, at its expense (except as
hereinabove provided) and as part of Tenant’s Initial Installation Work, shall
effect all work (the “Bathroom Renovation Work”), if any, necessary to renovate
and refurbish (a) the three (3) existing core bathrooms (one (1) men’s and two
(2) women’s) on the 14th floor of the building, and (b) the three
(3) existing core bathrooms (one (1) men’s and two (2) women’s) on the 15th
floor of the building, so that the condition of, and quality of installation
in, all such bathrooms shall be in substantially the same as or better than the
condition of, and quality of installation in, the core bathrooms on the 28th
floor of the building as of the Effective Date. Landlord shall designate other
bathrooms in the building for the other tenants on the 15th floor to
use on an interim basis during the period that Tenant is performing the
Bathroom Renovation Work.


          D.
Tenant acknowledges that it has been advised that Landlord is currently in the
process of implementing a program involving the renovation and upgrading of
various portions of the building and its systems, which work will include,
without limitation, the specific items set forth in Exhibit H attached hereto
and made a part hereof (the “Building Improvement Program”). Landlord agrees to
perform the work necessary to complete the Building Improvement Program in a
prompt and diligent manner, and acknowledges that such agreement constitutes a
material inducement to Tenant to enter into this lease.


57





          E.
Landlord shall effect all work necessary to renovate the common corridors on
the 15th floor of the building, in accordance with the
specifications which are attached hereto and made a part hereof as Exhibit J
(“Landlord’s 15th Floor Corridor Work”). Landlord shall substantially
complete Landlord’s 15th Floor Corridor Work within sixty (60) days
after Tenant notifies Landlord that Tenant has substantially completed Tenant’s
Initial Installation Work in the 15th Floor Portion; provided,
however, that such sixty (60) day period shall be extended by one day for each
day that Landlord’s 15th Floor Corridor Work is delayed due to any
of the causes set forth in Article 22A(i) of this lease, or by any act or
omission of Tenant its agents, contractors or employees, or by any change requested
by Tenant. Tenant shall reasonably cooperate with Landlord in connection with
Landlord’s 15th Floor Corridor Work, including, without limitation,
by providing Landlord and its contractors with such access to the 15th
Floor Portion as is necessary for the performance of such work within such
sixty (60) day period. Landlord shall use commercially reasonable efforts to
perform Landlord’s 15th Floor Corridor Work in a manner which
minimizes any interference with Tenant’s business operations in the 15th
Floor Portion; it being understood and agreed, however, that such work may be
performed on Business Days during Business Hours.


          F.
Landlord shall effect all work necessary to create an opening in the slab
between the 14th Floor Portion and the 15th Floor Portion
(“Landlord’s Slab Opening Work”), so that Tenant may, as part of Tenant’s
Initial Installation Work, install a stairway between such portions of the
demised premises (and Tenant hereby agrees to do so). Landlord’s Slab Opening
Work shall include, without limitation, any and all work necessary to reinforce
the slab and to install any required fireproofing materials. Such opening shall
be in a location reasonably designated by Tenant in a plan (which may be
separate from Tenant’s plans and specifications for Tenant’s Initial
Installation Work) depicting same (the “Slab Opening Plan”), prepared by
Tenant’s architect, which contains all architectural and engineering details
and information necessary for Landlord to properly and legally perform Landlord’s
Slab Opening Work, which location shall be reasonably acceptable to Landlord.
The size of such opening shall in no event exceed ten (10) feet by sixteen (16)
feet. Any such stairway shall be deemed a “Specialty Alteration” for purposes
of Article 8C(ii) of this lease, so that, unless Landlord elects otherwise in
writing at least one hundred eighty (180) days prior to the Expiration Date,
Tenant shall be required to remove such stairway and close up such opening in
the slab at the expiration or sooner termination of the term of this lease.
Landlord shall substantially complete Landlord’s Stair Opening Work within
ninety (90) days after Landlord’s approval of the Slab Opening Plan, which
approval shall not be unreasonably, withheld, conditioned or delayed (it being
agreed that the response periods and “deemed approved” provisions set forth in
Article 23C(ii) hereof with respect to Landlord’s review and approval of the
plans and specifications for Tenant’s Initial Installation Work shall apply,
also, to Landlord’s review and approval of the Slab Opening Plan); provided,
however, that such ninety (90) day period shall be extended by one day for each
day that Landlord’s Slab Opening Work is delayed due to any of the causes set
forth in Article 22A(i) of this lease, or by any act or omission of Tenant its
agents, contractors or employees, or by any change requested by Tenant. Tenant
shall reasonably cooperate with Landlord in connection with Landlord’s Slab
Opening Work, including, without limitation, by providing Landlord and its
contractors with such access to the demised premises as is necessary for the
performance of such work within such ninety (90) day period. Landlord shall use
commercially reasonable efforts to perform Landlord’s Slab Opening Work in a
manner which minimizes any


58





interference with Tenant’s
Initial Installation Work; it being understood and agreed, however, that such
work may be performed on Business Days during Business Hours.


24. SERVICES


          A.
Landlord shall provide no services, except as specifically set forth in this
lease (including Exhibit B hereto).


          B.
Tenant acknowledges that it has been advised that the cleaning contractor for
the building may be a subdivision or affiliate of Landlord. Tenant agrees to
employ said contractor or such other contractor as Landlord may from time to
time designate for any special waxing, polishing and other cleaning work in or
to the demised premises and Tenant’s furniture, fixtures and equipment,
provided that the prices charged by said contractor are comparable to the
prices charged by other contractors for the same work. Tenant agrees that under
no circumstances shall it employ any other cleaning contractor, nor any
individual, firm or organization for such purposes without Landlord’s prior
written consent. However, Tenant may use its own employees to perform such
cleaning services, provided that same does not cause a labor disturbance or
disruption at the building. If Landlord and Tenant cannot agree on whether the
prices being charged by the contractor designated by the Landlord are
comparable to those charged by other contractors, Landlord or Tenant may submit
such dispute to binding arbitration in accordance with Article 41 of this
lease. While such dispute is pending resolution, Tenant shall pay the charges
billed by Landlord or its approved cleaning contractor, as the case may be, but
without prejudice to Tenant’s position in such dispute. Landlord shall not be
obligated to provide cleaning services in excess of the specifications set
forth in Exhibit B annexed hereto and made part hereof.


          C.
(i) Landlord agrees to install, at its own cost and expense, all equipment
necessary to make available to Tenant the building chilled water and warm water
circulating system (summer cooling and winter ventilation) (the “Building
Chilled and Warm Water Equipment”).


                    (ii)
Tenant agrees that necessary work for the installation of any such equipment or
facilities and the repair and maintenance thereof may be performed by Landlord
during regular working hours without diminution or abatement of rent and
without liability on the part of Landlord by reason of inconvenience, annoyance
or injury to business arising from the performance of said work. However, with
respect to any such work which is performed after Landlord’s Work in the
demised premises is substantially completed, Landlord agrees to give Tenant
reasonable prior notice of such work (which may be oral), and to use
commercially reasonable efforts to perform such work in a manner that minimizes
any interference with Tenant’s use of the demised premises; it being understood
and agreed, however, that such work may be performed on Business Days during
Business Hours.


                    (iii)
The entire installation and all equipment and facilities at any time forming
the Building Chilled and Warm Water Equipment shall be and at all times remain
the property of Landlord. Any change, alteration, addition or extension of any
of said equipment or facilities shall be performed by Landlord at Tenant’s
expense. Tenant shall under no circumstances make any change, alteration,
addition or extension of any of said equipment or facilities, without


59





Landlord’s prior written
consent in each instance, which consent shall not be unreasonably withheld or
delayed.


                    (iv)
Landlord agrees to operate and maintain said equipment and facilities, at
Landlord’s expense (subject to Article 2B hereof), provided that all repairs,
substitutions replacements caused by reason of the carelessness, omission,
neglect or improper conduct of Tenant, its servants, employees, agents,
visitors or licensees shall be made by Landlord at the expense of Tenant,
subject to the provisions of Article 42E hereof.


                    (v)
Tenant agrees that Landlord shall not be obligated to operate such equipment
and facilities after or before Business Hours on Business Days or at any time
on days other than Business Days, except after prior written notice from and
payment by Tenant as hereinafter specified. Landlord shall operate such
equipment and facilities at times other than such normal business hours, at
Landlord’s then established rates in the building ($500 per hour per zone on
the date hereof) for such after-hours service, payable by Tenant as additional
rent when billed, provided that Tenant shall give notice prior to 1:00 P.M. in
the case of after-hours service on Business Days and prior to 3:00 P.M. on
Fridays in the case of after-hours service on Saturdays and Sundays (or 3:00
P.M. on the preceding Business Day, in the case of holidays). Landlord agrees
that Landlord’s rate in the building for operating such equipment and
facilities on an after-hours basis shall only be increased by the amount of any
actual increase in the cost to Landlord of providing such service. Landlord
further agrees that such after-hours rate shall be prorated (on a per tenant
basis) between Tenant and any other tenant in the same zone as Tenant that
requests and receives such after-hours service. Tenant acknowledges that it has
been advised by Landlord that, for purposes of this Article 24C(v), the demised
premises and all of the Option Space/ROFO Space (each as hereinafter defined in
Article 43) are in the same zone, and Landlord agrees that such space will
remain in the same zone during the term of this lease. Tenant agrees that
Landlord’s failure to operate such equipment and facilities in the absence of
such notice and payment shall not be deemed a partial or other eviction, or
disturbance of Tenant’s use, enjoyment, or possession of the demised premises,
and shall not render Landlord liable for damages, by abatement of rent or
otherwise, and Tenant shall not be relieved from any obligation under this
lease.


          D.
If and so long as Tenant is not in default under this lease beyond any
applicable notice and/or grace period, Landlord shall provide Tenant with two
(2) Executive Passes to the Empire State Building Observatory (“Observatory”)
on the 86th floor of the building (each with a maximum of thirty
(30) free visits), each calendar year during the term hereof, at no additional
charge to Tenant.


          E.
Except with respect to the A/C Units and any Supplemental A/C Units (as
hereinafter defined in Article 31C(i)), the building systems and mechanical
equipment including, without limitation, all elevator equipment, shall not
generate noise in excess of (i) NC-40 within ten (10) feet of any mechanical
equipment rooms or elevator machine rooms located within or serving the demised
premises and (ii) NC-35 within any other portion of the demised premises
including, without limitation, any conference rooms.


60






25. JURY
WAIVER; DAMAGES


          A.THE
PARTIES HERETO HEREBY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW, TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF SUCH
PARTIES AGAINST THE OTHER WITH RESPECT TO ANY MATTER WHATSOEVER ARISING OUT OF
OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND
TENANT, TENANT’S USE OR OCCUPANCY OF THE DEMISED PREMISES, OR FOR THE
ENFORCEMENT OF ANY REMEDY WHETHER PURSUANT TO STATUTE, IN CONTRACT OR TORT, AND
IRRESPECTIVE OF THE NATURE OR BASIS OF THE CLAIM INCLUDING BREACH OF AN
OBLIGATION TO MAKE ANY PAYMENT, FRAUD, DECEIT, MISREPRESENTATION OF FACT,
FAILURE TO PERFORM ANY ACT, NEGLIGENCE, MISCONDUCT OF ANY NATURE OR VIOLATION
OF STATUTE, RULE, REGULATION OR ORDINANCE. IF LANDLORD COMMENCES AGAINST TENANT
ANY SUMMARY PROCEEDING OR OTHER ACTION TO RECOVER POSSESSION OF THE DEMISED
PREMISES OR TO RECOVER ANY RENT, TENANT SHALL NOT INTERPOSE ANY COUNTERCLAIM OF
WHATEVER NATURE OR DESCRIPTION IN ANY SUCH PROCEEDING OR ACTION, EXCEPT A
COMPULSORY COUNTERCLAIM.


          B.
(i) NO DAMAGES SHALL BE AWARDED AND TENANT HEREBY WAIVES ANY CLAIM FOR DAMAGES
(WHETHER ACTUAL, COMPENSATORY, CONSEQUENTIAL, SPECIAL OR PUNITIVE) IN ANY
ACTION OR PROCEEDING (WHETHER JUDICIAL OR AN ARBITRATION) RELATING TO
LANDLORD’S WITHHOLDING, DELAYING OR CONDITIONING ANY CONSENT OR APPROVAL OR THE
REASONABLENESS OF ANY SUCH WITHHOLDING, DELAY OR CONDITION. HOWEVER, THE
PROVISIONS OF THIS SUBPARAGRAPH B(i) SHALL NOT BE APPLICABLE IF IT IS FINALLY
DETERMINED BY A COURT THAT LANDORD ACTED MALICIOUSLY OR IN BAD FAITH IN
WITHOLDING OR DELAYING SUCH CONSENT OR APPROVAL.


                    (ii)
If Tenant desires to determine any dispute between Landlord and Tenant as to
whether Landlord has unreasonably withheld, unreasonably conditioned or
unreasonably delayed its consent or approval, as above provided, Tenant may
initiate expedited arbitration in accordance with the provisions of Article 41
of this lease, or Tenant may commence any legal proceedings (subject to (i) above),
in either case, to settle and finally determine such dispute.


          C.
Except as otherwise specifically provided in Article 12 of this lease, Landlord
and Tenant each waive any consequential, special and punitive damages claim
against the other in connection with this lease.


26. NO WAIVER;
ETC.


          No
act or omission of Landlord or its agents shall constitute an actual or
constructive partial or total eviction or give rise to a right of Tenant to
terminate this lease or receive an abatement of any portion of its rent, or to
be relieved of any other obligation hereunder or to be compensated for any loss
or injury suffered by it, except as otherwise explicitly set forth herein. No
act or omission of Landlord or its agents shall constitute acceptance of a
surrender of the


61





premises, except a writing
signed by Landlord. The delivery of keys to Landlord or its agents shall not
constitute a termination of this lease or a surrender of the premises.
Acceptance by Landlord of less than the rent herein provided shall at
Landlord’s option be deemed on account of earliest rent remaining unpaid. No
endorsement on any check, or letter accompanying rent, shall be deemed an
accord and satisfaction, and such check may be cashed without prejudice to
Landlord. No waiver of any provision of this lease by Landlord or Tenant shall
be effective, unless such waiver be in writing signed by the other party. This
lease contains the entire agreement between the parties, and no modification
thereof shall be binding unless in writing and signed by the party concerned.
Tenant shall comply with the rules and regulations set forth on Schedule A
attached hereto and made a part hereof, and any reasonable modifications
thereof or additions thereto. Landlord shall not be liable to Tenant for the
violation of such rules and regulations by any other tenant. Failure of
Landlord to enforce any provision of this lease, or any rule or regulation,
shall not be construed as the waiver of any subsequent violation of a provision
of this lease, or any rule or regulation. Landlord shall not enforce the rules
and regulations against Tenant in a discriminatory manner. If there shall be
any inconsistency between the provisions of this lease and the rules and
regulations, the provisions of this lease shall govern. Reasonable written
notice of any additional rules and regulations (or any modification of the
existing rules and regulations) shall be given to Tenant. In case Tenant
disputes the reasonableness of any additional rule or regulation (or modification,
as the case may be) hereafter made or adopted by Landlord or Landlord’s agents,
the parties hereto agree to submit the question of the reasonableness of such
rule or regulation (or modification, as the case may be) for decision to the
Chairman of the Board of Directors of the Management Division of the Real
Estate Board of New York, Inc., or to such impartial person or persons as he
may designate; provided however, if Tenant objects to submitting the question
to such Chairman or to his designee or designees, the same shall be submitted
to arbitration as set forth in Article 41 hereof, and the determination of the
Chairman, his designee or designees, or the arbitrators as the case may be,
shall be final and conclusive upon the parties hereto. The right to dispute the
reasonableness of any additional rule or regulation (or modification, as the
case may be) upon Tenant’s part shall be deemed waived unless the same shall be
asserted by service of a notice in writing upon Landlord within thirty (30) days
after written notice to Tenant of the adoption of any such additional rule or
regulation (or modification, as the case may be). This lease shall not be
affected by nor shall Landlord in any way be liable for the temporary closing
or darkening of windows in the premises, for any reason, including as the
result of construction by a party unrelated to Landlord on any property of
which the demised premises are not a part or by Landlord’s own acts.


27. OCCUPANCY AND USE BY TENANT; SIGNAGE


          A.
(i) Tenant shall not obstruct or permit the obstruction of the light, halls,
areas, roof, stairway or entrances to the building, and will not affix, erect
or inscribe any signs, projections, awnings, signals or advertisements of any
kind to any part of the premises including the inside or outside of the windows
or doors thereof and will not paint the outside of the doors thereof or the
inside or outside of the windows thereof unless and until the style, size,
color, construction and location thereof have been approved in writing by
Landlord, which approval shall not be unreasonably withheld, conditioned or
delayed; provided, however, that no such approval shall be required with
respect to any identity signage which is not readily visible from the elevators
which service the 14th floor or from any other area outside of the
demised premises; provided, however, that if and so long as the named Tenant
hereunder (i.e., Coty Inc.) or its


62





Affiliate or a Successor Entity
is the Tenant under this lease, no such approval shall be required with respect
to any such identity signage which is readily visible from the elevators which
service the 14th floor of the building, provided Tenant gives
Landlord at least fifteen (15) days’ prior written notice of the installation
of such signage; and provided, further, that such signage is professionally
prepared and in keeping with the first class nature of the building.


                    (ii)
Notwithstanding anything contained in this lease to the contrary, it is
understood and agreed that Tenant, at its expense, shall cause Tenant’s
entrance door for any partial floor hereafter included in the demised premises
(other than the 15th Floor Portion or any other partial floor
hereafter included in the demised premises which comprises more than 35% of the
rentable square foot area of such floor, which measurement shall be made using
the same method that was used by Landlord to measure the original demised
premises hereunder), and any approved sign on Tenant’s entrance door for such
partial floor, to conform to the standards and specifications for entrance
doors and signage set forth in Exhibit K attached hereto and made a part
hereof, and that any such entrance door and signage shall be manufactured by a
company designated by Landlord in writing and installed by a company approved
by Landlord in writing. Tenant shall submit to Landlord for its prior written
approval a proposal regarding the content of any such entrance door sign,
promptly after the execution and delivery of this lease by Tenant. Any changes
to such approved entrance door sign shall be subject to Landlord’s prior
reasonable approval and to Landlord’s then standard signage specifications.


          B.
(i) If Tenant shall install a wireless intranet, Internet, and communications
network (also known as “Wi-Fi”) within the demised premises, such network (the
“Network”) shall be for the use by and only by Tenant and its permitted
occupants and their employees subject to the terms hereof. No antenna shall
exceed one meter in size and shall, subject to the following provisions of this
paragraph B, conform to all FCC specifications.


                    (ii)
Tenant shall not solicit or permit other tenants or occupants of the building
outside of the demised premises to use the Network or any other communications
service, including, without limitation, any wired or wireless Internet service
that passes through, is transmitted through, or emanates from the demised
premises.


                    (iii) Tenant agrees that Tenant’s communications
equipment and the communications equipment of Tenant’s service providers and
contractors retained to service the demised premises or installed in the
building to service the demised premises including, without limitation, any
antennas, switches, or other equipment (collectively, “Tenant’s Communications
Equipment”) shall be of a type and, if applicable, a frequency that will not
cause radio frequency, electromagnetic, or other interference to any other
party or any equipment of any other party including, without limitation,
Landlord, other tenants, or occupants of the building or any other party in
violation of FCC specifications concerning radio frequency interference
(“RFI”). In the event that Tenant’s Communications Equipment causes or is
believed to cause any such prohibited RFI, upon receipt of notice from Landlord
of such interference, Tenant will take all steps necessary to correct and
eliminate the interference. If the prohibited RFI is not eliminated within 24
hours (or a shorter period if Landlord believes a shorter period to be
appropriate) then, upon request from Landlord, Tenant shall shut down the
Tenant’s Communications Equipment pending resolution of the interference, with
the exception of intermittent testing upon prior notice to and with the
approval of Landlord. No Wi-Fi, Network, or Tenant’s Communication


63





Equipment may be installed in
any lobby, corridor, building common area or any other area not within the
exclusive control of Tenant or within the demised premises.


                    (iv)
Tenant acknowledges that Landlord has granted and/or may grant lease rights,
licenses, and other rights to various other tenants and occupants of the
building and to telecommunications service providers.


28. NOTICES


          Except
as otherwise expressly provided in this lease, any bills, statements, notices,
demands, requests or other communications given or required to be given under
this lease shall be deemed sufficiently given or rendered if in writing, (i)
sent by registered or certified mail (return receipt requested), or (ii) sent
by nationally recognized overnight courier, or (iii) delivered personally,
addressed as follows or to such other address as either Landlord or Tenant may
designate as its new address for such purpose by notice given to the others in
accordance with the provisions of this Article 28:


	
 

	
 

	
 


	
 

	
If to
Landlord:

	
Empire State
Building Company L.L.C.


	
 

	
 

	
350 Fifth
Avenue, Third Floor


	
 

	
 

	
New York,
New York 10118


	
 

	
 

	
Attn:
General Manager


	
 

	
 

	
 


	
 

	
with a copy
to:

	
Wien &
Malkin LLC


	
 

	
 

	
250 West
57th Street


	
 

	
 

	
New York,
New York 10165


	
 

	
 

	
Attn: Senior
Asset Supervisor


	
 

	
 

	
 


	
 

	
If to
Tenant:

	
Coty Inc.


	
 

	
 

	
Two Park
Avenue


	
 

	
 

	
New York,
New York 10016


	
 

	
 

	
Attn: Chief
Financial Officer


	
 

	
 

	
 


	
 

	
with a copy
to:

	
Coty Inc.


	
 

	
 

	
Two Park
Avenue


	
 

	
 

	
New York,
New York 10016 


	
 

	
 

	
Attn:
General Counsel




          or
at any place where Tenant or any agent or employee of Tenant may be found if
mailed subsequent to Tenant’s vacating, deserting, abandoning or surrendering
the premises. Tenant hereby acknowledges and agrees that any such bill,
statement, demand, notice, request or other communication may be given by
Landlord’s agent or Landlord’s counsel on behalf of Landlord, and Landlord
hereby acknowledges and agrees that any such bill, statement, demand, notice, request
or other communication may be given by Tenant’s counsel on behalf of Tenant.
Any such bill, statement, demand, notice, request or other communication shall
be deemed to have been rendered or given when received or refused, as indicated
on the delivery receipt. Notwithstanding anything contained in this Article 28
to the contrary, bills and statements issued


64





by Landlord may be sent by the
method(s) set forth hereinabove, without copies to any other party. This notice
provision has been specifically negotiated between the parties hereto.


29. WATER


          Landlord
shall provide water to Tenant for ordinary lavatory and pantry uses, including
one (1) shower, two (2) executive bathrooms and more than one (1) pantry on
each floor comprising the demised premises. If Tenant uses water for other than
such ordinary lavatory and pantry uses, including one (1) shower, two (2)
executive bathrooms and more than one (1) pantry on each floor comprising the
demised premises, then Landlord may install a water meter to measure Tenant’s
water consumption for all purposes and Tenant agrees to pay for the
installation and maintenance thereof and for water consumed as shown on said
meter.


30. SPRINKLER
SYSTEM


          It
is acknowledged and agreed that Tenant is installing a sprinkler system for the
demised premises as part of Tenant’s Initial Installation Work, and that Tenant
shall be responsible for maintaining same and for making any necessary repairs
or replacements thereto. Supplementing Article 15 hereof and not in lieu
thereof, if the New York Board of Fire Underwriters, the New York Fire
Insurance Exchange, the Insurance Services Office or any governmental authority
requires any alteration to said sprinkler system by reason of Tenant’s
occupancy or use of the premises, including any alteration necessary to obtain
the full allowance for a sprinkler system in the fire insurance rate of
Landlord, or for any other reason, Tenant shall make such installation or
alteration promptly, and at its own expense.


31. HEAT; AIR
CONDITIONING; ELEVATOR; ETC.


          A.
(i) Landlord shall provide passenger elevator service during all Business Hours
on all Business Days; provided, however, at least two (2) elevators shall be
available on a call basis at all times. Tenant acknowledges that there are
currently eight (8) passenger elevators servicing the 14th and 15th
floors of the building, and Landlord agrees that, subject to the terms of this
paragraph A, such elevators shall continue to service the 14th and
15th floors throughout the term hereof (subject, however, to
emergencies, any required repairs and/or maintenance and the other applicable
provisions of this lease). Landlord shall furnish heat and air conditioning to
the demised premises so as to provide for reasonably comfortable occupancy
thereof during all Business Hours on all Business Days. Landlord shall cause
the premises to be kept clean in accordance with the cleaning specifications
set forth on Exhibit B annexed hereto and made part hereof. The premises shall
be kept in order by Tenant. Landlord, its cleaning contractor and their
employees shall have after-hours access to the demised premises and the use of
Tenant’s light, power and water in the demised premises as may be reasonably
required for the purpose of cleaning the demised premises. Landlord may remove
Tenant’s extraordinary refuse (not covered by said cleaning specifications)
from the building and Tenant shall pay the reasonable cost thereof.


          (ii)
Provided that (a) the A/C Units to be installed by Tenant shall provide a
minimum of 205 tons of cooling capacity to the demised premises (with a minimum
of 120 tons to the 14th Floor Portion and the balance to the 15th
Floor Portion), (b) occupancy levels in the


65





demised premises will not
exceed one (1) person per one hundred (100) square feet of rentable area, (c)
the electrical load in the demised premises shall not exceed six (6) watts per
rentable square foot, and (d) Tenant shall at all times comply with applicable
and relevant building regulations affecting the operation of the A/C Units, the
A/C Units and the building heating system shall be capable of maintaining the
following conditions: (i) a minimum average indoor dry bulb temperature of not
less than 68 degrees Fahrenheit, whenever the outdoor dry-bulb temperature,
during business hours, is lower than 65 degrees and not lower than 0 degrees
Fahrenheit; and (ii) a minimum average indoor dry bulb temperature of no higher
than 75 degrees Fahrenheit, whenever the outdoor dry-bulb temperature, during
business hours, is higher than 65 degrees and not higher than 95 degrees
Fahrenheit, and the outdoor wet-bulb temperature does not exceed 75 degrees
Fahrenheit.


          B.
During the term of this lease, any air-conditioning equipment located in and/or
servicing the demised premises, including, without limitation, the A/C Units
(but excluding any Supplemental A/C Unit, as hereinafter defined), shall be
maintained, repaired and replaced as necessary by Landlord. All such equipment
is and shall remain the property of Landlord. Such obligation shall include the
cleaning of any HVAC filters at least two (2) times per year, and the
replacement of such filters at least once every two (2) years. However, such
obligation shall not include the maintenance, repair and/or replacement of the
duct work, fans, diffusers and other equipment necessary for the distribution
of air-conditioning service in the demised premises, all of which shall be the
responsibility of Tenant hereunder. Tenant shall not abuse any such equipment,
and Tenant shall reimburse Landlord within thirty (30) days after demand for
any damage to, or replacement of, such equipment caused by Tenant, its agents,
employees or contractors (subject to the provisions of Article 42E hereof).
This obligation shall survive the expiration or earlier termination of the term
hereof. Tenant shall reimburse Landlord, in accordance with Article 3 of this
lease, for electricity consumed by the air-conditioning equipment serving
solely the premises.


          C.
Notwithstanding the foregoing, Tenant shall be responsible for maintaining,
repairing and replacing, as necessary, any Supplemental A/C Unit (as
hereinafter defined) serving the demised premises, as well as all other costs
for operating the same (including, without limitation, all electricity consumed
by any such unit). In the event that any such Supplemental A/C Unit is
installed by or on behalf of Tenant, the same shall be an air-cooled unit and
all electricity consumed by such unit shall be furnished on a submetering
basis, in accordance with the applicable provisions of Article 3 of this lease,
and as part of such installation work, Tenant shall install a submeter, at
Tenant’s expense, in a location reasonably designated by Landlord and
reasonably acceptable to Tenant. If Tenant fails to promptly install such
submeter, then Landlord shall do so, at Tenant’s expense (which shall be
payable within thirty (30) days after demand as additional rent under this
lease). The term “Supplemental A/C Unit” when used herein shall mean an air
conditioning unit that provides air-conditioning service to the demised
premises in excess of the air-conditioning service being provided by the A/C
Units.


          D.
Supplementing Article 8 and Article 23 hereof, any louvers installed by or on
behalf of Tenant in connection with the A/C Units and/or any Supplemental A/C
Unit serving the demised premises shall be deemed approved by Landlord,
provided such louvers are in compliance with all applicable laws, rules and
regulations, including, without limitation, the


66





requirements of the New York
Landmarks Preservation Commission (“Landmarks”) and any applicable building
codes. Landlord agrees to reasonably cooperate with Tenant (at no material
expense to Landlord, and without any liability to Landlord) in connection with
obtaining any required certificate, sign-off, permit or approval from any
governmental authority in connection with the installation of such louvers,
including, without limitation, the approval of Landmarks. Tenant shall have no
restoration obligation with respect to such louvers.


32. RENEWAL
OPTION


          A.
Tenant shall have the option to extend and renew the term of this lease with
respect to the then existing demised premises, in its then “as is” condition,
for one (1) additional period of five (5) years, commencing on the first day of
the sixteenth Lease Year and ending on the last day of the twentieth Lease Year
(the “Extended Term”), upon the same terms and conditions as contained in this
lease (unless changed or modified by mutual agreement) except that (i) the
fixed annual rental rate, without electricity (and subject to operating expense
and real estate tax escalation additional rents pursuant to paragraphs B and C
of Article 2 hereof, respectively), for the Extended Term shall be a sum equal
to one hundred percent (100%) of the fair and reasonable annual market rental
rate for the demised premises as of the first day of the Extended Term, taking
into account the rentals at which leases are being concluded for comparable
space in the building and in comparable buildings in the same rental area as
the building and all other relevant factors, including the new Base Year and
base tax year applicable to the Extended Term, as hereinafter provided; (ii)
for the Extended Term: under paragraph B of Article 2, the term “Base Year”
shall mean the Expenses for the building project for the calendar year during
which the commencement date of the Extended Term occurs; and the first
“comparative year” under said paragraph B of Article 2 shall be the calendar
year immediately following such calendar year during which the commencement
date of the Extended Term occurs; (iii) for the Extended Term: under paragraph
C of Article 2, the term “base tax year” shall mean the real estate taxes
assessed against the building project for the New York City real estate tax
year during which the commencement date of the Extended Term occurs; and the
first “comparative year” under said paragraph C of Article 2 shall be the New
York City real estate tax year immediately following such base tax year; and
(iv) this lease, as extended for the Extended Term, shall contain no renewal
option. The exercise of such option shall only be effective upon, and in strict
compliance with, the following terms and conditions:


          (a)
Written notice of the exercise of such option shall be given by Tenant to
Landlord not later than twelve (12) months prior to the Expiration Date of the
initial term of this lease (the “Initial Term”). Time shall be of the essence
in connection with any exercise of such option by Tenant hereunder.


          (b)
(1) The fair and reasonable annual market rental rate for the demised premises
effective as of the commencement of the Extended Term shall take into account,
also, the five (5) year term of the extension, and it shall be determined, as
aforesaid, during the last six (6) months of the Initial Term. On or before the
commencement of such six (6) month period, Landlord shall notify Tenant of
Landlord’s determination of such fair and reasonable annual market rental rate
for the demised premises. Within thirty (30) days after the later of (x) the
commencement of such six (6) month period, or (y) Tenant’s receipt of
Landlord’s determination of such fair and reasonable annual market rental rate,
Tenant shall respond to Landlord’s notice


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with Tenant’s determination of
the fair and reasonable annual market rental rate for the demised premises.
Upon receipt of such notice from Tenant, Landlord and Tenant shall seek to
agree as to the amount of such fair and reasonable annual market rental rate
for the demised premises. If they shall not agree as to such rate within thirty
(30) days after receipt of such notice from Tenant, then and in such event said
fair and reasonable annual market rental rate shall be determined by appraisal
as hereinafter in this Article provided.


                    (2)
If at the commencement date of the Extended Term, the amount of the fixed
annual rental rate payable during said term in accordance with the foregoing
paragraphs of this Article shall not have been determined, then, pending such
determination, Tenant shall pay fixed annual rent at a rate equal to 100% of
(x) the fixed annual rental rate payable hereunder as of the last month of the
Initial Term, plus (y) the sum of the operating expense and real estate tax
escalation additional rent payable under paragraphs B and C of Article 2
hereof, respectively, for the last twelve (12) months of the Initial Term (the
“Temporary Rate”). After the determination by appraisal or agreement, as the
case may be, of the fair and reasonable annual market rental rate for the
demised premises, if the fixed annual rental rate payable pursuant to this
Article is greater than the Temporary Rate, Tenant shall pay to Landlord, within
thirty (30) days after receipt of Landlord’s invoice, the difference between
the rent theretofore paid at the Temporary Rate and the greater rental rate
determined after the appraisal or agreement, as the case may be; and the
greater fixed annual rental rate so determined after the appraisal or
agreement, as the case may be, shall be payable during the Extended Term;
however, if the fixed annual rental rate payable pursuant to this Article is
less than the Temporary Rate, Landlord shall promptly pay to Tenant the
difference between the rent theretofore paid at the Temporary Rate and the
lesser rental rate determined after the appraisal or agreement, as the case may
be (or, at Landlord’s option, Tenant shall be entitled to a rent credit in such
amount, to be applied, until fully depleted, against the next rent due under
this lease); and the lesser fixed annual rental rate so determined after the
appraisal shall be payable during the Extended Term.


          (c)
Upon determination of the fixed annual rent for the Extended Term, Landlord and
Tenant shall execute, acknowledge and deliver to each other an agreement
specifying the amount of the fixed annual rental rate for the Extended Term
(but any failure to execute such an agreement shall not affect Tenant’s obligation
to pay and Landlord’s right to receive such fixed annual rent).


          (d)
Tenant shall not be in default beyond any grace period under any of the terms,
covenants and conditions of this lease at the time Tenant gives written notice
to Landlord of its election to extend the term of this lease.


          (e)
As provided in Article 32A(b), if Landlord and Tenant shall be unable to agree
as to the fair and reasonable annual market rental rate by the date hereinabove
set forth, then and in such event said fair and reasonable annual market rental
rent for the demised premises shall be determined by appraisal as follows:


                    (1)
Either party shall give a notice to the other, stating the name and address of
an impartial person to act as appraiser hereunder, and within thirty (30) days
after the


68





receipt of such notice, the
other party shall give notice to the sender of the first-mentioned notice,
likewise, stating the name and address of an impartial person to act as
appraiser hereunder.


                    (2)
The appraisers so specified in such notices shall be licensed real estate
brokers doing business in Manhattan, each having not less than fifteen (15)
years active experience as real estate brokers specializing in the leasing of office
space in said Borough.


                    (3)
In making their determinations, the appraisers shall consider and follow the
directions set forth in this Article.


                    (4)
Before proceeding to determine the fair and reasonable annual market rental
rate for the demised premises (the “rate”), as aforedescribed, the appraisers
so appointed shall subscribe and swear to an oath fairly and impartially to
determine such rate. If, within thirty (30) days following the appointment of
the latter of said appraisers, said two appraisers shall be unable to agree
upon the said rate, the said appraisers shall appoint, by an instrument in
writing, as third appraiser, an impartial person, similarly qualified, who,
within ten (10) days of such appointment, shall find as correct the rate that
was determined by either the appraiser specified by Landlord or the appraiser
specified by Tenant and render a written decision fixing such rate as the fair
and reasonable annual market rental rate for the demised premises, which
written decision shall be binding and conclusive on the parties. The third
appraiser may not select any rate other than the one specified by the appraiser
appointed by Landlord or the one specified by the appraiser appointed by
Tenant. The written decision of the first two appraisers so appointed fixing
such rate, or the written finding of such third appraiser fixing such rate, as
the case may be, shall be binding and conclusive on the parties.


                    (5)
If, after notice of the appointment of an appraiser, the other party shall
fail, within the above specified period of thirty (30) days, to appoint an
appraiser, such appointment of a similarly qualified appraiser may be made,
upon application without notice by the person who shall have been appointed an
appraiser, by the then President of the Real Estate Board of New York, Inc., or
such successor body hereafter constituted exercising similar functions (or if
there be no Real Estate Board or its successor, or if its President will not so
act, then such appointment shall be made by a Justice of the Supreme Court, New
York County, then presiding in Special Term, Part II thereof, or the equivalent
of said Part II). If the two appraisers aforesaid shall be unable to agree,
within thirty (30) days following the appointment of the latter of said
appraisers, upon such rate and shall fail to appoint in writing a third
appraiser within fifteen (15) days thereafter, the necessary appraiser shall be
appointed by said President (or by said Justice). If any appraiser appointed as
aforesaid by either of the parties, by said President, by said Justice, or by
the two appraisers so appointed, shall die, be disqualified or incapacitated or
shall fail or refuse to act, before such rate shall have been determined, the
necessary appraiser shall be promptly appointed by the person or persons who
appointed the appraiser who shall have died, become disqualified or
incapacitated, or who shall have failed or refused to act, as aforesaid.


          (6)
Landlord and Tenant shall each pay the fees of the person acting as appraiser
hereunder for Landlord and Tenant, respectively, and Landlord and Tenant shall
each pay one-half (1/2) of the fees of any third appraiser appointed pursuant
to the above provisions.


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          B.
The exercise of this Renewal Option by Tenant shall be conditioned upon the
occupancy of at least seventy-five percent (75%) of the then rentable square
foot area of the demised premises by Tenant and/or any Affiliate of Tenant or
Desk Space User.


33. RENT
CONTROL


          If
on the Commencement Date, or at any time during the term hereof, the fixed
annual rent or additional rent in this lease is not fully collectible by reason
of any Federal, State, County or City law, proclamation, order or regulation,
or direction of a public officer or body pursuant to law (collectively, “Rent
Control Law”), Tenant agrees to take such reasonable steps as Landlord may
reasonably request to permit Landlord to collect the maximum rents which may be
legally permissible from time to time during the continuance of such legal rent
restriction (but not in excess of the amounts reserved therefor under this
lease). Upon the termination of such legal rent restriction, Tenant shall pay
to Landlord, to the extent permitted by Rent Control Law, an amount equal to
(a) the fixed annual rent and additional rent which would have been payable
pursuant to this lease but for such legal rent restriction, less (b) the fixed
annual rent and additional rent paid by Tenant to Landlord during the period
such legal rent restriction was in effect.


34. SHORING


          Tenant
shall permit any person authorized to make an excavation on land adjacent to
the building containing the premises to do any work within the premises
necessary to preserve the wall of the building from injury or damage, and
Tenant shall have no claim against Landlord for damages or abatement of rent by
reason thereof.


35. EFFECT OF
CONVEYANCE; ETC.


          If
the building containing the premises shall be sold, transferred or leased, or
the lease thereof transferred or sold, Landlord shall be relieved of all future
obligations and liabilities hereunder thereafter accruing and the purchaser,
transferee or tenant of the building shall be deemed to have assumed and agreed
to perform all such obligations and liabilities of Landlord hereunder
thereafter accruing.


36. RIGHTS OF
SUCCESSORS AND ASSIGNS


          This
lease shall bind and inure to the benefit of the heirs, executors,
administrators, successors, and, except as otherwise provided herein, the
assigns of the parties hereto. If any provision of any Article of this lease or
the application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of that Article, or the application of
such provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby, and each
provision of said Article and of this lease shall be valid and be enforced to
the fullest extent permitted by law.


37. CAPTIONS


          The
captions herein are inserted only for convenience, and are in no way to be
construed as a part of this lease or as a limitation of the scope of any
provision of this lease.


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38. LEASE
SUBMISSION


          A.
Landlord and Tenant agree that this lease is submitted to Tenant on the
understanding that it shall not be considered an offer and shall not bind
Landlord or Tenant in any way unless and until (i) Tenant has duly executed and
delivered duplicate originals thereof to Landlord and (ii) Landlord has
executed and delivered one of said originals to Tenant.


          B.
(i) If Tenant is a corporation, partnership, limited liability company or other
form of organization or association, each individual executing this lease on
behalf of Tenant hereby agrees that by executing this lease such individual
represents and warrants to Landlord that Tenant is a duly formed and validly
existing entity and that Tenant has full right and authority to execute and
deliver this lease and that each person signing on behalf of Tenant is
authorized to do so.


                    (ii)
If Landlord is a corporation, partnership, limited liability company or other
form of organization or association, each individual executing this lease on
behalf of Landlord hereby agrees that by executing this lease such individual
represents and warrants to Tenant that Landlord is a duly formed and validly
existing entity and that Landlord has full right and authority to execute and
deliver this lease and that each person signing on behalf of Landlord is
authorized to do so.


39. ELEVATORS
AND LOADING


          A.
Tenant acknowledges it has been advised that the freight elevators servicing
the building can be used from 8:00 A.M. to 6:00 P.M. on Business Days for
construction and other purposes which will not unreasonably interfere with use
of the freight elevator by or on behalf of Landlord and the other tenants of
the building. Any use of freight elevator service on other days and times shall
be on a first-come, “as available” basis and shall be scheduled and reserved in
advance with Landlord, and (except as provided in Article 23C(vi) hereof)
Tenant shall pay Landlord’s customary building standard charge therefor (which,
as of the date of this lease, is $150.00 per hour for loading dock security and
elevator operator, with a four (4) hours minimum). Landlord agrees that
Landlord’s customary building standard charge for operating the freight
elevators on an after-hours basis shall only be increased by the amount of any
actual increase in the cost to Landlord of providing such service. There shall
be no major loading or unloading in the building between 8:00 A.M. and 6:00
P.M. on Business Days.


          B.
It is the intention of Landlord to maintain in the building, operatorless
automatic control elevators. However, Landlord may, at its option, maintain in
the building either manually operated elevators or operatorless automatic
control elevators or part one and part the other, and Landlord shall have the
right from time to time during said term, to change, in whole or in part, from
one to the other without notice to Tenant and without in any way constituting
an eviction of Tenant or affecting the obligations of Tenant hereunder or
incurring any liability to Tenant hereunder.


40. BROKERAGE


          A.
Tenant represents and warrants that it neither consulted nor negotiated with
any broker or finder with regard to the demised premises other than CB Richard
Ellis, Inc. and


71






Colliers ABR, Inc. (the “Brokers”). Tenant agrees to indemnify, defend
and save Landlord harmless from and against any claims for fees or commissions
from anyone other than the Brokers with whom Tenant has dealt in connection
with the demised premises or this lease.


          B. Landlord
represents and warrants that it neither consulted nor negotiated with any
broker or finder with regard to the demised premises other than the Brokers.
Landlord agrees to indemnify, defend and save Tenant harmless from and against
any claims for fees or commissions from anyone other than the Brokers with whom
Landlord has dealt in connection with the demised premises or this lease.
Landlord agrees to pay any commission or fee owing to CB Richard Ellis, Inc.
and Colliers ABR, Inc. pursuant to separate agreements with them. Nothing in
this Article 40 shall be construed to be a third party beneficiary contract.


41. ARBITRATION


          In each
case specified in this lease in which resort to expedited arbitration or
arbitration shall be required or may be elected by a party, such arbitration
(unless otherwise specifically provided in other provisions of this lease)
shall be in Manhattan in accordance with the Expedited Procedures of the
Arbitration Rules of the Real Estate Industry American Arbitration Association
and the provisions of this lease, and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. Except as
specifically set forth in this lease, there shall be no right to arbitrate any
dispute arising out of this lease and any other action or proceeding shall be
adjudicated in the state or federal courts sitting in New York County, New
York.


42. INSURANCE


          The
following requirements (collectively, the “Insurance Requirements”) shall be
complied with by Tenant at all times during the term hereof:


          A. At all times during the term hereof, Tenant
shall maintain, at Tenant’s expense, the following insurance coverage:


                    (i) all risk property insurance, including
theft and, if applicable, boiler and machinery coverage, written at replacement
cost value in an adequate amount to avoid coinsurance and a replacement cost
endorsement insuring Tenant’s trade fixtures, furnishings, equipment and all items
of personal property of Tenant and including property of Tenant’s customers or
clients, as the case may be, located in the demised premises;


                    (ii) broad form commercial general liability
insurance written on a per occurrence basis with a per occurrence limit of not
less than $5,000,000 and with other limits reasonably satisfactory to Landlord;


                    (iii) worker’s compensation insurance and
employer’s liability coverage in statutory limits, and New York State disability
insurance as required by law, covering all employees; and


                    (iv) such other coverage as Landlord may
reasonably require with respect to the demised premises, its use and occupancy
and the conduct or operation of business therein.


72





                    Landlord
may, from time to time, but not more frequently than once every year, adjust
the minimum limits set forth above, provided such limits shall not exceed the
limits then typically being required by other landlords of first class office
buildings in Manhattan.


          B. All
insurance policies to be maintained as set forth above (i) shall be issued by
companies of recognized responsibility, authorized to do business in the State
of New York, reasonably acceptable to Landlord, and maintaining a rating of
A-/VIII or better in Best’s Insurance Reports-Property-Casualty (or an
equivalent rating in any successor index adopted by Best’s or its successor),
(ii) shall provide that the insurer will endeavor to send Landlord and all
additional insureds and loss payees thereunder at least thirty (30) days’ prior
written notice of any cancellation or modification of such policies, (iii)
shall name, as additional insureds, Landlord, the managing agent of the
building and the holders of any Superior Interests whose name and address shall
have been furnished to Tenant and (iv) shall be primary and non-contributory in
all respects. All policies providing fire and extended coverage property
insurance coverage pursuant to paragraph A(i) shall name Landlord as loss payee
with respect to improvements and alterations (except if this lease is cancelled
due to a casualty), and shall name Tenant as loss payee with respect to
Tenant’s property.


          C. Prior to
the Commencement Date, Tenant shall deliver to Landlord binding certificates of
insurance for the insurance coverage required by paragraph A and, if required
by Landlord, copies of the endorsements to such policies designating such
persons or parties as additional insureds, providing for commercially
reasonable deductibles. Tenant shall procure and pay for renewals of such
insurance from time to time before the expiration thereof, and Tenant shall
deliver to Landlord certificates of renewal at least five (5) days before the
expiration of any existing policy. If Tenant fails to procure or maintain any
insurance required by this lease and to pay all premiums and charges therefor,
Landlord may (but shall not be obligated to) procure and pay the same, provided
Landlord shall have given Tenant at least ten (10) days’ prior notice thereof,
and Tenant shall reimburse Landlord, within thirty (30) days after demand, for
all such sums paid by Landlord. Any such payment shall not cure or waive any
default by Tenant in the performance of its obligations hereunder, nor shall
the foregoing right of Landlord to make such payment in any way limit, reduce,
diminish or impair the rights of Landlord under the terms of this lease or at
law or in equity arising as a result of any such default. Under no
circumstances shall Landlord be obligated to advise Tenant of Tenant’s failure
to procure or maintain any insurance required hereunder.


          D. Tenant
shall not carry separate or additional insurance, concurrent in form or
contributing in the event of any loss or damage with any insurance required to
be obtained by Tenant under this lease unless the parties required by paragraph
B above to be named as additional insureds or loss payees thereunder are so
named. Tenant may carry any insurance coverage required of it hereunder
pursuant to blanket policies of insurance so long as the coverage afforded
Landlord and the other additional insureds or loss payees thereunder, as the
case may be, shall not be less than the coverage that would be provided by
direct policies.


          E. (i)
Landlord agrees that it will include in its fire insurance policies appropriate
clauses pursuant to which the insurance companies (a) waive all right of
subrogation against Tenant with respect to losses payable under such policies
and/or (b) agree that such


73





policies shall not be invalidated should the insured waive in writing
prior to a loss any or all right of recovery against any party for losses
covered by such policies.


                    (ii)
Tenant agrees to include in its fire insurance policy or policies on its
furniture, furnishings, fixtures and other property removable by Tenant under
the provisions of its lease of space in the building appropriate clauses
pursuant to which the insurance company or companies (a) waive the right of subrogation
against Landlord and/or any tenant of space in the building with respect to
losses payable under such policy or policies and/or (b) agree that such policy
or policies shall not be invalidated should the insured waive in writing prior
to a loss any or all right of recovery against any party for losses covered by
such policy or policies.


                    (iii)
Landlord hereby waives any and all right of recovery which it might otherwise
have against Tenant, its servants, agents and employees, for loss or damage
occurring to the building and the fixtures, appurtenances and equipment
therein, to the extent the same is covered by Landlord’s insurance,
notwithstanding that such loss or damage may result from the negligence or
fault of Tenant, its servants, agents or employees. Tenant hereby waives any
and all right of recovery which it might otherwise have against Landlord, its
servants, and employees, and against every other tenant in the building who
shall have executed a similar waiver as set forth in this subparagraph E(iii)
for loss or damage to, Tenant’s furniture, furnishings, fixtures and other
property removable by Tenant under the provisions hereof to the extent that
same is covered by Tenant’s insurance, notwithstanding that such loss or damage
may result from the negligence or fault of Landlord, its servants, agents or
employees, or such other tenant and the servants, agents or employees thereof.


                    (iv)
Landlord and Tenant hereby agree to advise the other promptly if the clauses to
be included in their respective insurance policies pursuant to subparagraphs
E(i) and E(ii) above cannot be obtained. Landlord and Tenant hereby also agree
to notify the other promptly of any cancellation or change of the terms of any
such policy which would affect such clauses.


          F. Landlord
shall maintain throughout the term of this lease standard all risk property
insurance for the building in an amount equal to its full replacement value,
and comprehensive general liability insurance coverage with respect to all
claims for personal injury, death or property damage occurring in, upon,
adjacent to or connected to the building or any part thereof, with commercially
reasonable limits of coverage and commercially reasonable deductibles.


43. EXPANSION OPTION; RIGHT OF FIRST OFFER


          A. Expansion
Option. If, at any time prior to the first anniversary of the Commencement
Date, Landlord desires to lease any space on the 13th, 16th,
17th, 18th or 19th floor of the building which contains
at least 7,500 rentable square feet and is then or, within six (6) months
following the date Landlord’s OS Availability Notice (as hereinafter defined)
is given, will be vacant and available for leasing by Landlord (i.e.,
subject only to the option of another tenant granted prior to the Effective
Date), then Landlord shall notify Tenant of such fact, which notice
(“Landlord’s OS Availability Notice”) shall include a description of the
layout, configuration and rentable square foot area of such space (an “Option
Space”), and the date


74





Landlord reasonably anticipates the term of the leasing of such space
shall commence (the “Anticipated Commencement Date”). If and so long as Tenant
is not in default under this lease beyond any applicable notice and/or grace period,
Tenant shall have the one-time option (with respect to such space) to add all
but not part of such space to the demised premises, subject to the following
terms and conditions:


                    (i)
Tenant shall give Landlord written notice of its election so to add all but not
part of an Option Space to the demised premises, which notice shall be given no
later than thirty (30) days after the date Landlord’s OS Availability Notice is
given. Time shall be of the essence in connection with the exercise by Tenant
of any option hereunder.


                    (ii)
The term of the leasing of such Option Space shall commence on the OS
Commencement Date (as hereinafter defined), and shall end on the expiration or
sooner termination date of the initial term of this lease, or, if the Tenant
exercises its renewal option as in Article 32 provided, the expiration or
sooner termination date of the Extended Term. The term “OS Commencement Date”
when used herein shall mean the thirty-first (31st) day after the
date when Landlord delivers vacant possession of an Option Space to Tenant
(free of any occupancies or tenancies) with Landlord’s OS Work (as hereinafter
defined) therein substantially completed. Landlord shall give Tenant fifteen
(15) days’ prior written notice of the date Landlord will substantially
complete Landlord’s OS Work. Landlord’s OS Work shall be deemed to have been
substantially completed in an Option Space despite the fact that minor
insubstantial details of construction and mechanical adjustments (i.e.,
“punch list items”) remain to be completed, provided the Option Space is
accessible and reasonably usable by Tenant for the purpose of effecting
Tenant’s OS Initial Installation Work (as hereinafter defined) therein; and
provided, further, that the building systems through which the services which
are required to be provided by Landlord hereunder (including, without
limitation, the Building Chilled and Warm Water Equipment and the chilled and
warm water service provided thereby) are available in the Option Space (or in
locations outside of the demised premises, if so provided hereunder), so that,
upon completion of Tenant’s OS Initial Installation Work, such services can be
provided by Landlord as required hereunder. Landlord shall nevertheless complete
such punch list items within thirty (30) days of the OS Commencement Date (and
Tenant shall provide Landlord and its contractors with such access to the
demised as is reasonably necessary to do so, using reasonable diligence and
without the necessity of incurring overtime or premium labor charges, provided
Landlord uses commercially reasonable efforts to minimize any interference with
Tenant’s OS Initial Installation Work). Landlord shall, in accordance with the
foregoing, fix the OS Commencement Date and notify Tenant of the date so fixed.
When the OS Commencement Date has so been determined, the parties hereto shall,
within thirty (30) days thereafter, at Landlord’s request, execute a written
agreement confirming such date as the OS Commencement Date. Any failure of the
parties to execute such written agreement shall not affect the validity of the
OS Commencement Date as fixed and determined by Landlord, as aforesaid. Any
dispute regarding the occurrence of an OS Commencement Date shall be resolved
by arbitration in accordance with the provisions of Article 41 of this lease.
Tenant by entering into occupancy of an Option Space shall be conclusively
deemed to have agreed that Landlord up to the time of such occupancy had
substantially completed Landlord’s OS Work, unless within twenty (20) days
after such date Tenant shall give written notice (hereinafter called the “OS
Punch List Notice”) to Landlord specifying the respects in which the same were
not in satisfactory condition, in which event the Option Space shall be
conclusively deemed to be in satisfactory


75





condition except for the items set forth in the OS Punch List Notice.
The giving of the OS Punch List Notice shall have no effect whatsoever upon the
OS Commencement Date.


                    (iii)
Commencing on the date which is ten (10) months after the OS Commencement Date
(the “OS Rent Commencement Date”), Tenant shall pay Landlord fixed annual rent
for an Option Space at the following rates: $52 per rentable square foot per
annum from the OS Rent Commencement Date through the last day of the fifth
Lease Year; $56 per rentable square foot per annum from the first day of the
sixth Lease Year through the last day of the tenth Lease Year; and $60 per
rentable square foot per annum from the first day of the eleventh Lease Year
through the last day of the fifteenth Lease Year.


                    (iv)
Tenant agrees to accept an Option Space in its then “as is” condition, except
that Landlord shall perform the work set forth in Article 23B of this lease (i.e.,
“Landlord’s Work”) in such Option Space in accordance with the provisions of
said Article 23B (“Landlord’s OS Work”) (taking into account, however, the fact
that an Option Space may not be a full floor and, therefore, (a) Landlord shall
perform, at its own expense, such other work as may be legally necessary or
appropriate in first class office buildings in Midtown Manhattan to lease a
partial floor, such as installing any necessary common corridor, and (b)
Landlord shall not perform such Landlord’s Work that is appropriate for a full
floor tenant in a first class office building in Midtown Manhattan, but shall
perform such Landlord’s Work that is appropriate for a partial floor tenant in
such a building). Tenant shall effect all other work necessary for Tenant to
conduct its business in the Option Space and to make such space suitable and
ready for Tenant’s occupancy and use (“Tenant’s OS Initial Installation Work”).
Tenant shall effect such work in accordance with the provisions of Article 23
of this lease which are applicable to the performance of Tenant’s Initial
Installation Work. Tenant shall also be entitled to a contribution (“Landlord’s
OS Contribution”) from Landlord toward the cost of Tenant’s OS Initial
Installation Work, which shall be disbursed to Tenant in accordance with the
provisions of Article 23C(iii) of this lease (all of which provisions shall
apply to Landlord’s OS Contribution as if it were Landlord’s Contribution),
except that the amount of Landlord’s OS Contribution shall be an amount equal
to the unamortized portion of $50 per rentable square foot included in the
Option Space, which unamortized portion shall be calculated based on a
fraction, the numerator of which shall be the number of calendar months
remaining in the term of this lease after the OS Commencement Date, and the
denominator of which shall be 180 (and the reference to “$899,745.00” in said
Article 23C(iii) shall be deemed changed to an amount equal to “fifteen percent
(15%) of the amount of Landlord’s OS Contribution”, as determined hereunder);
provided, however, (1) that if the Option Space consists of the entire rentable
area of a floor, then the amount of Landlord’s OS contribution shall be
increased by an amount equal to $254,000.00, and Tenant shall be required to
renovate and refurbish the core men’s and women’s bathrooms in said Option
Space (as provided in Article 23C(viii) above); (2) that if the Option Space
consists of less than a full floor, then Landlord shall, within ten (10) months
after the date Tenant exercises its option hereunder with respect to such
Option Space, perform all work which is necessary to upgrade the core men’s and
women’s bathrooms on such floor in accordance with the specifications for
upgrading such core bathrooms in the building which are part of the Building
Improvement Program (if and to the extent such core bathrooms have not already
been so upgraded pursuant to such Building Improvement Program); and (3) that
if the sum of (x) the age of any building air conditioning unit in such Option
Space, plus (y) the number of full


76





calendar years then remaining in the term of this lease, is more than
twenty (20) years, then the amount of Landlord’s OS Contribution shall be
increased by $4,500 per ton of cooling capacity for each such air conditioning
unit (assuming one (1) ton of cooling capacity for every 430 rentable square
feet included in the Option Space), and Tenant shall be required to replace
such unit or units, as the case may be (as provided in Article 23C(vii) above)
(except that if any such unit services such Option Space as well as other
adjacent space which is not included in such Option Space, then Landlord shall
promptly replace such unit with a new building standard air conditioning unit,
which shall be of equal or better quality to the Petra Engineering Industries
Co., Model PAHHC62C2).


                    (v)
Tenant shall pay Landlord operating expense escalation additional rent for an
Option Space, in accordance with Article 2B of this lease, except that “The
Percentage” shall be calculated based on a fraction, the numerator of which
shall be the rentable square foot area of the Option Space, and the denominator
of which shall be 2,720,595.


                    (vi)
Tenant shall pay Landlord real estate tax escalation additional rent for an
Option Space, in accordance with Article 2C of this lease, except that “The
Percentage” shall be calculated based on a fraction, the numerator of which
shall be the rentable square foot area of the Option Space, and the denominator
of which shall be 2,720,595.


                    (vii)
Tenant shall purchase electricity from Landlord for an Option Space on a
submetering basis, in accordance with the provisions of Article 3 of this
lease, and Landlord, as part of Landlord’s OS Work, shall install a meter or
meters and any and all wiring and other equipment which is proper and necessary
to furnish redistributed electricity to the Option Space on a submetering
basis.


                    (viii)
Except as herein set forth, an Option Space shall be added to the demised
premises pursuant to all of the applicable terms, covenants and conditions of
this lease.


                    (ix)
If Tenant duly and timely exercises such option with respect to an Option
Space, then Landlord and Tenant shall promptly enter into an amendment of this
lease confirming the inclusion of such Option Space in the demised premises
pursuant to the terms and conditions of this Article. In all other respects,
the terms and conditions contained in this lease shall remain unmodified. Any
such amendment of this lease shall be in a form reasonably acceptable to
Landlord and Tenant. In the event that Tenant fails to exercise its option as
aforesaid within such thirty (30) day period, then Tenant shall be deemed to
have waived its rights under this Article with respect to the leasing of such
Option Space.


          B. Right
of First Offer. If, at any time during the initial term of this lease after
the first anniversary of the Commencement Date (and not during the Extended
Term), Landlord desires to lease any space on the 13th, 16th,
17th, 18th or 19th floor of the building which contains
at least 7,500 rentable square feet and is then or, within six (6) months
following the date Landlord’s RS Availability Notice (as hereinafter defined)
is given, will be vacant and available for leasing by Landlord (i.e.,
subject only to the option of another tenant granted prior to the Effective
Date), then Landlord shall notify Tenant of such fact, which notice
(“Landlord’s RS Availability Notice”) shall include (i) a description of the
layout, configuration and rentable


77





square foot area of such space (a “ROFO Space”), (ii) Landlord’s
determination of the fair and reasonable annual market rental rate for the ROFO
Space (the “Fair Offer Rental”), which shall constitute the maximum amount
thereof that Landlord may claim as the Fair Offer Rental for such ROFO Space in
any arbitration thereof, and (iii) the Anticipated Commencement Date, the rent
commencement date, and the condition in which Landlord is willing to lease such
space, including, without limitation, any base building work which Landlord is
willing to perform and/or work allowance or contribution which Landlord is
willing to make towards the cost of Tenant’s initial installation in such space.
The term of the leasing of any ROFO Space shall be co-terminous with the
scheduled expiration date of the term of this lease; except, however, that such
term must be for a minimum of five (5) years, so that if the Anticipated
Commencement Date, as hereinafter defined, occurs less than five (5) years
prior to the last day of the 15th Lease Year, then Tenant may not
exercise its within option to lease such ROFO Space unless it simultaneously
exercises its Renewal Option pursuant to Article 32 of this lease (in which
case the term of the leasing of such ROFO Space, as well as any other ROFO
Space thereafter leased by Tenant hereunder, shall expire on the last day of
the twentieth (20th) Lease Year). If and so long as Tenant is not in
default under this lease beyond any applicable notice and/or grace period,
Tenant shall have the one-time option (with respect to each such ROFO Space),
exercisable by notice to Landlord (an “Acceptance Notice”) given within thirty
(30) days after the date Landlord’s RS Availability Notice is given (time being
of the essence), to add to the demised premises all but not part of any such
ROFO Space. Tenant shall notify Landlord in the Acceptance Notice whether
Tenant accepts or disputes Landlord’s Maximum Offer Determination, and if
Tenant disputes Landlord’s Maximum Offer Determination, the Acceptance Notice
shall set forth Tenant’s good faith determination of the Fair Offer Rental for
such ROFO Space, which shall constitute the minimum that Tenant can claim as
the Fair Offer Rental for such ROFO Space in any arbitration thereof (“Tenant’s
Minimum Offer Determination”). If Tenant fails to object to Landlord’s Maximum
Offer Determination in the Acceptance Notice and to set forth therein Tenant’s
Minimum Offer Determination, then Tenant shall be deemed to have accepted
Landlord’s Maximum Offer Determination as the Fair Offer Rental for such ROFO
Space and Landlord and Tenant shall promptly enter into an amendment of this
lease confirming (a) the inclusion of the ROFO Space in the demised premises,
(b) the term of the leasing of such ROFO Space (including, without limitation,
the commencement date and the rent commencement date), (c) the fixed annual
rents and additional rents payable for such ROFO Space, (d) the condition in
which such space is being leased, including without limitation, the base
building work which Landlord will perform (if any), and the work allowance or
contribution which Landlord will make towards the cost of Tenant’s initial
installation in such space (if any), all as set forth in Landlord’s RS
Availability Notice, and (e) that the ROFO Space shall otherwise be leased to
Tenant pursuant to all of the terms, covenants and conditions of this lease,
including, without limitation, the provisions of Article 2 regarding real
estate tax escalation additional rent and operating expense escalation
additional rent (except that (x) the base tax year for the ROFO Space shall be
the New York City real estate tax year during which the commencement date of
the term of the leasing of the ROFO Space occurs, (y) the Base Year for the
ROFO Space shall be the calendar year during which the commencement date of the
term of the leasing of the ROFO Space occurs, and (y) “The Percentage” for the
ROFO Space shall be determined in the same manner “The Percentage” was
determined for the original demised premises hereunder, i.e., by a fraction,
the numerator of which is the rentable square foot area of the ROFO Space, and
the denominator of which is 2,720,595), and the provisions of Article 3


78





regarding electricity. In all other respects, the terms and conditions
contained in this lease shall remain unmodified. Any such amendment of this
lease shall be in a form reasonably acceptable to Landlord and Tenant. Any
failure of the parties to execute any such amendment shall not affect Tenant’s
or Landlord’s obligation to lease such space on the terms elected. In the event
that Tenant (1) gives Landlord an Acceptance Notice within such thirty (30) day
period, (2) objects to Landlord’s Maximum Offer Determination in the Acceptance
Notice and (3) sets forth therein Tenant’s Minimum Offer Determination, then
the Fair Offer Rental for such ROFO Space shall be determined by appraisal
pursuant to the provisions of clauses (1) through (6) of Article 32A(e) hereof,
except that the appraisers shall determine the Fair Offer Rental for such ROFO
Space and not for the demised premises (and upon such determination of the Fair
Offer Rental by appraisal for such ROFO Space, the parties shall promptly enter
into an amendment of this lease, as aforedescribed, except that the Fair Offer
Rental shall be as determined in such appraisal). In the event of any such
appraisal, Tenant shall pay Landlord fixed annual rent based on Landlord’s
Maximum Offer Determination for the period, if any, from the commencement date
of the term of the leasing of such ROFO Space, until such appraisal has been
completed, whereupon Landlord shall promptly refund to Tenant the amount, if
any, by which Landlord’s Maximum Offer Determination exceeds the Fair Offer
Rental determined by such appraisal. In the event that Tenant fails to give
Landlord an Acceptance Notice within such thirty (30) day period, Tenant shall
be deemed to have waived its right under this Article with respect to the
leasing of such ROFO Space. Landlord may not give Tenant a Landlord’s RS
Availability Notice more than six (6) months before the date that space will be
available to lease to Tenant.


          C.
Notwithstanding anything contained herein to the contrary, with respect to any
space which is vacant and available for leasing as of the Effective Date, the
provisions of this Article 43 with respect to the leasing of Option Space
and/or ROFO Space by Tenant shall not be applicable to such space until after
the initial leasing of such space by Landlord after the Effective Date.


          D. If, for
any reason beyond its control, Landlord is unable to make available to Tenant
timely possession of any Option Space or ROFO Space, as the case may be, in
accordance with the election of Tenant hereunder, then Landlord shall not be
subject to any liability by reason of such delay, the within lease shall not be
affected by such delay, but Landlord shall diligently and in good faith seek to
fulfill its obligations with respect to such space, including, without
limitation, the commencement and diligent prosecution of a summary holdover
dispossess proceeding against any tenant holding over in such space.
Notwithstanding the foregoing, if Landlord is unable to make possession of any
Option Space or ROFO Space, as the case may be, available to Tenant within one
hundred eighty (180) days after the Anticipated Commencement Date for such
space, then, at Tenant’s election, to be made by written notice given by Tenant
to Landlord within thirty (30) days after the end of such one hundred eighty
(180) day period (time being of the essence), the exercise by Tenant of its
option or right to lease such Option Space or ROFO Space (as the case may be)
hereunder shall be deemed null and void and of no force and effect, and neither
party shall have any further obligation or liability to the other under this
Article with respect to the leasing of such space; provided, however, that if
Tenant does not make such election within such thirty (30) day period and
Landlord is still unable to make possession of any Option Space or ROFO Space,
as the case may be, available to Tenant within two hundred seventy (270) days
after the Anticipated Commencement Date for


79





such space, then, at Tenant’s election, to be made by written notice
given by Tenant to Landlord within thirty (30) days after the end of such two
hundred seventy (270) day period (time being of the essence), the exercise by
Tenant of its option or right to lease such Option Space or ROFO Space (as the
case may be) hereunder shall be deemed null and void and of no force and
effect, and neither party shall have any further obligation or liability to the
other under this Article with respect to the leasing of such space.


          E. The
foregoing provisions are intended to reflect the intention of the parties that
this Tenant shall have no other rights with respect to Landlord’s renting of
the above described space or any other space in the building, except to the
extent specifically set forth above.


          F. Attached
hereto and made a part hereof as Exhibit G are space diagrams showing the 13th,
16th, 17th, 18th and 19th floors of
the building, including the rentable square foot area of each such floor, and
the scheduled expiration dates of the leases currently covering space on each
such floor. Landlord agrees to measure any Option Space or ROFO Space which is
less than a full floor for purposes hereof using the same method as was used by
Landlord to measure the rentable square foot area of the demised premises and
each such floor included in said Exhibit G.


          G. The
exercise by Tenant of its rights under this Article shall be conditioned upon
the occupancy of at least eighty-five percent (85%) of the then rentable square
foot area of the demised premises by Tenant and/or any Affiliate of Tenant or
Desk Space User.


44. LATE CHARGES


          If Tenant
shall fail to pay all or any part of any installment of fixed annual rent or
additional rent for more than five (5) days after the same shall have become
due and payable, and Landlord shall thereafter notify Tenant of such failure,
then Tenant shall pay Landlord, within five (5) days after demand, as
additional rent hereunder, a late charge of (i) three ($.03) cents for each
dollar of the amount of such fixed annual rent or additional rent which shall
not have been paid to Landlord within such five (5) days after becoming due and
payable or (ii) interest on such sum from the date when first due at the
average of all prime rates published from time to time in The Wall Street Journal
(Eastern Edition) plus three percent (3%), whichever is greater; provided,
however, that Landlord shall not be required to so notify Tenant more than
twice in any twelve (12) month period during the term of this lease (so that
after such second notice such late charge will be due with respect to any
subsequent payment by Tenant which is more than five (5) days late, during such
Lease Year, without any further notice from Landlord). Tenant acknowledges that
the payment of rent after the date when first due shall result in loss and
injury to Landlord the exact amount of which is not susceptible of reasonable
calculation and that the aforesaid amount of late charge represents a
reasonable estimate of such losses and injury under the circumstances,
especially after taking into account the grace period hereby afforded Tenant
before such late charge is to be imposed. The late charge payable pursuant to
this Article 44 shall be without prejudice to any of Landlord’s rights and
remedies hereunder at law and equity for non-payment or late payment of rent or
other sums and in addition to any such rights and remedies, including the right
to institute and prosecute a proceeding under Article 7 of the Real Property
Actions and Proceedings Law. No failure by Landlord to insist upon the strict
performance by Tenant of Tenant’s obligation to pay late charges as provided in
this Article shall constitute a waiver by Landlord of its right to enforce the
provisions of this Article in any


80





instance thereafter occurring. The provisions of this Article shall not
be construed in any way to extend the grace periods or notice periods provided
for elsewhere in this lease.


45. ENVIRONMENTAL COMPLIANCE


          A. (i)
Tenant shall comply with all federal, state and local environmental protection
and regulatory laws (“Environmental Laws”) applicable to the demised premises.
Landlord shall comply with all Environmental Laws applicable to the building.


                    (ii)
Tenant shall not use, generate, manufacture, store or dispose of any hazardous
substance on, under or about the demised premises or the building nor transport
any hazardous substance thereto, in violation of any applicable Environmental
Laws. Tenant shall immediately advise the Landlord, in writing of any and all
enforcement, clean-up, remediation, removal or other governmental or regulatory
actions instituted, completed or threatened pursuant to any applicable laws
relating to any hazardous substances; and all claims made or threatened by any
person (including a governmental authority) against the demised premises,
Tenant or Landlord relating to any damage, injury, costs, remedial action or
cost recovery compensation arising out of or due to the existence of any
hazardous substance in or about the demised premises or the building.


          B. (i)
Tenant shall defend, indemnify and hold Landlord harmless from and against all
actions, causes of action, claims, lawsuits, administrative proceedings,
hearings, judgments, awards, fines, penalties, costs (including legal,
engineers’, experts’, investigatory and consulting fees), damages, remediation
activities and clean-up costs, liens, and all other liabilities incurred by
Landlord whenever incurred, arising out of any Tenant’s act or failure to act
(where there is a duty to do so) resulting in (a) the existence or presence (or
alleged existence or presence) on or about the building of any hazardous
substance or the release of any hazardous substance into the environment, in
violation of any applicable Environmental Laws; (b) any personal injury or
property damage resulting from any hazardous substance in or about the
building; (c) the violation of any Environmental Laws; or (d) the commencement
or prosecution by any governmental authority or private person or entity of any
judicial or administrative procedure arising out of any Environmental Laws or
common law cause of action in which Landlord is named a party or in which it
may intervene. The obligations of Tenant under this subparagraph B(i) shall
survive the expiration or earlier termination of the term hereof.


                    (ii)
Landlord shall defend, indemnify and hold Tenant harmless from and against all
actions, causes of action, claims, lawsuits, administrative proceedings,
hearings, judgments, awards, fines, penalties, costs (including reasonable
legal, engineers’, experts’, investigatory and consulting fees), damages,
remediation activities and clean-up costs, liens, and all other liabilities
incurred by Tenant whenever incurred, arising out of any Landlord’s act or
failure to act resulting in (a) the existence or presence (or alleged existence
or presence) on or about the building of any hazardous substance or the release
of any hazardous substance into the environment, in violation of any applicable
Environmental Laws; (b) any personal injury or property damage resulting from
any hazardous substance in or about the building; (c) the violation of any
Environmental Laws; or (d) the commencement or prosecution by any governmental
authority or private person or entity of any judicial or administrative
procedure arising out of any claims under any federal, state or municipal
environmental protection or


81





regulatory law or common law cause of action in which Landlord is named
a party or in which it may intervene. The obligations of Landlord under this
subparagraph B(ii) shall survive the expiration or earlier termination of the
term hereof.


          C.
“Hazardous substance” means any hazardous substance as defined in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
42 U.S.C. §§ 9601 et seq., as amended by the Superfund Amendments and
Reauthorization Act of 1986; hazardous waste as defined in the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901 et seq., as any of the
foregoing may be amended or superseded; oil; petroleum product, derivative,
compound or mixture; mineral, including asbestos; chemical; gas; medical waste;
polychlorinated biphenyls (pcb’s); methane; radon; radioactive material;
volatile hydrocarbons; or other material, whether naturally occurring, man-made
or the by-product of any process, which is toxic, harmful or hazardous or
acutely hazardous to the environment or public health or safety; or any other
substance the existence of which on or at any property would be the basis for a
claim for damages, clean-up costs or remediation costs, fine, penalty or lien
under any Environmental Laws or applicable common law.


46. LEASE FULLY NEGOTIATED


          In
construing this lease, it shall be deemed to be a document fully negotiated and
drafted jointly by counsel to Landlord and counsel to Tenant and the authorship
of any term or provision hereof shall not be deemed germane to its meaning. The
existence or non-existence in any prior draft hereof of any term or provision
whether included herein or not shall not be relevant to the establishment of
the intent of the parties hereto or the meaning of any term or provision hereof
and may not be used as evidence to establish any such intent or meaning.


47. SMOKING RESTRICTIONS


          Landlord
reserves and shall have the right to restrict to certain designated areas
within the premises or to prohibit altogether smoking of cigarettes, cigars,
other tobacco products or any other substances and the use of pipes and other
paraphernalia for such purposes. Without limiting Landlord’s rights under the
preceding sentence, Tenant shall enforce within the demised premises the
provisions of Local Law 5 of 1995.


48. ANTI-TERRORISM REQUIREMENTS


          Tenant
represents and warrants that (i) neither Tenant nor any person, group or entity
who owns any direct or indirect beneficial interest in Tenant or any of them,
is listed on the list maintained by the United States Department of the
Treasury, Office of Foreign Assets Control (commonly known as the OFAC List) or
otherwise qualifies as a terrorist, Specially Designated National and Blocked
Person or a person with whom business by a United States citizen or resident is
prohibited (each a “Prohibited Person”); (ii) neither Tenant nor any person,
group or entity who owns any direct or indirect beneficial interest in Tenant
or any of them is in violation of any to anti-money laundering or
anti-terrorism statute, including, without limitation, the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, U.S. Public Law 107-56 (commonly known as the USA
PATRIOT Act), and the related regulations issued thereunder, including
temporary regulations,


82






and Executive Orders (including, without limitation, Executive Order
13224) issued in connection therewith, all as amended from time to time; and
(iii) neither Tenant nor any person, group or entity who owns any direct or
indirect interest in Tenant is acting on behalf of a Prohibited Person. Tenant
shall indemnify and hold Landlord harmless from and against all claims,
damages, losses, risks, liabilities and costs (including fines, penalties and
reasonable legal costs) arising from any misrepresentation in this paragraph or
Landlord’s reliance thereon. Tenant’s obligations under this paragraph shall
survive the expiration or sooner termination of the term of this lease.


	
  

 	
  

 
	
 49. CONDOMINIUM PROVISIONS

 


          A. Landlord
reserves (and Tenant acknowledges that Landlord has) the right to convert (or
join or acquiesce in the conversion of) the building or building project to
condominium form of ownership (a “Conversion”) of which the demised premises
may, in the sponsor and Landlord’s sole discretion, constitute all or a portion
of a condominium unit (hereinafter referred to as the “Unit”). If the building
is converted to condominium form of ownership, then this lease shall not be
affected thereby and shall continue in full force and effect, except as follows:


          (i) Except
as otherwise specifically set forth herein, references to the building or
building project shall be deemed to be references to the Unit.


          (ii) Rents
based upon increases in real estate taxes shall be payable upon the following
terms:


	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 The Percentage applicable to Expenses or real estate taxes, as
 applicable, shall be recomputed as a decimal fraction carried to four places
 beyond the decimal point by dividing the rentable square foot area of the
 demised premises by the rentable square foot area of the Unit (as determined
 by Landlord in its reasonable judgment);

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 Expenses shall include all Expenses heretofore defined and all
 charges, assessments and special assessments payable by the owner of or
 attributable to the Unit pursuant to the condominium’s declaration of
 condominium, its bylaws or resolution of the board of managers or condominium
 association having jurisdiction of the Unit;

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 Expenses and real estate taxes for the Base Year and the base tax
 year shall be recomputed by Landlord using its reasonable judgment to
 allocate to the Unit the actual Expenses and real estate taxes as would have
 been allocated to the Unit for Base Year and base tax year had the
 condominium then been in existence and such amounts as Landlord shall have
 reasonably determined shall be deemed the Expenses and real estate taxes for
 the Base Year and base tax year, respectively; and

 
	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 If any such conversion shall be effective on a date that is not the
 first day of a relevant comparative year, additional rent for increases in
 real estate

 


83









	
  

 	
  

 	
  

 
	
  

 	
  

 	
 taxes, as the case may be, shall be calculated for the periods before
 and following the effective date of such conversion according to the
 appropriate methodology for such period and accordingly prorated for each
 such period.

 


          (iii) Any
dispute regarding the provisions of this paragraph A shall be resolved by
Arbitration in accordance with the provisions of Article 41 of this lease.


          B.
Tenant does hereby consent in advance to the formation of
individual and separately saleable units in the nature of condominium units,
and the creation of a condominium regime (the “Condominium”) for the building
project, as long as the rights of Tenant pursuant to the terms of this lease
are not reduced, conditioned or otherwise adversely affected (other than to a
de minimis extent) nor its obligations increased (other than to a de minimis
extent).


          C.
Regardless of whether or not Tenant may have a sufficient
interest in the building project pursuant to law to require its consent to the
documents involved in the Conversion, Tenant does hereby specifically waive
such rights, and if such rights cannot be waived, does hereby consent to such
matters in advance.


          D.
In the event of a Conversion in which the Premises are converted
into one or more separately saleable units, Tenant does hereby agree in advance
to attorn to any purchaser of any unit(s) which shall consist of the Premises
and recognizes such purchaser as landlord under the terms and provisions of
this lease and no further consent of Tenant shall be required as long as the
purchaser of any such unit(s) agrees in writing to honor the rights and
obligations of Tenant hereunder.


          E.
This lease shall be subordinate to all Condominium Documents,
provided that Landlord shall obtain, on behalf of Tenant, a non-disturbance and
attornment agreement from the Condominium, in a commercially reasonable form,
but in any event providing in substance that so long as Tenant is not in
default under this lease beyond any applicable notice and/or grace period, the Condominium will
not take any action to recover possession of the demised premises,
notwithstanding any foreclosure of the Unit. Upon such Conversion, if the Condominium
Documents provide for the performance of any obligations that would have been
Landlord’s obligations under this lease, Landlord will cause the board of
managers to perform such obligations, but in no event shall any rights or
remedies of Tenant hereunder be diminished, conditioned or negated or its
obligations increased by such operation of the Condominium Documents. The term
“Condominium Documents” shall include the declaration of condominium, bylaws
and any other documents promulgated in connection therewith. It is expressly
understood and agreed that the demised premises are intended to be a part of
the Condominium, and to be subject to the Condominium Documents. Tenant agrees
that the aforesaid subordination shall be self-operative without the need for
any further action but Tenant shall execute and deliver such documents as
Landlord may require to confirm or further effect such subordination. Tenant
agrees to observe all of the rules and regulations of the Condominium and the
board of managers of the Condominium (the “Board”), provided Tenant has been
furnished with a copy of such rules and regulations and same are not
inconsistent with the terms of this lease.


84





          F.
Notwithstanding anything to the contrary contained elsewhere in this lease, any
provision of this lease that requires Landlord to “cause the Board” to provide
services or perform any other act shall be deemed to require Landlord to use
commercially reasonable efforts to cause the Board to do the same, or if,
despite the exercise of such commercially reasonable efforts by Landlord, there
is a continued failure in performance by the Board, then Landlord shall use
commercially reasonable efforts to provide such service or perform such act in
lieu of the Board. Landlord agrees that the Condominium Declaration recorded
for the Building shall obligate the Board to perform Landlord’s maintenance,
repair and replacements obligations hereunder that relate to “common elements”
or shall give the Landlord access and the privilege to perform the same.


50. ADDITIONAL DEFINITIONS; COUNTERPARTS


          A. The term
“real estate taxes” shall, in addition to the items referred to in Article 2,
include assessments, impositions and levies imposed by business special tax
districts. “Business Days” shall mean all days, except Saturdays, Sundays, and
all days celebrated as holidays under union contracts applicable to the
building. “Business Hours” shall mean 8:00 a.m. to 6:00 p.m. The words
“herein,” “hereof,” “hereto,” “hereunder” and similar words shall be
interpreted as being references to this lease as a whole and not merely the clause, paragraph, Section or
Article in which such word appears. The term “demised premises” is used
interchangeably with the term “premises”. The words “shall” and “will” are
interchangeable, each imposing a mandatory obligation upon the party to whom
such verb applies. The words ““include” and “including” shall be interpreted to
mean “including, without limitation.” The word “control” and the variations
thereof used in this lease shall have the meanings ascribed to them under the
Securities Act of 1933, as amended, and the regulations promulgated under it.
Whenever in this lease the word “default” is used, it is acknowledged and
agreed that such term shall mean the failure to perform an obligation on or
before a designated date, whether or not (i) a default notice has been sent,
(ii) performance of the obligation by Tenant is accepted after the designated
date, (iii) this lease may be terminated for failure of timely performance, or
(iv) any other remedy or right accrues to Landlord by reason of such late
performance. Wherever appropriate in this lease, personal pronouns shall be
deemed to include the other genders and the singular or plural of any defined
term or other word shall, as the context may require, be deemed to include, as
the case may be, either the singular or the plural. All Article and paragraph
and subsection references set forth herein shall, unless the context otherwise
specifically requires, be deemed references to the Articles, paragraphs and
subsections of this lease. Wherever herein Tenant is required to comply with
laws, orders and regulations of any governmental authority having or asserting
jurisdiction over the demised premises, such laws, orders and regulations shall
include, as and where applicable to the demised premises: the Americans with
Disabilities Act of 1990, Local Law 5/1973, Local Laws 16/1984, and 16/1987,
Local Law 58/1987, Local Law 76/1985 and Local Law 80/1985, as each may be amended
and any successor statutes of like or similar import. References to Landlord as
having no liability to Tenant or being without liability to Tenant shall mean
that, except as otherwise provided in this lease, Tenant is not entitled to
terminate this lease, or to claim actual or constructive eviction, partial or
total, or to receive any abatement or diminution of rent, or to be relieved in
any manner of any of its other obligations hereunder, or to be compensated for
loss or injury suffered or to enforce any other kind of 


85





liability whatsoever against Landlord under or with respect to this
lease or with respect to Tenant’s use or occupancy of the demised premises.


          B. This
lease may be executed in two or more counterparts and all counterparts so
executed shall for all purposes constitute one agreement binding on all of the
parties hereto, notwithstanding that all parties shall not have executed the
same counterparts. Facsimile and photocopy signatures on this lease shall have
the same force and effect as originals.


51. USE OF BUILDING NAME AND IMAGE


          Tenant
acknowledges and agrees that Landlord owns the name and image of the Empire
State Building and the good will symbolized by such name and image. Tenant,
therefore, shall not use or suffer the use by any affiliate, employee or agent
of the name or image of the Empire State Building in any advertisement or other
publication, irrespective of the medium or in any trademark, servicemark or
trade name, without the prior written consent of Landlord in each instance.
Breach of the terms of this paragraph shall be deemed to be a material default
under this lease. Notwithstanding any other rights or remedies that may exist
in law, Landlord shall be entitled to enforce the provisions of this paragraph
by injunctive or other form of equitable relief. Tenant’s obligations and
Landlord’s rights under this paragraph shall survive the expiration or sooner
termination of the term hereof. Landlord hereby consents to Tenant’s use of the
name Empire State Building on Tenant’s business stationery solely to identify
its address, for only so long as Tenant is a tenant in the building and this
lease is in full force and effect.


52. APPLICABLE LAW


          This lease
shall be deemed to have been made in New York County, New York, and shall be
construed in accordance with the laws of New York. All actions or proceedings
relating, directly or indirectly, to this lease shall be litigated only in
courts located within the County of New York. Landlord and Tenant, any guarantor
of the performance of Tenant’s obligations hereunder and their respective
successors and assigns, hereby subject themselves to the jurisdiction of any
state or federal court located with such county. Tenant hereby waives the right
to raise any defense based upon inconvenient forum or make any plea or motion
seeking to remove any case to another venue (but nothing herein shall preclude
Tenant or Landlord from removing any case to any federal court sitting in New
York County).


[THIS SPACE INTENTIONALLY LEFT BLANK;

SIGNATURE PAGE FOLLOWS THIS PAGE]


86





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


	
  

 	
  

 	
  

 
	
  

 	
 LANDLORD:

 
	
  

 	
 EMPIRE STATE
 BUILDING COMPANY L.L.C.

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Peter L.
 Malkin

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Name: Peter
 L. Malkin 

 
	
  

 	
  

 	
 Title:
 Member

 
	
  

 	
  

 
	
  

 	
 TENANT: 

 
	
  

 	
 COTY INC

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Michael
 Fishoff

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Name:
 Michael Fishoff 

 
	
  

 	
  

 	
 Title: Chief
 Financial Officer

 


87





EXHIBIT A


to lease


between


Empire State Building Company L.L.C.,
Landlord


and


Coty Inc., Tenant


Diagram of Demised Premises






[Floor Plan]






[Floor Plan]









EXHIBIT A-1


to lease


between


Empire State Building Company L.L.C.,
Landlord


and


Coty Inc., Tenant


Legal Description


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


BEGINNING at the corner formed by the intersection of the southerly
side of 34th Street with the westerly side of 5th Avenue;


THENCE southerly along the westerly side of 5th Avenue 197
feet 6 inches to the northerly side of 33rd Street;


THENCE westerly along the northerly side of 33rd Street 500
feet;


THENCE northerly and parallel with the westerly side of 5th
Avenue 98 feet 9 inches to the middle line of the block;


THENCE easterly and parallel with the northerly side of 33rd
Street, 75 feet;


THENCE again northerly and parallel with the westerly side of 5th
Avenue and part of the distance through a party wall 98 feet 9 inches to the
southerly side of 34th Street;


THENCE easterly along the southerly side of 34th Street 425
feet to the corner aforesaid, the point or place of BEGINNING.





EXHIBIT B


to lease


between


Empire State Building Company L.L.C.,
Landlord


and


Coty Inc., Tenant


Cleaning Schedule


RESTROOMS


	
  

 	
  

 	
  

 
	
 Daily/Nightly
 Service

 
	
  

 	
 •

 	
 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.

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 Provide and install all hand towels, toilet issue, hand soap,
 sanitary napkins and trash liners.

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 Remove finger marks from walls, doors and painted surfaces.

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 Report all mechanical deficiencies, i.e. dripping faucets, burnt out
 lights, etc., to building management.

 






	
  

 	
  

 	
  

 
	
 Weekly Service

 
	
  

 	
 •

 	
 Dust and
 clean all air vents

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 Wash all
 restroom partitions on both sides using a germicidal disinfectant

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 Clean and
 wash all ventilating louvers

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 Hand wash
 and polish all wall tiles and stall surfaces

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 Dust ceiling
 light lenses

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 Wash and
 disinfect all trash containers

 













	
  

 	
  

 	
  

 
	
 Monthly Service

 
	
  

 	
 •

 	
 Machine scrub all restroom floors using germicidal floor cleaner

 



TENANT
AREAS


	
  

 	
  

 	
  

 
	
 Daily/Nightly Service

 
	
  

 	
 •

 	
 Hand dust all areas below five (5) feet high using a soft-treated
 dusting cloth 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.

 
	
  

 	
  

 	
  

 
	
  

 	
 •

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

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 Wipe clean all metal elevator shaft way doors and frames.

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 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, all plastic liners required for removal of
 all rubbish from the building.

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 All water fountains washed, cleaned nightly.

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 Slop sink rooms cleaned nightly.

 





	
  

 	
  

 	
  

 
	
 Weekly

 
	
  

 	
 •

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

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 All linoleum, rubber, Pirelli tile, 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.

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 All carpeting and rugs shall be carpet swept.

 
	
  

 	
  

 	
  

 
	
  

 	
 •

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

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 Dust all door, floor and wall HVAC louvers. 

 
	
  

 	
  

 	
  

 
	
  

 	
 •

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

 


2









	
  

 	
  

 	
  

 
	
  

 	
 •

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

 
	
  

 	
  

 	
  

 
	
  

 	
 •

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

 
	
  

 	
  

 	
  

 
	
 Monthly

 
	
  

 	
 •

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

 
	
  

 	
  

 	
  

 
	
  

 	
 •

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

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 Dust all areas above (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.

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 Wipe clean all baseboards using an approved baseboard cleaner.

 
	
  

 	
  

 	
  

 
	
  

 	
 •

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

 
	
  

 	
  

 	
  

 
	
 Quarterly

 
	
  

 	
 •

 	
 Wipe clean all ceiling diffusers.

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 Dust all window blinds.

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 Remove, clean and replace all ceiling light lenses.

 
	
  

 	
  

 	
  

 
	
 Annually

 
	
  

 	
 •

 	
 Wash all trash containers. Monthly or more if needed.

 
	
  

 	
  

 	
  

 
	
 Other

 
	
  

 	
 •

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

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 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.

 
	
  

 	
  

 	
  

 
	
  

 	
 •

 	
 Clean interior and exterior of outside windows, when necessary, but
 not less than two (2) times a year.

 


3





EXHIBIT C


to lease


between


Empire State Building Company L.L.C., Landlord


and


Coty Inc., Tenant


Non-Disturbance Agreements





EXHIBIT C-1


SUBORDINATION
NON-DISTURBANCE AND ATTORNMENT AGREEMENT


WITH
GROUND LESSEE/SUBLESSOR





SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT


          SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this “Agreement”) dated as
of July 14, 2008, between EMPIRE STATE BUILDING ASSOCIATES L.L.C. (“Master
Lessee”), a
limited liability company organized and existing under the laws of the State of
New York having its principal place of business c/o Wien & Malkin LLP, 60
East 42nd Street, New York, New York 10165; and COTY INC. (“Subtenant”),
a corporation organized and existing under the laws of the State of Delaware
having its principal place of business at Two Park Avenue, New York, New York
10016.


W I T N E S
S E T H:


          Master
Lessee is the lessee by mesne assignments under that certain Indenture of
Ground Lease more particularly described in Exhibit 1 annexed hereto and made
part hereof (as amended, supplemented or otherwise modified from time to time,
the “Master Lease”)pursuant
to which it leases the land described on Schedule A annexed hereto and made
part hereof (the “Land”) and the building (the “Building”) known as The Empire State Building, 350 Fifth Avenue, New York,
New York from Empire State Land Associates L.L.C. In turn, Master Lessee
sublets the Land and Building to Empire State Building Company L.L.C. (“Sublandlord”)
pursuant to that certain Agreement of Sublease more particularly
described in Exhibit 2 annexed hereto and made part hereof (as amended,
supplemented or otherwise modified from time to time, the “Operating
Sublease”).


          Sublandlord
and Subtenant entered into a Sublease, dated as of July 14, 2008 (the “Sublease”)
pursuant to which Subtenant subleases a portion of the Building more
particularly described in the Sublease (the “Subleased Premises”).


          Subtenant
desires to be assured of the continued use and occupancy of the Subleased
Premises under the terms of the Sublease if the term of the Operating Sublease
is terminated or expires prior to the last day of the term of the Sublease.


          Master
Lessee agrees to such continued use and occupancy by Subtenant, provided that
Subtenant agrees to recognize and attorn to Master Lessee.


          NOW,
THEREFORE, in consideration of the premises and covenants herein contained, it
is agreed:


          1.
Subject to the provisions
hereinafter provided, the Sublease and all of the rights under the Sublease are
and shall remain subject and subordinate to the Master Lease and to all of the
terms thereof and the Master Lessee’s rights thereunder.


          2.
If the term of the
Operating Sublease is terminated or expires prior to the expiration of the term
of the Sublease, then (a) the Sublease shall not be terminated, (b) Master
Lessee shall not name or join Subtenant in summary or other proceedings to
obtain possession of the Subleased Premises or to terminate the Sublease and
(c) Master Lessee shall not disturb the use and occupancy of Subtenant under the
Sublease so long as, with respect to each of clauses (a), (b) and (c),
Subtenant is not in default, beyond any applicable notice and/or cure period,
of any term, covenant or condition of the Sublease to be performed or satisfied
by Subtenant.


          3.
If the term of the Operating Sublease is terminated or expires prior to the
expiration of the term of the Sublease, Subtenant shall attorn to Master Lessee
as the sublandlord under the Sublease. All rights and obligations under the
Sublease shall continue as though such termination or expiration of the term of
the Operating Sublease had not occurred. The provisions of the foregoing two
sentences are intended to be effected automatically and be self-operative
without the need for further documentation to effect. Subtenant waives the
provisions of any statute or rule of law now or hereafter in effect that may
give or purport to give Subtenant any right or election to terminate or
otherwise adversely affect the Sublease and the obligations of Subtenant thereunder
by reason of any such termination or expiration of the term of the Lease.





          4.
Notwithstanding anything in this Agreement set forth to the contrary, Master
Lessee shall not in any event (a) be liable for any previous act, omission,
default, misrepresentation or breach of any warranty of Sublandlord, but the
foregoing shall not be construed or interpreted as exculpating Master Lessee
from liability for any damages, fees, costs or expenses arising out of Master
Lessee’s failure to perform any obligation of any prior landlord (including
Sublandlord), to the extent such failure continues following the date that
Master Lessee succeeded to the interest of Sublandlord under the Sublease (the
“Succession
Date”), (b) be subject to any offsets, credits, claims,
counterclaims or defenses that Subtenant may be entitled to assert against
Sublandlord; provided, however, that Master Lessee shall be subject to offsets,
credits, claims, counterclaims or defenses in favor of Subtenant to the extent
that they relate to any unfunded installment of Landlord’s Contribution (as
defined in the Sublease) payable to Subtenant pursuant to the terms of the
Sublease, (c) be bound by any amendment to or modification of the Sublease made
without the prior written consent of Master Lessee, except for any such
amendment or modification made pursuant to provisions of the Sublease that
prescribe such amendment or modification and specify the subject matter
thereof, (d) be bound by any payment by Subtenant of any rent in advance beyond
one month’s rent paid in accordance with the terms of the Sublease or (e) be
responsible for or with respect to the retention, application and/or return to
Subtenant of any security deposit paid to Sublandlord, whether or not still
held by Sublandlord, unless and until Master Lessee has actually received, or
been credited with, the full amount of such security deposit. It is agreed that
after the Succession Date, nothing herein shall be deemed to relieve Master
Lessee from performing, in accordance with the terms of the Sublease and this
Agreement, the obligations of the Sublandlord under the Sublease if the same
have not been performed as of the Succession Date and any other obligation that
may accrue thereafter. If any obligation of Sublandlord shall not have been
performed prior to the Succession Date and Master Lessee is required to perform
the same after the Succession Date pursuant to the terms of the Sublease and/or
this Agreement, and if Master Lessee shall default in its obligation to perform
the same, then Subtenant’s remedies for such non-performance shall be as
prescribed in the Sublease or as may exist at law. Notwithstanding anything
herein to the contrary, Master Lessee shall not be liable for any monetary
damages accruing prior to the Succession Date as a result of Sublandlord’s
failure to perform any obligation required under the Sublease to have been
performed prior to the Succession Date, except as otherwise provided in clause
(b) of this Paragraph 4.


          5.
If any default (which includes any act or failure to act) shall occur that
shall permit Subtenant to terminate the term of the Sublease or cancel such
Sublease (whether immediately or after the lapse of time) (a “Termination
Right”), Subtenant shall promptly give Master Lessee notice of
such event and a reasonable opportunity to remedy such event (but not less than
(a) ten (10) business days after such notice in the case of a monetary default
and (b) thirty (30) days in all other circumstances). If Master Lessee shall
have cured any monetary default within the aforesaid time period or have
commenced to effect such a cure within the relevant time period in all other
cases (and continue to act diligently to prosecute such cure to completion),
then Subtenant shall not effect such a termination and the Sublease shall
continue in effect pursuant to its terms. Master Lessee shall be entitled to
additional time to cure such default if (x) Master Lessee shall require more
than thirty (30) days following such notice to remedy the default (other than a
monetary default) giving rise to the Termination Right, (y) Master Lessee shall
have given notice of its intention to remedy the event within ten (10) days
following its receipt of Subtenant’s notice and (z) thereafter promptly takes
and diligently pursues commercially reasonable steps to effect such remedy.


          6.
In all events, the liability of Master Lessee to Subtenant whether under this
Agreement or the Sublease and Subtenant’s right to be made whole for any
damage, injury or loss it may sustain shall be limited and restricted to Master
Lessee’s estate in the Subleased Premises and the proceeds of any sale thereof
and shall in no event exceed such interest or proceeds. In no event shall
Subtenant name or seek to name any member, agent, employee or affiliate of
Master Lessee in any action, proceeding, arbitration or other form of
litigation, whether to collect any deficiency or otherwise, in connection with
any claim arising out of or in connection with the Sublease or this Agreement (whether
before or after the expiration or earlier termination of the term of the
Lease).


          7.
Any notice required or desired to be given in connection with this Agreement
shall be in writing and shall be given to the parties hereto at the addresses
set forth below by (a) personal delivery to the person to whom notices are
designated to be given hereunder or (b) by facsimile transmittal, provided that
such transmittal is electronically confirmed to have been successfully sent and
an original, executed copy of such notice is delivered personally within one
(1) business day to the designated recipient of such notice. Notices shall be
deemed effective upon receipt by the designated person but the failure of any
such person to accept any notice or the failure to deliver


2





any such notice because any
designated recipient is not available to receive the same shall not be deemed
to invalidate the effectiveness of such notice. Notices shall be addressed as
follows:


	
  

 	
  

 
	
  

 	
 To Master Lessee:

 
	
  

 	
 Empire State Building
 Associates L.L.C. 

 
	
  

 	
 c/o Wien & Malkin LLP

 
	
  

 	
 60 East 42nd Street

 
	
  

 	
 New York, New York 10165

 
	
  

 	
 Attention: Senior Asset
 Manager

 
	
  

 	
 Facsimile Number: (212)
 850-2796

 
	
  

 	
  

 
	
  

 	
 To Subtenant:

 
	
  

 	
 Coty Inc.

 
	
  

 	
 Two Park Avenue

 
	
  

 	
 New York, New York 10016

 
	
  

 	
 Attention: Chief Financial
 Officer 

 
	
  

 	
 Facsimile Number: (212)
 479-4508

 
	
  

 	
  

 
	
  

 	
 With a copy to:

 
	
  

 	
  

 
	
  

 	
 Coty Inc.

 
	
  

 	
 Two Park Avenue

 
	
  

 	
 New York, New York 10016

 
	
  

 	
 Attention: General Counsel

 
	
  

 	
 Facsimile Number: (212)
 479-4328

 


Each
party hereto may designate a different person and address for the receipt of
notices by notice given in the aforesaid manner.


          8.
A “business day” is deemed to be any day, except Saturday, Sunday and any day
that a majority of the commercial banks chartered by the State of New York
having branches in the Borough of Manhattan are closed for the purpose of
accepting deposits (other than by automatic teller machine or similar devices
or by electronic transfer of funds).


          9.
The provisions of this Agreement are binding upon and shall inure to the
benefit of the successors and assigns of the parties hereto.


          10.
If there is any conflict or ambiguity between any term of this Agreement and
any term of the Sublease, the term of this Agreement shall control.


          11.
This Agreement shall be governed by and construed in accordance with the
substantive laws of the State of New York without giving effect to any choice
or conflicts of law doctrine or policy. Any legal proceeding respecting any
cause of action or claim arising hereunder shall be brought in the courts of
the State of New York sitting in the County of New York.


          12.
Master Lessee and Subtenant waive trial by jury in any action or proceeding or
counterclaim arising out of this Agreement brought or made by either of them.


          13.
This Agreement may not be amended or terminated orally.


          14.
This Agreement constitutes the sole agreement between the parties with respect
to the subject matter hereof and supersedes any prior agreement (written or
oral) between them with respect to such subject matter.


          15.
This Agreement may be executed in two or more counterparts and all counterparts
so executed shall for all purposes constitute one agreement binding on all of
the parties hereto, notwithstanding that all parties


3





shall not have executed the
same counterparts. Facsimile and photocopy signatures on this Agreement shall
have the same force and effect as originals.


[SIGNATURE PAGE FOLLOWS]


4






          IN
WITNESS WHEREOF, the parties hereto have executed these presents the day and
year first above written.


	
  

 	
  

 	
  

 
	
  

 	
 EMPIRE STATE
 LAND ASSOCIATES L.L.C.

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name: Peter
 L. Malkin

 
	
  

 	
 Title:
 Member

 
	
  

 	
  

 
	
  

 	
 COTY INC.

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name:
 Michael Fishoff

 
	
  

 	
 Title: Chief
 Financial Officer

 






	
  

 	
  

 	
  

 
	
 STATE OF NEW
 YORK)

 	
  

 
	
  

 	
 :

 	
 ss.

 
	
 COUNTY OF
 NEW YORK)

 	
  

 


          On the ___
day of July, 2008, before me, the undersigned, personally appeared Peter L.
Malkin 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(s) on behalf of which the individual(s)
acted, executed the instrument.


	
  

 	
  

 
	
  

 	

 


 
	
  

 	
 Notary
 Public

 






	
  

 	
  

 	
  

 
	
 STATE OF NEW
 YORK)

 	
  

 
	
  

 	
 :

 	
 ss.

 
	
 COUNTY OF
 NEW YORK)

 	
  

 



          On
the ____ day of July, 2008, 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(s) on behalf of which the
individual(s) acted, executed the instrument.


	
  

 	
  

 
	
  

 	

 


 
	
  

 	
 Notary
 Public

 


5





SCHEDULE
A


The Land


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


BEGINNING at the corner formed by the intersection of the southerly
side of 34th Street with the westerly side of 5th Avenue;


THENCE southerly along the westerly side of 5th Avenue 197
feet 6 inches to the northerly side of 33rd Street; 


THENCE westerly along the northerly side of 33rd Street 500
feet;


THENCE northerly and parallel with the westerly side of 5th
Avenue 98 feet 9 inches to the middle line of the block; 


THENCE easterly and parallel with the northerly side of 33rd
Street, 75 feet;


THENCE again northerly and parallel with the westerly side of 5th
Avenue and part of the distance through a party wall 98 feet 9 inches to the
southerly side of 34th Street;


THENCE easterly along the southerly side of 34th Street 425
feet to the corner aforesaid, the point or place of BEGINNING.





EXHIBIT 1


Master Lease


          Indenture
of Ground Lease dated 12-21-51 by and between The Prudential Insurance Company
of America, as landlord and Alglan Realty Corporation, Rostev Realty
Corporation and Bentob Realty Corporation as tenants, and recorded 12-21-51 in
Liber 4759 Page 534, as assigned and/or modified pursuant to:


          Modification
of Indenture of Lease between The Prudential Insurance Company of America and
Empire State Building Associates, dated 12-27-61, and recorded 12-27-61 in
Liber 5173 Page 49;


          Second
Modification of Indenture of Lease between The Prudential Insurance Company of
America and Empire State Building Associates, dated 2-15-65, and recorded
2-15-65 in Liber 5314 Page 479;


          Agreement
and Declaration by and between The Prudential Insurance Company of America and
Empire State Building Associates, dated 12-6-65, and recorded 12-10-65 in Liber
5353 Page 260.





EXHIBIT 2


Operating Sublease


          Terms,
Covenants, Conditions, Provisions, and Agreements of the Agreement of Sublease
dated 12/27/61 and recorded on 12/27/61 in Liber 5173 Page 155 made by Empire
State Building Associates, as sub-landlord, to Lawrence A. Wien, Harry B.
Helmsley, Martin Weiner Realty Corporation and Parempco Inc., Joint Venturers,
associated under the name of Empire State Building Company, as sub-tenant., and
with respect thereto:


          Terms,
Covenants, Conditions and Provisions of First Modification of Sublease between
Empire State Building Associates, as sublandlord, and Lawrence A. Wien, Harry
B. Helmsley, Wico Trading Corporation and Martin Weiner Realty Corporation,
Joint Venturers associated under the name of Empire State Building Company,
subtenants, (with consent from The Prudential Insurance Company of America)
dated 2/15/65 and recorded on 2/15/65 in Liber 5315 Page 1.


2






EXHIBIT C-2


NON-DISTURBANCE AGREEMENT WITH FEE OWNER






NON-DISTURBANCE AND ATTORNMENT AGREEMENT


          NON-DISTURBANCE
AND ATTORNMENT AGREEMENT (this “Agreement”) dated as of July 14,
2008, between EMPIRE STATE LAND ASSOCIATES L.L.C. (“Owner”), a limited liability company
organized and existing under the laws of the State of New York, having its
principal place of business c/o Wien & Malkin LLP, 60 East 42nd Street, New
York, New York 10165; and COTY INC. (“Subtenant”), a corporation
organized and existing under the laws of the State of Delaware, having an
address at Two Park Avenue, New York, New York 10016.


W I T N E S S E T H:


          Owner
owns the fee title to the land described on Schedule A annexed hereto and made
part hereof (the “Land”)and
the building (the “Building”) known as The Empire
State Building, 350 Fifth Avenue, New York, New York. Owner leases the Land and
Building to Empire State Building Associates L.L.C. (the “Master
Lessee”)pursuant to the Ground Lease described on
Exhibit 1 annexed hereto and made part hereof (as amended,
supplemented or otherwise modified from time to time, the “Master
Lease”). In turn, Master Lessee sublets the Land and
Building to Empire State Building Company L.L.C. (“Sublandlord”)pursuant to that certain Agreement
of Sublease more particularly described in Exhibit 2 annexed hereto and made part
hereof (as amended, supplemented or otherwise modified from time to time, the “Operating
Sublease”).


          Sublandlord
and Subtenant entered into a Lease dated as of July 14, 2008 (the “Sublease”), pursuant to which Subtenant
subleases a portion of the Building more particularly described in the Sublease
(the “Subleased
Premises”).


          Subtenant
desires to be assured of the continued use and occupancy of the Subleased
Premises under the terms of the Sublease if the terms of the Master Lease and
the Operating Sublease are terminated or expire prior to the last day of the
term of the Sublease.


          Owner
agrees to such continued use and occupancy by Subtenant, provided that
Subtenant agrees to recognize and attorn to Owner.


          NOW,
THEREFORE, in consideration of the premises and covenants herein contained, it
is agreed:


          1.
If the terms of the Master Lease and Operating Sublease are terminated or
expire prior to the expiration of the term of the Sublease, then (a) the
Sublease shall not be terminated, (b) Owner shall not name or join Subtenant in
summary or other proceedings to obtain possession of the Subleased Premises or
to terminate the Sublease and (c) Owner shall not disturb the use and occupancy
of Subtenant under the Sublease so long as, with respect to each of clauses
(a), (b) and (c), Subtenant is not in default, beyond any applicable notice
and/or cure period, of any term, covenant or condition of the Sublease to be performed or satisfied by
Subtenant.


          2.
If the terms of the Master Lease and Operating Sublease are terminated or
expire prior to the expiration of the term of the Sublease, Subtenant shall
attorn to Owner as the sublandlord under the Sublease. All rights and
obligations under the Sublease shall continue as though such termination or
expiration of the terms of each of the Master Lease and Operating Sublease had
not occurred. The provisions of the foregoing two sentences are intended to be
effected automatically and be self-operative without the need for further
documentation to effect. Subtenant waives the provisions of any statute or rule
of law now or hereafter in effect that may give or purport to give Subtenant
any right or election to terminate or otherwise adversely affect the Sublease
and the obligations of Subtenant thereunder by reason of any such termination
or expiration of the term of the Master Lease or of the Operating Sublease.


          3.
Notwithstanding anything in this Agreement set forth to the contrary, Owner
shall not in any event (a) be liable for any previous act, omission, default,
misrepresentation or breach of any warranty of Sublandlord, but the foregoing
shall not be construed or interpreted as exculpating Owner from liability for
any damages, fees, costs 





or
expenses arising out of Owner’s failure to perform any obligation of any prior
landlord (including Sublandlord), to the extent such failure continues
following the date that Owner succeeded to the interest of Sublandlord under
the Sublease (the “Succession Date”), (b) be subject to any offsets, credits,
claims, counterclaims or defenses that Subtenant may be entitled to assert
against Sublandlord; provided, however, that Owner shall be subject to offsets,
credits, claims, counterclaims or defenses in favor of Subtenant to the extent
that they relate to any unfunded installment of Landlord’s Contribution (as
defined in the Sublease) payable to Subtenant pursuant to the terms of the
Sublease, (c) be bound by any amendment to or modification of the Sublease made
without the prior written consent of Owner, except for any such amendment or
modification made pursuant to provisions of the Sublease that prescribe such
amendment or modification and specify the subject matter thereof, (d) be bound
by any payment by Subtenant of any rent in advance beyond one month’s rent paid
in accordance with the terms of the Sublease or (e) be responsible for or with
respect to the retention, application and/or return to Subtenant of any
security deposit paid to Sublandlord, whether or not still held by Sublandlord,
unless and until Owner has actually received, or been credited with, the full
amount of such security deposit. It is agreed that after the Succession Date,
nothing herein shall be deemed to relieve Owner from performing, in accordance
with the terms of the Sublease and this Agreement, the obligations of
Sublandlord under the Sublease if the same have not been performed as of the
Succession Date and any other obligation that may accrue thereafter. If any
obligation of Sublandlord shall not have been performed prior to the Succession
Date and Owner is required to perform the same after the Succession Date
pursuant to the terms of the Sublease and/or this Agreement, and if Owner shall
default in its obligation to perform the same, then Subtenant’s remedies for
such non-performance shall be as prescribed in the Sublease or as may exist at
law. Notwithstanding anything herein to the contrary, Master Lessee shall not
be liable for any monetary damages accruing prior to the Succession Date as a
result of Sublandlord’s failure to perform any obligation required under the
Sublease to have been performed prior to the Succession Date, except as
otherwise provided in clause (b) of this Paragraph 3.


          4.
If any default (which
includes any act or failure to act) shall occur that shall permit Subtenant to
terminate the term of the Sublease or cancel such Sublease (whether immediately
or after the lapse of time) (a “Termination Right”), Subtenant shall promptly give Owner
notice of such event and a reasonable opportunity to remedy such event (but not
less than (a) ten (10) business days after such notice in the case of a
monetary default and (b) thirty (30) days in all other circumstances). If Owner
shall have cured any monetary default within the aforesaid time period or have
commenced to effect such a cure within the relevant time period in all other
cases (and continue to act diligently to prosecute such cure to completion),
then Subtenant shall not effect such a termination and the Sublease shall
continue in effect pursuant to its terms. Owner shall be entitled to additional
time to cure such default if (x) Owner shall require more than thirty (30) days
following such notice to remedy the default (other than a monetary default)
giving rise to the Termination Right, (y) Owner shall have given notice of its
intention to remedy the event within ten (10) days following its receipt of
Subtenant’s notice and (z) Owner promptly takes and diligently pursues
commercially reasonable steps to effect such remedy.


          5.
In all events, the
liability of Owner to Subtenant whether under this Agreement or the Sublease
and Subtenant’s right to be made whole for any damage, injury or loss it may
sustain shall be limited and restricted to Owner’s estate in the Subleased
Premises and the proceeds of any sale thereof and shall in no event exceed such
interest or proceeds. In no event shall Subtenant name or seek to name any
member, agent, employee or affiliate of Owner in any action, proceeding,
arbitration or other form of litigation, whether to collect any deficiency or
otherwise, in connection with any claim arising out of or in connection with
the Sublease or this Agreement (whether before or after the expiration or
earlier termination of the term of the Lease).


          6.
Any notice required or
desired to be given in connection with this Agreement shall be in writing and
shall be given to the parties hereto at the addresses set forth below by (a)
personal delivery to the person to whom notices are designated to be given
hereunder or (b) by facsimile transmittal, provided that such transmittal is
electronically confirmed to have been successfully sent and an original,
executed copy of such notice is delivered personally within one (1) business
day to the designated recipient of such notice. Notices shall be deemed
effective upon receipt by the designated person but the failure of any such person to accept any notice or the
failure to deliver any such notice because any designated recipient is not
available to receive the same shall not be deemed to invalidate the
effectiveness of such notice. Notices shall be addressed as follows:


	
  

 	
  

 
	
  

 	
 To Owner:

 
	
  

 	
 Empire State Land
 Associates L.L.C. 

 


2









	
  

 	
  

 
	
  

 	
 c/o Wien & Malkin LLP

 
	
  

 	
 60 East 42nd Street

 
	
  

 	
 New York, New York 10165

 
	
  

 	
 Attention: Senior Asset
 Manager 

 
	
  

 	
 Facsimile Number: (212)
 850-2796

 
	
  

 	
  

 
	
  

 	
 To Subtenant:

 
	
  

 	
 Coty Inc.

 
	
  

 	
 Two Park Avenue

 
	
  

 	
 New York, New York 10016 

 
	
  

 	
 Attention: Chief Financial
 Officer 

 
	
  

 	
 Facsimile No.: (212)
 479-4508

 
	
  

 	
  

 
	
  

 	
 With a copy to:

 
	
  

 	
 Coty Inc.

 
	
  

 	
 Two Park Avenue

 
	
  

 	
 New York, New York 10016 

 
	
  

 	
 Attention: General Counsel
 

 
	
  

 	
 Facsimile No.: (212)
 479-4328

 


Each
party hereto may designate a different person and address for the receipt of
notices by notice given in the aforesaid manner.


          7.
A “business day” is deemed to be any day, except Saturday, Sunday and any day
that a majority of the commercial banks chartered by the State of New York
having branches in the Borough of Manhattan are closed for the purpose of
accepting deposits (other than by automatic teller machine or similar devices
or by electronic transfer of funds).


          8.
The provisions of this Agreement are binding upon and shall inure to the
benefit of the successors and assigns of the parties hereto.


          9.
If there is any conflict or ambiguity between any term of this Agreement and
any term of the Sublease, the term of this Agreement shall control.


          10.
This Agreement shall be governed by and construed in accordance with the
substantive laws of the State of New York without giving effect to any choice
or conflicts of law doctrine or policy. Any legal proceeding respecting any
cause of action or claim arising hereunder shall be brought in the courts of
the State of New York sitting in the County of New York.


          11.
Owner and Subtenant waive trial by jury in any action or proceeding or
counterclaim arising out of this Agreement brought or made by either of them.


          12.
This Agreement may not be amended or terminated orally.


          13.
This Agreement constitutes the sole agreement between the parties with respect
to the subject matter hereof and supersedes any prior agreement (written or
oral) between them with respect to such subject matter.


          14.
This Agreement may be executed in two or more counterparts and all counterparts
so executed shall for all purposes constitute one agreement binding on all of
the parties hereto, notwithstanding that all parties shall not have executed
the same counterparts. Facsimile and photocopy signatures on this Agreement
shall have the same force and effect as originals.


[SIGNATURE PAGE FOLLOWS]


3





          IN
WITNESS WHEREOF, the parties hereto have executed these presents the day and
year first above written.


	
  

 	
  

 	
  

 
	
  

 	
 EMPIRE STATE LAND
 ASSOCIATES L.L.C.

 
	
  

 	
  

 	
  

 
	
  

 	
 By: Empire State Building
 Associates L.L.C., 

 Member

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name: Peter L. Malkin

 
	
  

 	
 Title: Member

 
	
  

 	
  

 
	
  

 	
 COTY INC.

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name: Michael Fishoff

 
	
  

 	
 Title: Chief Financial
 Officer

 






	
  

 	
  

 	
  

 
	
 STATE OF NEW YORK  )

 	
  

 
	
  

 	
 :

 	
 ss.

 
	
 COUNTY OF
 NEW YORK

 	
 )

 	
  

 


          On
the ___ day of July, 2008, before me, the undersigned, personally appeared
Peter L. Malkin personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person on behalf of which the individual acted, executed the instrument.


	
  

 	
  

 
	
  

 	

 


 
	
  

 	
 Notary Public

 






	
  

 	
  

 	
  

 
	
 STATE OF NEW YORK  )

 	
  

 
	
  

 	
 :

 	
 ss.

 
	
 COUNTY OF NEW YORK

 	
 )

 	
  

 


          On
the ___ day of July, 2008, 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(s) on behalf of which the
individual(s) acted, executed the instrument.


	
  

 	
  

 
	
  

 	

 


 
	
  

 	
 Notary Public

 


4






SCHEDULE A


The Land


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


BEGINNING at the corner formed by the intersection of the southerly
side of 34th Street with the westerly side of 5th Avenue;


THENCE southerly along the westerly side of 5th Avenue 197
feet 6 inches to the northerly side of 33rd Street; 


THENCE westerly along the northerly side of 33rd Street 500
feet;


THENCE northerly and parallel with the westerly side of 5th
Avenue 98 feet 9 inches to the middle line of the block; 


THENCE easterly and parallel with the northerly side of 33rd
Street, 75 feet;


THENCE again northerly and parallel with the westerly side of 5th Avenue and part of the distance through a party wall 98 feet 9
inches to the southerly side of 34th Street;


THENCE easterly along the southerly side of 34th Street 425 feet to the corner
aforesaid, the point or place of BEGINNING.






EXHIBIT 1


Master Lease


          Indenture
of Ground Lease dated 12-21-51 by and between The Prudential Insurance Company
of America, as landlord and Alglan Realty Corporation, Rostev Realty
Corporation and Bentob Realty Corporation as tenants, and recorded 12-21-51 in
Liber 4759 Page 534, as assigned and/or modified pursuant to:


          Modification
of Indenture of Lease between The Prudential Insurance Company of America and
Empire State Building Associates, dated 12-27-61, and recorded 12-27-61 in Liber
5173 Page 49;


          Second
Modification of Indenture of Lease between The Prudential Insurance Company of
America and Empire State Building Associates, dated 2-15-65, and recorded
2-15-65 in Liber 5314 Page 479;


          Agreement
and Declaration by and between The Prudential Insurance Company of America and
Empire State Building Associates, dated 12-6-65, and recorded 12-10-65 in Liber
5353 Page 260.






EXHIBIT 2


Operating Sublease


          Terms,
Covenants, Conditions, Provisions, and Agreements of the Agreement of Sublease
dated 12/27/61 and recorded on 12/27/61 in Liber 5173 Page 155 made by Empire
State Building Associates, as sub-landlord, to Lawrence A. Wien, Harry B.
Helmsley, Martin Weiner Realty Corporation and Parempco Inc., Joint Venturers,
associated under the name of Empire State Building Company, as sub-tenant., and
with respect thereto:


          Terms,
Covenants, Conditions and Provisions of First Modification of Sublease between
Empire State Building Associates, as sublandlord, and Lawrence A. Wien, Harry
B. Helmsley, Wico Trading Corporation and Martin Weiner Realty Corporation,
Joint Venturers associated under the name of Empire State Building Company,
subtenants, (with consent from The Prudential Insurance Company of America)
dated 2/15/65 and recorded on 2/15/65 in Liber 5315 Page 1.


2






EXHIBIT C-3


SUBORDINATION.
ATTORNMENT AND NON-DISTURBANCE AGREEMENT WITH

CAPITAL ONE, N.A.





SUBORDINATION
NON-DISTURBANCE AND ATTORNMENT AGREEMENT


	
  

 
	

 


 
	
  

 
	
 CAPITAL ONE, N.A.

 
	
  

 
	
 - with -

 
	
  

 
	
 COTY INC.

 
	
  

 
	

 


 
	
  

 
	
 PREPARED BY:

 









SUBORDINATION
NONDISTURBANCE AND ATTORNMENT AGREEMENT


          This
Subordination Nondisturbance and Attornment Agreement (being hereinafter
referred to as this “Agreement”) made as of this _____ day of July, 2008,
between CAPITAL ONE, N.A.
a national banking association, successor by merger to North Fork Bank, having
its principal offices at 275 Broadhollow Road, Melville, New York (“Mortgagee”)
and COTY INC., a
Delaware corporation, having an office at Two Park Avenue, New York, New York
10016 (“Tenant”).


W
I T N E S S E T H:


          WHEREAS,
Mortgagee now owns and holds a certain mortgage set
forth on Schedule A annexed hereto (including, without limitation, all
present and future renewals, modifications, consolidations, spreaders,
replacements and extensions thereof, the “Mortgage”), made between Mortgagee
and Empire State Land Associates L.L.C. (“ESLA”) and Empire State Building
Associates L.L.C. (“ESBA”; ESBA and ESLA, collectively, “Mortgagor”), which
Mortgage affects, among other things, (i) that certain parcel of land more
particularly described in Schedule B annexed hereto (the
“Property”) and (ii) the improvements located thereon (the “Building”); and


          WHEREAS,
by lease dated July _____, 2008 (the “Lease”), a true
copy of which has been furnished to Mortgagee, Empire State Building Company
L.L.C. (“Landlord”) has leased and demised to Tenant and Tenant has hired and
taken from Landlord a portion of the Building more particularly described in
the Lease (the “Demised Premises”); and


          WHEREAS,
at the request of Tenant, Mortgagee is willing to
enter into this Agreement with Tenant upon the terms, covenants and conditions
contained herein.


          NOW,
THEREFORE, in consideration of the foregoing premises
and the covenants and agreements hereinafter set forth, the parties hereto
mutually covenant and agree as follows:


          1.
Subject to the provisions hereinafter provided, the Lease and all
rights of Tenant thereunder are and shall be subject and subordinate to the
Mortgage and to each and every advance made or to be made thereunder. The
provisions of this paragraph shall be self-operative and no further instrument
of subordination shall be required or needed. Nevertheless, in confirmation of
such subordination, Tenant shall, at the reasonable request of the holder of
the Mortgage, promptly execute, acknowledge and deliver such further instrument
of subordination as may be required by such holder so long as such instrument
does not increase the obligations and liabilities of Tenant as provided
hereunder.


          2.
As long as no default under the Lease on the part of Tenant then
exists beyond the expiration of any notice and grace period:


                    (a)
Tenant shall not be named or joined as a party defendant in any foreclosure
action or proceeding to collect the debt secured by the Mortgage which may be
instituted or taken by Mortgagee under or in connection with the Mortgage or
any obligation 





secured thereby or by any holder of the Mortgage or by any holder of
any interest in the Mortgage or by any successor or assignee of such interest
(unless required by law); and


                    (b)
Tenant shall not be evicted from the Demised Premises or any part(s) thereof
nor shall Tenant’s leasehold estate or possession of the Demised Premises under
the Lease be terminated or disturbed nor shall any of Tenant’s rights under the
Lease be affected in any way solely by reason of any default under the
Mortgage.


          3. If
Mortgagee or any holder of the Mortgage or any holder of any interest in the
Mortgage or any successor or assignee of any one or more of the foregoing shall
succeed to the rights of Mortgagor or Landlord under the lease, whether through
possession or foreclosure action or delivery of a new deed, then the Lease
shall not terminate and Tenant shall attorn to and recognize the party so
succeeding to Landlord’s rights (such party being hereinafter referred to as
the “Successor Landlord”) as Tenant’s landlord under the Lease and Successor Landlord
shall be conclusively deemed to have accepted such attornment and shall
recognize Tenant as tenant under the Lease. Tenant shall promptly execute and
deliver any instrument that Successor Landlord may reasonably request to
evidence such attornment (so long as such instrument does not increase the
obligations and liabilities of Tenant as provided hereunder). Upon such
attornment the Lease shall continue in full force and effect as, or as if it
were, a direct lease between Successor Landlord and Tenant upon all of the same
terms, conditions and covenants as are set forth in the Lease, except that
Successor Landlord shall not:


                    (a)
be responsible for any monies owing by or on deposit with
Landlord to the credit of Tenant, except to the extent turned over to Successor
Landlord;


                    (b)
be bound by any previous modification or extension of the Lease not expressly
provided for in the Lease such as in Articles 4, 32 and 43 of the Lease or by
any previous prepayment of rent for more than one (1) month, unless such
modification, extension or prepayment shall have been expressly approved in
writing by Mortgagee;


                    (c)
be liable for any act, omission, neglect or default on the part of Landlord
under the Lease, but the foregoing shall not be construed or interpreted as
exculpating Successor Landlord from liability for any damages, fees, costs or
expenses arising out of Successor Landlord’s failure to perform any obligations
of any prior landlord, which failure continues following the date title to the
Property is transferred to Successor Landlord; or


                    (d)
be subject to any claim, counterclaim, defense or setoff which shall have
theretofore accrued to Tenant against Landlord.


          4. No modifications
may be made to the Lease by Landlord and/or Tenant without Mortgagee’s prior
written consent except for any modifications made to the Lease pursuant to the
provisions of Articles 4, 32 and 43 of the Lease. Landlord shall not
unreasonably withhold or delay its consent to any modification of the Lease
requiring Landlord’s consent, provided that such modifications do not
materially alter the economic or other material terms of the Lease.


          5. Tenant
hereby represents and warrants to Mortgagee that as of the date hereof (i)
Tenant is the owner and holder of the tenant’s interest under the Lease, (ii)
the Lease has not been modified or amended, (iii) the Lease is in full force
and effect in accordance with its terms,





(iv) to the best of Tenant’s knowledge, neither Tenant nor Landlord is
in default under any of the terms, covenants or provisions of the Lease which
default has continued beyond the expiration of any applicable cure period, no
event has occurred which but for the passage of time or the giving of notice or
both would constitute an event of default by Tenant or Landlord under the
Lease, (v) neither Tenant nor Landlord has commenced any action or given or
received any notice for the purpose of terminating the Lease, (vi) all rents, additional
rents and other sums due and payable under the Lease have been paid in full and
no rents, additional rents or other sums payable under the Lease have been paid
for more than one (1) month in advance of the due dates thereof, and (vii) to
the best of Tenant’s knowledge, there are no offsets or defenses to the payment
of the rents, additional rents, or other sums payable by Tenant under the
Lease.


          6. Tenant
agrees that if there shall occur any action or omission by Landlord which would
give Tenant the right to terminate the Lease or to claim a partial or total
eviction, Tenant shall not exercise any such right until (i) Tenant has
notified Mortgagee in writing of such act or omission and, provided Mortgagee
shall have notified Tenant of Mortgagee’s intention to cure such act or
omission within thirty (30) days after Mortgagee’s receipt of Tenant’s notice,
(ii) a reasonable period for commencing and curing the remedy of such act or
omission shall have elapsed following the giving of such notice by Tenant
(which reasonable period shall in no event be (x) less than the period to which
Landlord would be entitled under the Lease or otherwise after similar notice to
effect such remedy and (y) more than ninety (90) days after the period to which
Landlord would be entitled under the Lease or otherwise after similar notice to
effect such remedy), and Mortgagee shall have failed, within such reasonable
period, to commence and continue to remedy such act or omission and to cause
the same to be remedied.


          7. This
Agreement may not be discharged or modified orally or in any manner other than
by an instrument in writing specifically referring to this Agreement and signed
by a duly authorized officer or other representative of Mortgagee and by a duly
authorized or other representative of Tenant.


          8. This
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof.


          9. The
covenants and agreements herein contained shall apply to, inure to the benefit
of, and be binding upon Mortgagee, Tenant and their respective successors,
assigns and legal representatives.


          10. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which, together, shall constitute one and the
same instrument.


[SIGNATURE PAGES FOLLOW]





          IN
WITNESS WHEREOF, Mortgagee and Tenant, intended to be
legally bound, have duly executed this Agreement as of the day and year first
above written.


	
  

 	
  

 	
  

 
	
  

 	
 CAPITAL ONE, N.A.

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Name: 

 
	
  

 	
  

 	
 Title: 

 
	
  

 	
  

 
	
  

 	
 COTY INC.

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Michael
 Fishoff

 
	
  

 	
  

 	
 Chief
 Financial Officer

 













	
  

 	
  

 	
  

 
	
 STATE OF NEW YORK

 	
 )

 	
  

 
	
  

 	
 : ss.:

 
	
 COUNTY OF

 	
 )

 	
  

 


          On the
______ day of _______, 2008 before me, the undersigned, personally appeared,
_________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person on behalf of which the individual acted, executed the instrument.


	
  

 	
  

 
	
  

 	

 


 
	
  

 	
 Notary Public

 






	
  

 	
  

 	
  

 
	
 STATE OF NEW YORK

 	
 )

 	
  

 
	
  

 	
 : ss.:

 
	
 COUNTY OF NEW YORK

 	
 )

 	
  

 


          On
the ______ day of July, 2008, before me, the undersigned, personally
appeared MICHAEL FISHOFF, personally known to me or proved to me on the basis
of satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person on behalf of which the individual acted, executed the instrument.


	
  

 	
  

 
	
  

 	

 


 
	
  

 	
 Notary Public

 


2





SCHEDULE
A - MORTGAGE CHAIN


	
  

 	
  

 
	
 1.

 	
 Mortgage and Security Agreement dated June 28, 1994 in the principal
 amount of $11,700,000.00 made by Trump Empire State Partners to Principal
 Mutual Life Insurance Company and recorded July 1, 1994 in Reel 2111 Page
 2049 in the Office of the City Register, New York County;

 
	
  

 	
  

 
	
  

 	
 Mortgage Tax Paid: $321,750.00

 
	
  

 	
  

 
	
  

 	
 Which mortgage was assigned by Principal Mutual Life Insurance
 Company to North Fork Bank by Assignment of Mortgage dated as of April 9,
 2002 and recorded April 26, 2002 in Reel 3500 Page 805 in the Office of the
 City Register, New York County;

 
	
  

 	
  

 
	
  

 	
 which mortgage was spread to encumber the Leasehold Estate in the
 Mortgaged Property by Spreader Agreement dated as of April 17, 2002 made by
 and between Empire State Building Associates L.L.C. and Empire State Land
 Associates L.L.C. to North Fork Bank and recorded April 26, 2002 in Reel 3500
 Page 810 in the Office of the City Register, New York County

 
	
  

 	
  

 
	
 2.

 	
 Mortgage dated as of April 17, 2002 made by Empire State Building
 Associates L.L.C. and Empire State Land Associates L.L.C. to North Fork Bank
 in the principal sum of $48,800,000.00 and recorded April 26, 2002 in Reel
 3500 Page 819 in the Office of the City Register, New York County;

 
	
  

 	
  

 
	
  

 	
 Mortgage Tax Paid: $1,342,000.00;

 
	
  

 	
  

 
	
  

 	
 Which two (2) mortgages were consolidated to form a single lien of
 $60,500,000.00 by Consolidation and Extension Agreement dated as of April 17,
 2002 made by and among Empire State Building Associates L.L.C. and Empire
 State Land Associates L.L.C. and North Fork Bank and recorded April 26, 2002
 in Reel 3500 Page 831 in the Office of the City Register, New York County;

 
	
  

 	
  

 
	
  

 	
 Which two (2) mortgages, as consolidated, were modified by unrecorded
 Modification Agreement dated as of November 1, 2006 made by and among Empire
 State Building Associates L.L.C. and Empire State Land Associates L.L.C. and
 North Fork Bank.

 


3





SCHEDULE
B - LEGAL DESCRIPTION


SCHEDULE
A


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


BEGINNING at the corner formed by the intersection of the southerly
side of 34th Street with the westerly side of 5th Avenue;


THENCE southerly along the westerly side of 5th Avenue 197
feet 6 inches to the northerly side of 33rd Street;


THENCE westerly along the northerly side of 33rd Street 500
feet;


THENCE northerly and parallel with the westerly side of 5th
Avenue 98 feet 9 inches to the middle line of the block;


THENCE easterly and parallel with the northerly side of 33rd
Street, 75 feet;


THENCE again northerly and parallel with the westerly side of 5th
Avenue and part of the distance through a party wall 98 feet 9 inches to the
southerly side of 34th Street;


THENCE easterly along the southerly side of 34th Street 425
feet to the corner aforesaid, the point or place of BEGINNING.


Said premises known as: 350 Fifth Avenue, New York, N.Y.


4






EXHIBIT D


to lease


between


Empire State Building Company L.L.C.,
Landlord


and


Coty Inc., Tenant


List of Approved Contractors









	
  

 	
  

 	
  

 
	
  

 	
 Empire State Building

 	
 Page 1 of 13

 






ACM Removal


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 NAME

 	
  

 	
 ADDRESS

 	
  

 	
 TELEPHONE

 	
  

 	
 FAX

 	
  

 	
 CONTACT

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
 Abatement Unlimited, Inc.

 	
  

 	
 666 Third
 Avenue, Arcade Level

 Suite ARH

 New York, NY 10017

 	
  

 	
 (212)
 661-0325

 	
  

 	
 (212)
 661-8174

 	
  

 	
 Bill
 McKenzie

 Charles (917) 731-5395

 abatementunltd@aol.com

 
	
 Affiliated Environmental

 	
  

 	
 450 South
 River Street

 Hackensack, NJ 07601

 	
  

 	
 (201)
 931-0313

 	
  

 	
 (201)
 931-0318

 	
  

 	
 Rene Repreza

 (201) 538-2249

 
	
 Complete Environmental Services

 	
  

 	
 3500A
 Hampton Road

 Oceanside, NY 11572

 	
  

 	
 (516)
 766-7900

 	
  

 	
 (516)
 766-5515

 	
  

 	
 Louis Forese

 
	
 DSA Services, Inc.

 	
  

 	
 800 East
 Elizabeth Avenue

 Linden, NJ 07036

 	
  

 	
 (908)
 925-5855

 	
  

 	
 (908)
 925-5998

 	
  

 	
 Anthony
 Frassetti

 Panos Yalamas

 (917) 578-7239

 
	
 Ken Burns Action Environmental

 	
  

 	
 3010 Burns
 Avenue

 Wantagh, NY 11793

 	
  

 	
 (516)
 781-3000

 	
  

 	
 (516)
 781-3085

 	
  

 	
 Ken Burns

 (516) 972-1118

 
	
 PAL

 	
  

 	
 11-02 Queens
 Plaza South

 LIC, NY 11101

 	
  

 	
 (718)
 349-0900

 	
  

 	
 (718)
 349-2800

 	
  

 	
 Sanford
 Alper

 
	
 PAR Environmental

 	
  

 	
 313 Spook
 Rock Road

 Suffern, NY 10901

 	
  

 	
 (845)
 369-7500

 	
  

 	
 (845)
 369-6682

 	
  

 	
 Mary Velez

 
	
 Shannon Abatement

 	
  

 	
 14
 Highbridge Road

 Stony Point, NY 10980

 	
  

 	
 (845)
 429-4346

 	
  

 	
 (845)
 947-1030

 	
  

 	
 Martin
 Butler

 













	
  

 	
  

 	
  

 
	
  

 	
 Empire State Building

 	
 Page 2 of 13

 






Air Monitoring


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 NAME

 	
  

 	
 ADDRESS

 	
  

 	
 TELEPHONE

 	
  

 	
 FAX

 	
  

 	
 CONTACT

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
 Advanced Environmental

 	
  

 	
 347 Fifth
 Avenue, Suite 404

 New York, NY 10016

 	
  

 	
 (212)
 545-1855

 	
  

 	
 (212)
 545-0757

 	
  

 	
 Ed Nameth

 
	
 Applied Geo Services

 	
  

 	
 875 Avenue
 of the Americas

 Suite 1103

 New York, NY 10001

 	
  

 	
 (212)
 868-1113

 	
  

 	
 (212)
 868-8307

 	
  

 	
 Joseph
 Bonder

 
	
 Asbestos Control Consultants

 	
  

 	
 1302 Walnut
 Avenue

 Bohemia, NY 11716

 	
  

 	
 (631)
 589-3666

 	
  

 	
 (631)
 589-4004

 	
  

 	
 Anthony
 Norwicki

 
	
 Environmental Building Solutions

 	
  

 	
 295 Madison
 Avenue

 New York, NY 10017

 	
  

 	
 (646)
 290-5925

 	
  

 	
 (212)
 867-9715

 	
  

 	
 John Leitner

 
	
 Empire Environmental, Ltd.

 	
  

 	
 39 Old Lane

 Towaco, NJ 07082

 	
  

 	
 (973)
 334-5641

 	
  

 	
 (973)
 334-3508

 	
  

 	
 James R.
 Boggi

 
	
 Hygienetics Environmental

 	
  

 	
 151 West
 25th Street,

 Sixth Floor

 New York, NY 10001

 	
  

 	
 (212)
 414-8649

 	
  

 	
 (212)
 414-9658

 	
  

 	
 Jeff Bodell

 
	
 Landmark Consultants, Inc.

 	
  

 	
 350 Fifth
 Avenue, Suite 4914

 New York, NY 10118

 	
  

 	
 (212)
 967-2484

 	
  

 	
 (212)
 967-2499

 	
  

 	
 Jason Terhue

 Andrew Gasparro

 
	
 Pure Solutions

 	
  

 	
 303 Fifth
 Avenue, Suite 401

 New York, NY 10016

 	
  

 	
 (212)
 643-8548

 	
  

 	
 (212)
 643-8781

 	
  

 	
 Jack Rathgeb

 













	
  

 	
  

 	
  

 
	
  

 	
 Empire State Building

 	
 Page 3 of 13

 


Demolition


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 NAME

 	
  

 	
 ADDRESS

 	
  

 	
 TELEPHONE

 	
  

 	
 FAX

 	
  

 	
 CONTACT

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
 Liberty

 Demolition

 	
  

 	
 2531 94th
 Street

 N. Bergen, NJ 07047

 	
  

 	
 (201)
 488-9300

 	
  

 	
 (201)
 868-4238

 	
  

 	
 George
 Fotadis

 
	
 Metro Demolition

 	
  

 	
 55-14 Grand
 Avenue

 Maspeth, NY 11378

 	
  

 	
 (718)
 326-8450

 	
  

 	
 (718)
 326-0375

 	
  

 	
 Dennis
 Halpern

 
	
 Tri-State

 Dismantling

 	
  

 	
 207 Dupont
 Street

 Brooklyn, NY 11222

 	
  

 	
 (718)
 349-2552

 	
  

 	
 (718)
 349-0289

 	
  

 	
 Richard
 Flamio

 
	
 Waldorf Carting

 	
  

 	
 50 E.
 Palisade Avenue

 Suite 111

 Englewood, NJ 07631

 	
  

 	
 (201)
 541-0030

 	
  

 	
 (201)
 541-0071

 	
  

 	
 James G.

 Marrone/

 Paul

 (917) 337-1134

 













	
  

 	
  

 	
  

 
	
  

 	
 Empire State Building

 	
 Page 4 of 13

 



Electrical Contractors


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 NAME

 	
  

 	
 ADDRESS

 	
  

 	
 TELEPHONE

 	
  

 	
 FAX

 	
  

 	
 CONTACT

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
 Bigman Brothers, Inc.

 	
  

 	
 43-40 34th
 Street

 LIC, NY 11101

 	
  

 	
 (718)
 786-1421

 	
  

 	
 (718)
 786-1632

 	
  

 	
 Thomas
 Terino

 
	
 EJ Electric

 	
  

 	
 46-41 Vernon
 Boulevard

 LIC, NY 11101

 	
  

 	
 (718)
 786-9400

 	
  

 	
 (718)
 786-1001

 	
  

 	
 Larry Cohen

 (212) 564-8886

 (917) 559-3431

 
	
 JJ Rosenberg

 	
  

 	
 27 Herkimer
 Place

 Brooklyn, NY 11216

 	
  

 	
 (718)
 638-4544

 	
  

 	
 (718)
 638-4979

 	
  

 	
 Anthony
 Grillo

 Adrian (917) 560-5695

 
	
 Lite Tron Electric 

 	
  

 	
 236 West
 26th Street

 New York, NY 10001

 	
  

 	
 (212)
 741-6326

 	
  

 	
 (212)
 627-5825

 	
  

 	
 Fred Iannacone

 













	
  

 	
  

 	
  

 
	
  

 	
 Empire State Building

 	
 Page 5 of 13

 


Exterminators


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 NAME

 	
  

 	
 ADDRESS

 	
  

 	
 TELEPHONE

 	
  

 	
 FAX

 	
  

 	
 CONTACT

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
 Assured Enviroments

 	
  

 	
 45 Broadway
 8th Floor

 New York, NY 10006

 	
  

 	
 (212)-709-7218

 	
  

 	
 (212)
 480-5900

 	
  

 	
 Enver
 Mahmutovic (Account Executive)

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (212)
 480-5800

 	
  

 	
  

 	
 emahmutovic@assuredenvironments.com

 













	
  

 	
  

 	
  

 
	
  

 	
 Empire State Building

 	
 Page 6 of 13

 



Flooring Carpet Contractors


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 NAME

 	
  

 	
 ADDRESS

 	
  

 	
 TELEPHONE

 	
  

 	
 FAX

 	
  

 	
 CONTACT

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
 Alliance Carpet & Tile 

 	
  

 	
 235 West 35th
 Street, Suite 505

 New York, NY 10001

 	
  

 	
 (212)
 465-9115

 	
  

 	
 (212)
 465-9148

 	
  

 	
 Mike Bailey

 
	
 Commercial Floors Beautiful

 	
  

 	
 125
 Personette Avenue

 Berona, NJ 07044

 	
  

 	
 (973)
 571-0462

 	
  

 	
 (973)
 571-0463

 	
  

 	
 Tony
 Parrillo

 
	
 S&G Flooring

 	
  

 	
 47-14 32nd
 Place

 LIC NY 11101

 	
  

 	
 (718)
 784-6063

 	
  

 	
 (718)
 784-6065

 	
  

 	
 Stephen
 Drago

 










EXHIBIT D-1


to lease


between


Empire State Building Company L.L.C.,
Landlord


and


Coty Inc., Tenant


List of Approved Contractors for Tenant’s
Initial Installation Work













EXHIBIT E


to lease


between


Empire State Building Company L.L.C.,
Landlord


and


Coty Inc., Tenant


Sample Escalation Statement


	
  

 	
  

 	
  

 
	
 350 Fifth
 Avenue

 
	
  

 	
  

 	
  

 
	
  

 	
 2008
 Estimated Operating Expenses

 
	
  

 	
  

 	
  

 
	
  

 	
 1.

 	
 Cleaning

 
	
  

 	
 2.

 	
 General
 & Administrative

 
	
  

 	
 3.

 	
 Insurance

 
	
  

 	
 4.

 	
 Management
 Fees

 
	
  

 	
 5.

 	
 Professional
 Fees

 
	
  

 	
 6.

 	
 Repairs
 & Maintenance

 
	
  

 	
 7.

 	
 Labor

 
	
  

 	
 8.

 	
 Security

 
	
  

 	
 9.

 	
 Electricity

 
	
  

 	
 10.

 	
 Steam

 
	
  

 	
 11.

 	
 Water &
 Sewer & Steam Condensate

 
	
  

 	
 12.

 	
 Capital
 Expenditures (which are permitted to be passed on to tenants)

 
	
  

 	
 13.

 	
 Payments to
 Affiliates

 
	
  

 	
  

 	
  

 
	
 TOTAL

 










EXHIBIT F


to lease


between


Empire State Building Company L.L.C.,
Landlord


and


Coty Inc., Tenant


Certificate of Occupancy



























EXHIBIT G


to lease


between


Empire State Building Company L.L.C.,
Landlord


and


Coty Inc., Tenant


Option Space/ROFO Space






[Floor Plan]






[Floor Plan]






[Floor Plan]






[Floor Plan]






[Floor Plan]






EXHIBIT H


to lease


between


Empire State Building Company L.L.C.,
Landlord


and


Coty Inc., Tenant


Building Improvement Program





ESB
Capital Improvement Descriptions


Restroom Renovations


Over 200 restrooms are being (or have been) upgraded with new low-flow
fixtures and more efficient lighting and lighting controls. Low-flow fixtures
include Sloan 0.5gpm motion-detecting lavatories, Sloan 1.6gpf automatic flush
toilets, and 1.0gpf urinals. The lighting retrofit involved the installation of
2’x2’ luminaires with paracube louvers. All restrooms are being outfitted with
occupancy sensors to control both lighting and exhaust.


On-going AHU
Replacement (45 units/year)


Each tenant floor has between 4 and 10 constant volume (6,000 cfm) “Petra”
air-handling units that are typically 180,000 btuh (15 tons). These units are
all ceiling mounted and have ducted outside air and air return. These units are
being replaced with more efficient variable air volume units at a rate of 45
units/year.


Lobby Master Plan


This project includes the restoration of the landmark art deco lobby
and ceiling mural, the creation of office tenant- and visitors-only entrances
on 34th and 33rd Streets along with a new concierge desk for office tenants and
visitors. There is a master plan approval for storefront standards for interior
and exterior retail storefront windows and finishes, including new retail
signage and tenant repositioning. New chandelier design over the two lobby
bridges, and a new art glass piece behind the concierge desk are also new
elements to this restoration project. The lighting design includes dimmable
ballast for all linear fluorescents, which will operate the new lighting system
in three modes: daytime, night, and late night, and early morning security.


Corridor Renovation
Project


This project addresses all multi-tenant floors and most elevator
crossover floors, roughly 55 Floors of corridor space. This includes original
marble wall restoration work and carpet installation in the elevator lobbies. Similar
work is being done in the main corridors, but also includes new ceilings and
lighting. HVAC is to be provided to each corridor as the renovation progresses.


1





Additional Electric
Power & Switchboard Equipment


This project includes modifications to the building’s electrical
infrastructure so more power can be brought into the building from Con Ed and
distributed within the building to the existing sub-stations. The substations
will also be renovated with newer equipment.


Mid-Pressure
Steam Riser Replacement


The building has a medium pressure steam riser to service domestic hot
water generators located on various floors. This project includes replacing the
entire riser in a productive and cost effective process to reduce maintenance
expense and the associated service interruptions.


Fire
Alarm Upgrade


ESB is considering a major system overhaul to the fire command station
and its infrastructure through the building. This would provide for additional
capacity and provide compatibility with state of the art fire system
technology.


Local
Law 11 (and Building Re-caulking)


This project is largely a waterproofing/re-caulking project of every
joint on the building’s exterior – limestone and/or windows. This includes
grinding-out the existing caulking and cleaning the joints, then re-installing
new backing and caulking. While performing this work, ESB decided to include
any minor Local Law #11 (stone) work.


Domestic
Water Valve Replacement


The domestic water distribution system incorporates branch runs at each
floor. This program will include replacing all of the existing valves with new
ones.


Replacement
of Sewage Ejectors


The sewage ejectors work in the lowest points of the building and
include float operated duplex pump sets. The existing ejectors will be replaced
and new sets are scheduled to be installed.


Local
Law 26


This New York law calls for ESB to have full sprinkler coverage by
2019. ESB has completed the house tank conversion, drain riser installation,
and standpipe-combination.


2





Elevator Modernization


This project includes upgrades to the current solid-state controllers
and drives to state of the art technology.


Renovation
of 150 Electrical Closets


This project includes the renovation of the buildings electrical
closets replacing current distribution panels with circuit breaker distribution
centers.


3






EXHIBIT I


to lease


between


Empire State Building Company L.L.C., Landlord


and


Coty Inc., Tenant


Building Standard “White Box” Condition Specifications


	
  

 	
  

 
	
 1.1

 	
 Completely demise all
 “white box” multi-tenant floors per drawing.

 
	
  

 	
  

 
	
 1.2

 	
 All new demising walls and
 any walls to remain as demising walls are to be upgraded as necessary to
 conform to “ESB standard” 2-HR rated demising partition - (2) layers GWB each
 side to deck. Demising walls at public corridors to be block construction to
 match ESB standard.

 
	
  

 	
  

 
	
 1.3

 	
 Furnish and install any
 missing access doors, in particular at wet columns. 

 
	
  

 	
  

 
	
 1.4

 	
 Radiators are to receive
 new valves, traps, and controls as required.

 
	
  

 	
  

 
	
 1.5

 	
 Furnish and install
 building standard radiator covers, sized to fit each window. 

 
	
  

 	
  

 
	
 1.6

 	
 Provide troweled-on, 2-HR
 rated fire proofing at all exposed steel.

 
	
  

 	
  

 
	
 1.7

 	
 Fill all holes in
 deck/slab with concrete. Ceiling slab to be skim coated as required to
 achieve finish level 8-10.

 
	
  

 	
  

 
	
 1.8

 	
 All columns, beams,
 soffits, exterior walls/columns, and window perimeters to be laminated with
 GWB to provide new straight/true enclosures which achieve finish level 8-10.

 
	
  

 	
  

 
	
 1.9

 	
 All core walls to be skim
 coated or laminated as required to achieve finish level 8-10. 

 
	
  

 	
  

 
	
 1.10

 	
 Existing concrete floors
 to be shot blasted and flash patched as necessary to achieve finish level
 7-8.

 
	
  

 	
  

 
	
 1.11

 	
 All paint to be Benjamin
 Moore Aura, white, flat on all GWB surfaces/ semi-gloss on all trim and metal
 surfaces (except conduit).

 
	
  

 	
  

 
	
 1.12

 	
 All columns, walls, and
 soffits including surface mounted conduit to be painted two coats.

 
	
  

 	
  

 
	
 1.13

 	
 Deck/slab above and beams
 including surface mounted conduit to be painted Benjamin Moore Aura, flat,
 white.

 
	
  

 	
  

 
	
 1.14

 	
 All newly installed items
 to be primed prior to painting.

 
	
  

 	
  

 
	
 1.15

 	
 All surface mounted
 conduit to be painted to match adjacent surface.

 
	
  

 	
  

 
	
 1.16

 	
 All new radiator covers to
 be painted semi-gloss, white by convector cover vendor.

 
	
  

 	
  

 
	
 1.17

 	
 On all non-multi tenant
 floors, freight elevator door, doors to freight elevator lobby, electrical
 closet doors, and janitor closet doors to be painted Pratt & Lambert
 water based, #1481, semi-gloss.

 
	
  

 	
  

 
	
 1.18

 	
 Protect all green control
 wiring, red fire alarm wiring, receptacles, switches, thermostats, sprinkler
 heads, and radiator tops from paint splatter or overspray.

 













	
  

 	
  

 	
  

 
	
 1.19

 	
 All remaining or new
 junction boxes to have code compliant covers installed.

 
	
  

 	
  

 
	
 1.20

 	
 Reinstall/relocate any
 public corridor exit signs that were disturbed during demolition in same
 general location.

 
	
  

 	
  

 
	
 1.21

 	
 Furnish and install new
 exit signs with battery pack as required by code, quantity and locations per
 drawing:

 
	
  

 	
  

 
	
  

 	
  

 	
 Mfr: The Exit Store,
 www.theexitstore.com or

 
	
  

 	
  

 	
                      1-877-305-0898

 
	
  

 	
  

 	
 Model:          VA4-R-SA

 
	
  

 	
  

 
	
 1.22

 	
 Reinstall/relocate any
 fire alarm horn/strobes disturbed by demolition in same general location.

 
	
  

 	
  

 
	
 1.23

 	
 Update existing electrical
 panel directory.

 
	
  

 	
  

 
	
 1.24

 	
 Paint home run box orange
 and label with closet, panel, and circuit numbers.

 


11






EXHIBIT J


to lease


between


Empire State Building Company L.L.C.,
Landlord


and


Coty Inc., Tenant


Building Standard Common Corridor
Specifications


	
  

 	
  

 	
  

 
	
 Elevator Banks: 

 
	
  

 	
 •

 	
 Gypsum,
 ribbed border ceiling with American Glass pendant chandelier and downlights.

 
	
  

 	
 •

 	
 Branch
 sprinkler line for the floor, including heads as per code in completed
 corridor.

 
	
  

 	
 •

 	
 HVAC
 supplied to corridor, within code requirements.

 
	
  

 	
 •

 	
 Benjamin
 Moore white, as per ESB, for ceiling and elevator doors.

 
	
  

 	
 •

 	
 Walls are to
 be refinished with the full height marble/limestone (typically covered by a
 previous wallpaper installation), refinished and re-grouted with approved
 grout coloring, as per ESB.

 
	
  

 	
 •

 	
 Milliken
 carpet tile is to be installed in elevator bank lobbies, with the main field
 pattern and border pattern.

 
	
  

 	
  

 	
  

 
	
 Corridors: 

 
	
  

 	
 •

 	
 Ceiling is a
 2x2 grid system, as per ESB standards.

 
	
  

 	
 •

 	
 Lighting is
 2x2 Lightolier lay-in fixture, as per ESB standards.

 
	
  

 	
 •

 	
 HVAC
 registers/returns are 2x2 lay-in, as per ESB standards.

 
	
  

 	
 •

 	
 Walls
 include marble/limestone wainscoting to be refinished and re-grouted as in
 the elevator lobby; above wainscoting wallpaper to be installed: “JM Lynne
 Design Tex Byzantine stripe - BYS-105 Driftwood.”

 
	
  

 	
 •

 	
 Carpet is
 same Milliken carpet tile, but the field is a pattern — not what is installed
 in elevator banks — border is to be determined pursuant to final design.

 
	
  

 	
  

 	
  

 
	
 Miscellaneous:

 
	
  

 	
 •

 	
 Fire alarm
 devices are to be installed per code, replacing speaker/strobes to white.

 
	
  

 	
 •

 	
 Mail chutes
 are to be restored to their original finish.

 
	
  

 	
 •

 	
 Core door
 hardware is to be replaced to the new ESB standard hardware.

 










EXHIBIT K


to lease


between


Empire State Building Company L.L.C.,
Landlord


and


Coty Inc., Tenant


Entrance Door and Signage Specifications









	
  

 
	
 EMPIRE STATE BUILDING

 
	
 350 FIFTH AVENUE, SUITE 3210

 
	
 NEW YORK, NEW YORK 10118

 
	
 TEL. 212-736-3100 / FAX. 212-967-6167

 
	
  

 
	

 


 
	
  

 
	
 DENNIS A. PATCH, CONSTRUCTION MANAGER

 
	
  

 
	
 MEMORANDUM

 






	
  

 	
  

 
	
 DATE:

 	
 September
 12, 2007

 
	
  

 	
  

 
	
 TO:

 	
 Tenant

 
	
  

 	
  

 
	
 FROM:

 	
 Dennis A.
 Patch

 
	
  

 	
  

 
	
 RE:

 	
 New Building Standard Tenant Entrance Door Signs

 
	
  

 	
  

 
	

 


 


The Empire State Building has standardized all tenant entrance door
signs. Additionally we have standards for the location of the new tenant
entrance door sign. Please find-attached drawings indicating the size and style
of sign and also the location where they will be installed depending on the
type of entrance door(s).


Please contact Joseph Fleischer from New Style Signs at 212-242-7848
for a price quote. The base cost for the stainless steel 12”x 12” tenant
entrance door sign is $196.62 which will include standard border engraving,
suite number and 1 line for company name. Additional lines will cost $10.00.
The cost for the sign does not include sales tax, shipping costs or
installation. The tenant entrance door signs can only be purchased from New
Style Signs.


You may request an installation price from New Style Signs or from the
Empire State Building, Tenant Services Department (212) 400-3350.


Sincerely,


Dennis A.
Patch


CONSTRUCTION
MANAGER





EMPIRE
STATE BUILDING STANDARDS FOR ENTRANCE DOORS

DATE: 10/15/07


Tenant shall furnish and install new 3’ x 7’ x 1 3⁄4” Pre-finish solid
core wood walnut veneer fire-rated 90 minutes ‘B’ labeled door. Provide
matching in-active leaf where noted, as required. New doorframe to be welded
hollow metal fire rated labeled doorframe, double rabbetted. NEW PRE-FINISH ENTRY WOOD DOOR MUST BE FABRICATED BY:
“DOOR STOP”, CONTACT: RONNIE NAPOLI, TEL: 718-599-5112. Entry
wood doors to have hardware cut-outs from factory/shop for mail slot, hardware,
etc. w/8”H. internal solid top rail for surface door closer installation.
Finish wood doors to match control sample. Finish wood door edge to have same
wood veneer finish. Under cut of door to be no more than 3/8” above finished
saddle. Saddle to be 1⁄2” thick. All marble and wall covering work by tenant.


	
  

 	
  

 	
  

 
	
 The following entry door(s) hardware shall be furnished and
 installed:

 
	
  

 	
 A.

 	
 “LCN” 4040 series heavy duty door closer, pull side non-hold open
 with metal cover w/stainless steel finish, US26D. Must include back plate and
 thru- bolts.

 
	
  

 	
 B.

 	
 “STANLEY” FBB168 Series 4-1/2” x 4-1/2” full bearing Mortis 3
 Knuckles hinges. (1)Hinge must be an electric hinge.

 
	
  

 	
 C.

 	
 “CORBIN RUSSWIN” ML2000 Series Mortise Lockset, Item No. ML2051- MR.
 Lever handle: Citation, Escutcheon Plate: CSM, Cylinder 6-Pin Jumbo Master
 Cylinder w/ Cylinder Collar. Keyway: Corbin Russwin, 57B-2 from 85th
 to 41st floors. Corbin Russwin, 57A-1 from 40th to
 lobby floors.

 
	
  

 	
 D.

 	
 “IVES” Mail Slot #620 Spring Loaded front plate open back plate with
 #601 sleeve.

 
	
  

 	
 E.

 	
 “IVES” #FS17 floor mounted dome doorstop.

 
	
  

 	
 F.

 	
 “IVES” #RS64 Grey rubber door silencers.

 
	
  

 	
 G.

 	
 “PEMKO” #171B Stainless Steel Door Saddle.

 
	
  

 	
 H.

 	
 “IVES” #FB457UL US26D Top/Bottom Manual Flush Bolts. (For in-active
 Leaf.)

 
	
  

 	
 I.

 	
 1/8”thk. Full HT. Wood laminated metal door astragal. (For in-active
 leaf.)

 
	
  

 	
 J.

 	
 “CORBIN” Mortise Lockset strike plate.

 
	
  

 	
 K.

 	
 “Door Button & Chime-’Nutone’ wired chime kit w/one lighted
 button. Model CD 115WHBULK. Color: White. Mount chime kit 3” below finished
 ceiling. Install recessed lighted button at handle side of door. Provide
 round stainless steel lighted door bell button 48” A.F.F.

 
	
  

 	
 L.

 	
 12” x 12” Stainless Steel building door sign. Contact “New Style
 Signs” Joseph Fleischer at (212)-242-7848.

 


Note: All door hardware finishes including
door closer, mail slot & saddle are to be stainless steel, (US26D). Submit
door & hardware schedule & specifications (cut sheets) for review &
approval prior to ordering.






[Floor Plan]






[Floor Plan]






[Floor Plan]



















SCHEDULE
A


RULES AND REGULATIONS


	
  

 	
  

 
	
 1.

 	
 No animals, birds, bicycles or vehicles shall be brought into or kept
 in the demised premises. Tenant shall not cause or permit in the demised
 premises any disturbing noises which may unreasonably interfere with
 occupants of the building or any neighboring building, any cooking or
 objectionable odors, or any nuisance of any kind, or any inflammable or
 explosive fluid, chemical or substance. Canvassing, soliciting and peddling
 in the building are prohibited, and Tenant shall cooperate so as to prevent
 the same.

 
	
  

 	
  

 
	
 2.

 	
 The toilet rooms and other water apparatus shall not be used for any
 purposes other than those, for which they were constructed, and no sweepings,
 rags, ink, chemicals or other unsuitable substances shall be thrown therein.
 Tenant shall not throw anything out of doors, windows or skylights or into
 hallways, stairways or elevators, nor place food or objects on outside
 windowsills. Tenant shall not obstruct or cover the halls, stairways and
 elevators, or use them for any purpose other than ingress and egress to or
 from the demised premises, nor shall skylights, windows, doors and transoms
 that reflect or admit light into the building be covered or obstructed in any
 way.

 
	
  

 	
  

 
	
 3.

 	
 Tenant shall not place a load upon any floor of the demised premises
 in excess of the load per square foot, which such floor was designed to carry
 and which is allowed by law. Landlord reserves the right to prescribe the
 weight and position of all safes in the demised premises. Smoking or carrying
 lighted cigars, pipes or cigarettes in the elevators of the building is
 prohibited. If the demised premises are on the ground floor of the building,
 Tenant, at its expense, shall keep the sidewalks and curb in front of the
 demised premises clean and free from ice, snow, dirt and rubbish.

 
	
  

 	
  

 
	
 4.

 	
 Tenant shall not move any heavy or bulky materials into or out of the
 building without Landlord’s prior written consent, and then only during such
 hours and in such manner as Landlord shall reasonably approve. If any material
 or equipment requires special handling, Tenant shall employ only persons
 holding a Master Rigger’s License to do such work, and all such work shall
 comply with all legal requirements. Landlord reserves the right to inspect
 all freight to be brought into the building, and to exclude any freight which
 violates any rule, regulation or other provision of this lease.

 
	
  

 	
  

 
	
 5.

 	
 No sign, advertisement, notice or thing shall be inscribed, painted
 or affixed on any part of the building outside of the demised premises,
 without the prior written consent of Landlord. Landlord may remove anything
 installed in violation of this provision, and Tenant shall pay the cost of
 such removal.

 
	
  

 	
  

 
	
 6.

 	
 Intentionally Deleted.

 













	
  

 	
  

 
	
 7.

 	
 No existing locks shall be changed, nor shall any additional locks or
 bolts of any kind be placed upon any door or window by Tenant, without the
 prior written consent of Landlord. At the termination of this lease, Tenant
 shall deliver to Landlord all keys for any portion of the premises or building.
 Before leaving the premises at any time, Tenant shall close all windows and
 close and lock all doors.

 
	
  

 	
  

 
	
 8.

 	
 No Tenant shall purchase or obtain for use in the premises any spring
 water, ice, towels, food, boot blacking, barbering, or other such services furnished
 by any company or person not approved by Landlord, which approval shall not
 be unreasonably withheld, conditioned or delayed. Any necessary exterminating
 work in the premises shall be done at Tenant’s expense, at such times, in
 such manner as Landlord shall reasonably require. Landlord reserves the right
 to exclude from the building, from 6:00 p.m. to 8:00 a.m., and at all hours
 on Sunday and legal holidays, all persons who do not present a pass to the
 building signed by Landlord. Landlord will furnish passes to all persons
 reasonably designated (in writing) by Tenant, including, without limitation,
 to up to an aggregate of fifty (50) regular customers of Tenant and/or
 officers who have offices in other locations. Tenant shall be responsible for
 the acts of all persons to whom passes are issued at Tenant’s request.

 
	
  

 	
  

 
	
 9.

 	
 Except in connection with Tenant’s Initial Installation Work,
 whenever Tenant shall submit to Landlord any plan, agreement or other
 document for Landlord’s consent or approval, Tenant agrees to pay Landlord,
 as additional rent, within thirty (30) days after demand, the reasonable
 out-of-pocket fees of any architect, engineer or attorney employed by
 Landlord review said plan, agreement or document.

 
	
  

 	
  

 
	
 10.

 	
 The use in the demised premises of auxiliary heating devices, such as
 portable electric heaters, heat lamps or other devices whose principal
 function at the time of operation is to produce space heating, is prohibited.

 


          In case of
any conflict or inconsistency between any provisions of this lease and any of
the rules and regulations as originally or as hereafter adopted, the provisions
of this lease shall control.


2





EMPIRE STATE BUILDING COMPANY L.L.C.

350 Fifth Avenue, Third Floor

New York, New York 10118


July 14, 2008


Coty Inc.

Two Park Avenue

New York, New York 10016


	
  

 	
  

 	
  

 
	
  

 	
 Re:

 	
 Empire State
 Building, New York, New York

 



Ladies and
Gentlemen:


          Reference
is hereby made to that certain proposed lease between Empire State Building
Company L.L.C., as landlord (“Landlord”) and Coty Inc., as tenant (“Tenant”),
covering certain space (the “demised premises”) consisting of the entire
rentable area of the 14th floor, and a portion of the 15th
floor, of the building (“Building”) known as the Empire State Building, 350
Fifth Avenue, New York, New York (which lease is hereinafter called the
“Lease”).


          Capital
One, N.A. (“Capital One”), the holder of the mortgage currently encumbering the
Building (the “Capital One Mortgage”), is not willing to assume responsibility
for the payment of any unpaid portion of Landlord’s Contribution (as such term
is defined in Article 23C(iii) of the Lease) if Capital One succeeds to the
interest of Landlord under the Lease, notwithstanding its agreement to enter
into a non-disturbance agreement with Tenant. Tenant is not willing to execute
and deliver the Lease unless and until Landlord provides Tenant with adequate
security for the payment of any portion of Landlord’s Contribution remaining
unpaid if, as and when Capital One succeeds to the interest of Landlord under
the Lease. As an inducement to Tenant to execute and deliver the Lease,
Landlord is willing to provide such adequate security by depositing the amount
of Landlord’s Contribution (i.e., $5,998,300.00) into escrow, in accordance with
the terms and conditions hereinafter set forth.


          Therefore,
it is hereby agreed as follows:


          1.
Capitalized terms not defined herein shall have the meanings ascribed to such
terms in the Lease.


          2.
Simultaneously with the execution and delivery of this letter agreement by
Landlord and Tenant, Landlord deposited the sum of $5,998,300.00 (the “Escrow
Deposit”) with Landlord’s attorneys, David J. Bleckner, P.C. (“Escrowee”),
which shall 





hold such sum in escrow, in an interest bearing attorney escrow account
at Citibank, N.A. (or another bank selected by Escrowee, notice of which shall
be given to Landlord and Tenant), in accordance with the terms and conditions
of this letter agreement.


          3. The
Escrow Deposit shall be disbursed by Escrowee as follows:


                    A.
If, following Capital One’s succeeding to Landlord’s interest under the Lease,
Capital One shall refuse to pay any unpaid portion of Landlord’s Contribution
(or interest or legal fees due in connection therewith) when due, then, within
two (2) business days after Escrowee’s receipt of Tenant’s written demand
therefor (accompanied by the documentation set forth in clauses (a), (b) and
(c) of Article 23C(iii) of the Lease), Escrowee shall advise Landlord of
Tenant’s demand by sending a copy thereof and the accompanying supporting
documentation. If Landlord shall fail to object in writing to Escrowee’s
disbursement of the amount so demanded within five (5) business days after the
date Escrowee’s notice is given, Escrowee shall pay Tenant the amount so
demanded on account of Landlord’s Contribution. If Landlord shall timely object
to such disbursement (which objection, if made, shall be based solely on the
claim that Tenant has failed to satisfy the conditions to the disbursement of
such funds pursuant to the provisions of Article 23C(iii) of the Lease, and
shall be accompanied by an explanation of the reason(s) therefor and details
sufficient to enable Tenant to cure such objection), then Escrowee shall advise
Tenant of Landlord’s objection by sending a copy thereof to Tenant, and
Escrowee shall continue to hold such funds until resolution of the dispute (or,
at its election, shall deposit such funds into court, as hereinafter provided
in Article 4A). Any such dispute shall be resolved by arbitration in accordance
with the provisions of Article 41 of the Lease, and if Tenant prevails in such
arbitration proceeding, then Escrowee shall be required to pay Tenant (from the
Escrow Deposit) the full amount awarded to Tenant in such proceeding,
including, without limitation, any attorneys’ fees and/or interest awarded to
Tenant in such proceeding in accordance with the provisions of said Article
23C(iii).


                    B.
In the event that Landlord shall pay Tenant any portion of Landlord’s
Contribution in accordance with the terms of the Lease, then Landlord shall
notify Escrowee thereof. Within two (2) business days after Escrowee’s receipt
of Landlord’s notice of such payment, Escrowee shall notify Tenant that
Escrowee intends to refund to Landlord, from the Escrow Deposit, an amount
equal to the portion of Landlord’s Contribution so paid by Landlord. If Tenant
shall fail to object in writing to such refund by Escrowee, within five (5)
business days after the date Escrowee’s notice is given, then Escrowee shall
refund such portion of the Escrow Deposit to Landlord (and the amount of the
Escrow Deposit which is required to maintained hereunder shall be deemed
reduced by such amount). If Tenant shall timely object to such refund by
Escrowee (which objection, if made, shall be based solely on the claim that
Landlord has failed to actually pay such portion of Landlord’s Contribution (or
interest or legal fees due in connection therewith), and shall be accompanied by
a reasonably detailed explanation of the reason(s) therefor), then Escrowee
shall advise Landlord of Tenant’s objection by sending a copy thereof to
Landlord, and Escrowee shall continue to hold such funds until resolution of
the dispute (or, at its election, shall deposit such funds into 


2





court, as hereinafter provided in Article 4A). Any such dispute shall
be resolved by arbitration in accordance with the provisions of Article 41 of
the Lease.


                    C.
In the event that Tenant shall fail by the second anniversary of the
Commencement Date to perform sufficient Tenant’s Initial Installation Work for
Landlord’s Contribution to be fully applied, then Landlord shall notify
Escrowee thereof. Within two (2) business days after Escrowee’s receipt of such
notice from Landlord, Escrowee shall notify Tenant that Escrowee intends to
refund to Landlord, from the Escrow Deposit, an amount equal to the then
remaining balance of the Escrow Deposit. If Tenant shall fail to object in
writing to such refund by Escrowee, within five (5) business days after the
date Escrowee’s notice is given, then Escrowee shall refund such remaining
balance of the Escrow Deposit to Landlord. If Tenant shall timely object to
such refund by Escrowee (which objection, if made, shall be based solely on the
claim that Tenant has prior to the second anniversary of the Commencement Date
performed sufficient Tenant’s Initial Installation Work for Landlord’s
Contribution to be fully applied, or that Landlord has not paid interest or legal
fees which are then due to Tenant under the provisions of the Lease governing
Landlord’s Contribution, and which objection shall be accompanied by a
reasonably detailed explanation of the reason(s) therefor), then Escrowee shall
advise Landlord of Tenant’s objection by sending a copy thereof to Landlord,
and Escrowee shall continue to hold such funds until resolution of the dispute
(or, at its election, shall deposit such funds into court, as hereinafter
provided in Article 4A). Any such dispute shall be resolved by arbitration in
accordance with the provisions of Article 41 of the Lease.


                    D.
All interest earned on the Escrow Deposit shall be added onto and become part
of the Escrow Deposit and, to the extent it has not been applied in accordance
with the terms hereof, shall be released to Landlord when Landlord’s
obligations under the Lease with respect to Landlord’s Contribution have been
fully satisfied.


          4. A. In
the event of any dispute regarding this letter agreement or the Escrow Deposit,
or uncertainty as to the duties of Escrowee hereunder, then except as otherwise
expressly provided for herein, Escrowee shall pay the Escrow Deposit or
disputed portion thereof, as the case may be, into court pursuant to the
relevant statute.


                    B.
The parties agree jointly to defend (by attorneys selected by Escrowee),
indemnify and hold harmless Escrowee against and from any claim, judgment,
loss, liability, cost or expense resulting from any dispute or litigation arising
out of or concerning Escrowee’s duties or services hereunder. This indemnity
shall include, without limitation, reasonable attorneys’ fees and disbursements
either paid to retain attorneys or representing the fair value of legal
services rendered by Escrowee itself.


                    C.
Escrowee shall not be liable for any error in judgment or for any act done or
step taken or omitted in good faith, or for any mistake of fact or law, except
for Escrowee’s own gross negligence or willful misconduct. Notwithstanding
anything 


3





contained in this letter agreement to the contrary, Escrowee shall have
no obligation or responsibility to determine the validity of any objection by
either Landlord or Tenant to the disbursement of all or any part of the Escrow
Deposit; it being understood and agreed that such determination shall be made
solely by the arbitrators in any arbitration proceeding relating to such
objection.


                    D.
The parties acknowledge that Escrowee is merely a stakeholder. Upon payment of
the Escrow Deposit pursuant to this letter agreement, Escrowee shall be fully
released from any and all liability and obligations with respect to the Escrow
Deposit.


                    E.
It is acknowledged and agreed that Escrowee is the attorney for Landlord and
that Escrowee shall be entitled to represent Landlord in any lawsuit, except if
same relates to the Escrow Deposit, unless the Escrow Deposit has been
deposited into court by Escrowee, as hereinabove provided (in which case
Escrowee shall be entitled to represent Landlord in such lawsuit).


                    I.
Any notice or communication to Escrowee shall be in writing and either (a)
delivered by hand or by overnight courier, with receipt acknowledged in either
case, to Escrowee at 350 Fifth Avenue, Suite 2816, New York, New York 10118, or
(b) given by telecopier to (212) 279-4495, in either case, Attn: David J.
Bleckner, Esq. Each notice to Escrowee shall be deemed given when received (or
refused). Any notice or communication to Landlord or Tenant shall be governed
by the notice provisions of the Lease.


          5. The
provisions of this letter agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed wholly in the State of New York, without
regard to principles of conflicts of law.


          6. This
letter agreement shall bind and inure to the benefit of the parties hereto,
their heirs, personal representatives, successors and permitted assigns.


          7. This
letter agreement may not be modified, amended, altered or discharged except by
an instrument in writing signed by the parties hereto.


          8. This
letter agreement may be executed in counterparts, each of which shall be an original
and all of which counterparts taken together shall constitute one and the same
agreement.


          9. This
letter agreement supersedes any and all understandings and agreements between
the parties with respect to the subject matter hereof.


          10. In the
event that any provision of this letter agreement shall be held to be invalid
or unenforceable in any respect, the validity, legality or enforceability of
the remaining provisions of this letter agreement shall be unaffected thereby.


4





          11.
This letter agreement may be executed in two or more counterparts and all
counterparts so executed shall for all purposes constitute one agreement
binding on all of the parties hereto, notwithstanding that all parties shall
not have executed the same counterparts. Facsimile and photocopy signatures on
this letter agreement shall have the same force and effect as originals.


          Please
sign and return a copy of this letter to the undersigned so as to confirm your
agreement with the foregoing.


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Very truly
 yours,

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 EMPIRE STATE
 BUILDING COMPANY

 
	
  

 	
 L.L.C.,
 Landlord

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
      /s/
 Peter L. Malkin

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
 Name: Peter
 L. Malkin

 	
  

 
	
  

 	
  

 	
 Title:
 Member

 	
  

 






	
  

 	
  

 	
  

 
	
 AGREED

 
	
  

 
	
 COTY INC.,
 Tenant

 
	
  

 	
  

 	
  

 
	
 By:

 	
      /s/
 Michael Fishoff

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Name:
 Michael Fishoff

 	
  

 
	
  

 	
 Title: Chief
 Financial Officer

 	
  

 
	
  

 	
  

 	
  

 
	
 DAVID J.
 BLECKNER, P.C., Escrowee

 
	
  

 	
  

 	
  

 
	
 By:

 	
      /s/
 David J. Bleckner, Esq.

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Name: David
 J. Bleckner, Esq.

 	
  

 
	
  

 	
 Title:
 President

 	
  

 


5






[Deposit Image]






[Deposit Image]


























NON-DISTURBANCE AND ATTORNMENT AGREEMENT


          NON-DISTURBANCE
AND ATTORNMENT AGREEMENT (this “Agreement”) dated as of July 14,
2008, between EMPIRE STATE LAND ASSOCIATES L.L.C. (“Owner”), a limited
liability company organized and existing under the laws of the State of New
York, having its principal place of business c/o Wien & Malkin LLP, 60 East
42nd Street, New York, New York 10165; and COTY INC. (“Subtenant”), a
corporation organized and existing under the laws of the State of Delaware,
having an address at Two Park Avenue, New York, New York 10016.


W I T N E S S E T H:


          Owner
owns the fee title to the land described on Schedule A annexed hereto and made
part hereof (the “Land”) and the building (the “Building”)
known as The Empire State Building, 350 Fifth Avenue, New York, New York. Owner
leases the Land and Building to Empire State Building Associates L.L.C. (the “Master
Lessee”) pursuant to the Ground Lease described on Exhibit 1
annexed hereto and made part hereof (as amended, supplemented or otherwise
modified from time to time, the “Master Lease”). In turn, Master Lessee
sublets the Land and Building to Empire State Building Company L.L.C. (“Sublandlord”)
pursuant to that certain Agreement of Sublease more particularly described in
Exhibit 2 annexed hereto and made part hereof (as amended, supplemented or
otherwise modified from time to time, the “Operating Sublease”).


          Sublandlord
and Subtenant entered into a Lease dated as of July 14, 2008 (the “Sublease”),
pursuant to which Subtenant subleases a portion of the Building more
particularly described in the Sublease (the “Subleased Premises”).


          Subtenant
desires to be assured of the continued use and occupancy of the Subleased
Premises under the terms of the Sublease if the terms of the Master Lease and
the Operating Sublease are terminated or expire prior to the last day of the
term of the Sublease.


          Owner
agrees to such continued use and occupancy by Subtenant, provided that
Subtenant agrees to recognize and attorn to Owner.


          NOW,
THEREFORE, in consideration of the premises and covenants herein contained, it
is agreed:


          1.
If the terms of the Master Lease and Operating Sublease are terminated or
expire prior to the expiration of the term of the Sublease, then (a) the
Sublease shall not be terminated, (b) Owner shall not name or join Subtenant in
summary or other proceedings to obtain possession of the Subleased Premises or
to terminate the Sublease and (c) Owner shall not disturb the use and occupancy
of Subtenant under the Sublease so long as, with respect to each of clauses
(a), (b) and (c), Subtenant is not in default, beyond any applicable notice
and/or cure period, of any term, covenant or condition of the Sublease to be
performed or satisfied by Subtenant.


          2.
If the terms of the Master Lease and Operating Sublease are terminated or
expire prior to the expiration of the term of the Sublease, Subtenant shall
attorn to Owner as the sublandlord under the Sublease. All rights and
obligations under the Sublease shall continue as though such termination or
expiration of the terms of each of the Master Lease and Operating Sublease had
not occurred. The provisions of the foregoing two sentences are intended to be
effected automatically and be self-operative without the need for further
documentation to effect. Subtenant waives the provisions of any statute or rule
of law now or hereafter in effect that may give or purport to give Subtenant
any right or election to terminate or otherwise adversely affect the Sublease
and the obligations of Subtenant thereunder by reason of any such termination
or expiration of the term of the Master Lease or of the Operating Sublease.


          3.
Notwithstanding anything in this Agreement set forth to the contrary, Owner
shall not in any event (a) be liable for any previous act, omission, default,
misrepresentation or breach of any warranty of Sublandlord, but the foregoing
shall not be construed or interpreted as exculpating Owner from liability for
any damages, fees, costs 





or
expenses arising out of Owner’s failure to perform any obligation of any prior
landlord (including Sublandlord), to the extent such failure continues
following the date that Owner succeeded to the interest of Sublandlord under
the Sublease (the “Succession Date”), (b) be subject to any offsets, credits,
claims, counterclaims or defenses that Subtenant may be entitled to assert
against Sublandlord; provided, however, that Owner shall be subject to offsets,
credits, claims, counterclaims or defenses in favor of Subtenant to the extent
that they relate to any unfunded installment of Landlord’s Contribution (as
defined in the Sublease) payable to Subtenant pursuant to the terms of the
Sublease, (c) be bound by any amendment to or modification of the Sublease made
without the prior written consent of Owner, except for any such amendment or
modification made pursuant to provisions of the Sublease that prescribe such
amendment or modification and specify the subject matter thereof, (d) be bound
by any payment by Subtenant of any rent in advance beyond one month’s rent paid
in accordance with the terms of the Sublease or (e) be responsible for or with
respect to the retention, application and/or return to Subtenant of any
security deposit paid to Sublandlord, whether or not still held by Sublandlord,
unless and until Owner has actually received, or been credited with, the full
amount of such security deposit. It is agreed that after the Succession Date,
nothing herein shall be deemed to relieve Owner from performing, in accordance
with the terms of the Sublease and this Agreement, the obligations of
Sublandlord under the Sublease if the same have not been performed as of the
Succession Date and any other obligation that may accrue thereafter. If any
obligation of Sublandlord shall not have been performed prior to the Succession
Date and Owner is required to perform the same after the Succession Date
pursuant to the terms of the Sublease and/or this Agreement, and if Owner shall
default in its obligation to perform the same, then Subtenant’s remedies for
such non-performance shall be as prescribed in the Sublease or as may exist at
law. Notwithstanding anything herein to the contrary, Master Lessee shall not
be liable for any monetary damages accruing prior to the Succession Date as a
result of Sublandlord’s failure to perform any obligation required under the
Sublease to have been performed prior to the Succession Date, except as
otherwise provided in clause (b) of this Paragraph 3.


          4.
If any default (which includes any act or failure to act) shall occur that
shall permit Subtenant to terminate the term of the Sublease or cancel such
Sublease (whether immediately or after the lapse of time) (a “Termination
Right”), Subtenant shall promptly give Owner notice of such
event and a reasonable opportunity to remedy such event (but not less than (a)
ten (10) business days after such notice in the case of a monetary default and
(b) thirty (30) days in all other circumstances). If Owner shall have cured any
monetary default within the aforesaid time period or have commenced to effect
such a cure within the relevant time period in all other cases (and continue to
act diligently to prosecute such cure to completion), then Subtenant shall not
effect such a termination and the Sublease shall continue in effect pursuant to
its terms. Owner shall be entitled to additional time to cure such default if
(x) Owner shall require more than thirty (30) days following such notice to
remedy the default (other than a monetary default) giving rise to the
Termination Right, (y) Owner shall have given notice of its intention to remedy
the event within ten (10) days following its receipt of Subtenant’s notice and
(z) Owner promptly takes and diligently pursues commercially reasonable steps
to effect such remedy.


          5.
In all events, the liability of Owner to Subtenant whether under this Agreement
or the Sublease and Subtenant’s right to be made whole for any damage, injury
or loss it may sustain shall be limited and restricted to Owner’s estate in the
Subleased Premises and the proceeds of any sale thereof and shall in no event
exceed such interest or proceeds. In no event shall Subtenant name or seek to
name any member, agent, employee or affiliate of Owner in any action, proceeding,
arbitration or other form of litigation, whether to collect any deficiency or
otherwise, in connection with any claim arising out of or in connection with
the Sublease or this Agreement (whether before or after the expiration or
earlier termination of the term of the Lease).


          6.
Any notice required or desired to be given in connection with this Agreement
shall be in writing and shall be given to the parties hereto at the addresses
set forth below by (a) personal delivery to the person to whom notices are
designated to be given hereunder or (b) by facsimile transmittal, provided that
such transmittal is electronically confirmed to have been successfully sent and
an original, executed copy of such notice is delivered personally within one
(1) business day to the designated recipient of such notice. Notices shall be
deemed effective upon receipt by the designated person but the failure of any
such person to accept any notice or the failure to deliver any such notice
because any designated recipient is not available to receive the same shall not
be deemed to invalidate the effectiveness of such notice. Notices shall be
addressed as follows:


	
  

 	
  

 
	
  

 	
 To Owner:

 
	
  

 	
 Empire State Land
 Associates L.L.C.

 


2









	
  

 	
  

 
	
  

 	
 c/o Wien & Malkin LLP

 
	
  

 	
 60 East 42nd Street

 
	
  

 	
 New York, New York 10165

 
	
  

 	
 Attention: Senior Asset
 Manager 

 
	
  

 	
 Facsimile Number: (212)
 850-2796

 
	
  

 	
  

 
	
  

 	
 To Subtenant:

 
	
  

 	
 Coty Inc.

 
	
  

 	
 Two Park Avenue

 
	
  

 	
 New York, New York 10016 

 
	
  

 	
 Attention: Chief Financial
 Officer 

 
	
  

 	
 Facsimile No.: (212)
 479-4508

 
	
  

 	
  

 
	
  

 	
 With a copy to:

 
	
  

 	
  

 
	
  

 	
 Coty Inc.

 
	
  

 	
 Two Park Avenue

 
	
  

 	
 New York, New York 10016 

 
	
  

 	
 Attention: General Counsel
 

 
	
  

 	
 Facsimile No.: (212)
 479-4328

 


Each
party hereto may designate a different person and address for the receipt of
notices by notice given in the aforesaid manner.


          7.
A “business day” is deemed to be any day, except Saturday, Sunday and any day
that a majority of the commercial banks chartered by the State of New York
having branches in the Borough of Manhattan are closed for the purpose of
accepting deposits (other than by automatic teller machine or similar devices
or by electronic transfer of funds).


          8.
The provisions of this Agreement are binding upon and shall inure to the
benefit of the successors and assigns of the parties hereto.


          9.
If there is any conflict or ambiguity between any term of this Agreement and
any term of the Sublease, the term of this Agreement shall control.


          10.
This Agreement shall be governed by and construed in accordance with the
substantive laws of the State of New York without giving effect to any choice
or conflicts of law doctrine or policy. Any legal proceeding respecting any
cause of action or claim arising hereunder shall be brought in the courts of
the State of New York sitting in the County of New York.


          11.
Owner and Subtenant waive trial by jury in any action or proceeding or
counterclaim arising out of this Agreement brought or made by either of them.


          12.
This Agreement may not be amended or terminated orally.


          13.
This Agreement constitutes the sole agreement between the parties with respect
to the subject matter hereof and supersedes any prior agreement (written or
oral) between them with respect to such subject matter.


          14.
This Agreement may be executed in two or more counterparts and all counterparts
so executed shall for all purposes constitute one agreement binding on all of
the parties hereto, notwithstanding that all parties shall not have executed
the same counterparts. Facsimile and photocopy signatures on this Agreement
shall have the same force and effect as originals.


[SIGNATURE PAGE FOLLOWS]


3





          IN
WITNESS WHEREOF, the parties hereto have executed these presents the day and
year first above written.


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 EMPIRE STATE LAND
 ASSOCIATES L.L.C.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:  Empire
 State Building Associates L.L.C.,

 
	
  

 	
 Member

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
      /s/
 Peter L. Malkin

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name: Peter L. Malkin

 
	
  

 	
 Title: Member

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 COTY INC.

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
      /s/
 Michael Fishoff

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name: Michael Fishoff

 
	
  

 	
 Title: Chief Financial
 Officer

 






	
  

 	
  

 	
  

 
	
 STATE OF NEW YORK)

 	
  

 	
  

 
	
  

 	
 :

 	
 ss.

 
	
 COUNTY OF NEW YORK)

 	
  

 	
  

 


          On
the 14th day of July, 2008, before me, the undersigned, personally
appeared Peter L. Malkin personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person on behalf of which the individual acted, executed the instrument.


	
  

 	
  

 	
  

 
	
  

 	
      /s/
 Judy H. Love

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Notary Public

 	
  

 
	
  

 	
 JUDY
 H. LOVE

 	
  

 
	
  

 	
 Notary
 Public, State of New York

 	
  

 
	
  

 	
 No.
 01LO4877662

 	
  

 
	
  

 	
 Qualified
 in Queens County

 	
  

 
	
  

 	
 Commission
 Expires 11/17/2010

 	
  

 






	
  

 	
  

 	
  

 
	
 STATE OF NEW YORK)

 	
  

 	
  

 
	
  

 	
 :

 	
 ss.

 
	
 COUNTY OF NEW YORK)

 	
  

 	
  

 


          On
the 14th day of July, 2008, before me, the undersigned, personally
appeared Michael Fishoff 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(s) on behalf of which the
individual(s) acted, executed the instrument.


	
  

 	
  

 	
  

 
	
  

 	
      /s/
 Lori Rosario-Griffin

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Notary Public

 	
  

 
	
  

 	
 LORI
 ROSARIO-GRIFFIN

 	
  

 
	
  

 	
 NOTARY
 PUBLIC, State of New York

 	
  

 
	
  

 	
 No.
 02RO6106850

 	
  

 
	
  

 	
 Qualified
 in New York County

 	
  

 
	
  

 	
 Commission
 Expires March 15, 2012

 	
  

 


4





SCHEDULE
A


The Land


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


BEGINNING at the corner formed by the intersection of the southerly
side of 34th Street with the westerly side of 5th Avenue;


THENCE southerly along the westerly side of 5th Avenue 197
feet 6 inches to the northerly side of 33rd Street; 


THENCE westerly along the northerly side of 33rd Street 500
feet;


THENCE northerly and parallel with the westerly side of 5th
Avenue 98 feet 9 inches to the middle line of the block; 


THENCE easterly and parallel with the northerly side of 33rd
Street, 75 feet;


THENCE again northerly and parallel with the westerly side of 5th
Avenue and part of the distance through a party wall 98 feet 9 inches to the
southerly side of 34th Street;


THENCE easterly along the southerly side of 34th Street 425
feet to the corner aforesaid, the point or place of BEGINNING.


350 Fifth
Avenue, New York, NY

Block: 835

Lot: 41






EXHIBIT 1


Master Lease


          Indenture
of Ground Lease dated 12-21-51 by and between The Prudential Insurance Company
of America, as landlord and Alglan Realty Corporation, Rostev Realty
Corporation and Bentob Realty Corporation as tenants, and recorded 12-21-51 in Liber
4759 Page 534, as assigned and/or modified pursuant to:


          Modification
of Indenture of Lease between The Prudential Insurance Company of America and
Empire State Building Associates, dated 12-27-61, and recorded 12-27-61 in
Liber 5173 Page 49;


          Second
Modification of Indenture of Lease between The Prudential Insurance Company of
America and Empire State Building Associates, dated 2-15-65, and recorded
2-15-65 in Liber 5314 Page 479;


          Agreement
and Declaration by and between The Prudential Insurance Company of America and
Empire State Building Associates, dated 12-6-65, and recorded 12-10-65 in Liber
5353 Page 260.






EXHIBIT 2


Operating Sublease


          Terms,
Covenants, Conditions, Provisions, and Agreements of the Agreement of Sublease
dated 12/27/61 and recorded on 12/27/61 in Liber 5173 Page 155 made by Empire
State Building Associates, as sub-landlord, to Lawrence A. Wien, Harry B.
Helmsley, Martin Weiner Realty Corporation and Parempco Inc., Joint Venturers,
associated under the name of Empire State Building Company, as sub-tenant, and
with respect thereto:


          Terms,
Covenants, Conditions and Provisions of First Modification of Sublease between
Empire State Building Associates, as sublandlord, and Lawrence A. Wien, Harry
B. Helmsley, Wico Trading Corporation and Martin Weiner Realty Corporation,
Joint Venturers associated under the name of Empire State Building Company,
subtenants (with consent from The Prudential Insurance Company of America)
dated 2/15/65 and recorded on 2/15/65 in Liber 5315 Page 1.


2



















SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
AGREEMENT


          SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this “Agreement”) dated as of
July 14, 2008, between EMPIRE STATE BUILDING ASSOCIATES L.L.C. (“Master Lessee”), a limited liability
company organized and existing under the laws of the State of New York having
its principal place of business c/o Wien & Malkin LLP, 60 East 42nd Street,
New York, New York 10165; and COTY INC. (“Subtenant”),
a corporation organized and existing under the laws of the State of Delaware
having its principal place of business at Two Park Avenue, New York, New York
10016.


W I T N E S S E T H:


          Master
Lessee is the lessee by mesne assignments under that certain Indenture of
Ground Lease more particularly described in Exhibit 1 annexed hereto and made
part hereof (as amended, supplemented or otherwise modified from time to time,
the “Master Lease”)
pursuant to which it leases the land described on Schedule A annexed hereto and
made part hereof (the “Land”)
and the building (the “Building”)
known as The Empire State Building, 350 Fifth Avenue, New York, New York from
Empire State Land Associates L.L.C. In turn, Master Lessee sublets the Land and
Building to Empire State Building Company L.L.C. (“Sublandlord”) pursuant to that certain
Agreement of Sublease more particularly described in Exhibit 2 annexed hereto
and made part hereof (as amended, supplemented or otherwise modified from time
to time, the “Operating Sublease”).


          Sublandlord
and Subtenant entered into a Sublease, dated as of July 14, 2008 (the “Sublease”) pursuant to which Subtenant
subleases a portion of the Building more particularly described in the Sublease
(the “Subleased Premises”).


          Subtenant
desires to be assured of the continued use and occupancy of the Subleased
Premises under the terms of the Sublease if the term of the Operating Sublease
is terminated or expires prior to the last day of the term of the Sublease.


          Master
Lessee agrees to such continued use and occupancy by Subtenant, provided that
Subtenant agrees to recognize and attorn to Master Lessee.


          NOW,
THEREFORE, in consideration of the premises and covenants herein contained, it
is agreed:


          1. Subject
to the provisions hereinafter provided, the Sublease and all of the rights
under the Sublease are and shall remain subject and subordinate to the Master
Lease and to all of the terms thereof and the Master Lessee’s rights thereunder.


          2. If the
term of the Operating Sublease is terminated or expires prior to the expiration
of the term of the Sublease, then (a) the Sublease shall not be terminated, (b)
Master Lessee shall not name or join Subtenant in summary or other proceedings
to obtain possession of the Subleased Premises or to terminate the Sublease and
(c) Master Lessee shall not disturb the use and occupancy of Subtenant under
the Sublease so long as, with respect to each of clauses (a), (b) and (c),
Subtenant is not in default, beyond any applicable notice and/or cure period,
of any term, covenant or condition of the Sublease to be performed or satisfied
by Subtenant.


          3. If the
term of the Operating Sublease is terminated or expires prior to the expiration
of the term of the Sublease, Subtenant shall attorn to Master Lessee as the
sublandlord under the Sublease. All rights and obligations under the Sublease
shall continue as though such termination or expiration of the term of the
Operating Sublease had not occurred. The provisions of the foregoing two
sentences are intended to be effected automatically and be self-operative
without the need for further documentation to effect. Subtenant waives the
provisions of any statute or rule of law now or hereafter in effect that may
give or purport to give Subtenant any right or election to terminate or
otherwise adversely affect the Sublease and the obligations of Subtenant
thereunder by reason of any such termination or expiration of the term of the
Lease.





          4.
Notwithstanding anything in this Agreement set forth to the contrary, Master
Lessee shall not in any event (a) be liable for any previous act, omission,
default, misrepresentation or breach of any warranty of Sublandlord, but the
foregoing shall not be construed or interpreted as exculpating Master Lessee
from liability for any damages, fees, costs or expenses arising out of Master
Lessee’s failure to perform any obligation of any prior landlord (including
Sublandlord), to the extent such failure continues following the date that
Master Lessee succeeded to the interest of Sublandlord under the Sublease (the
“Succession Date”), (b) be
subject to any offsets, credits, claims, counterclaims or defenses that
Subtenant may be entitled to assert against Sublandlord; provided, however,
that Master Lessee shall be subject to offsets, credits, claims, counterclaims
or defenses in favor of Subtenant to the extent that they relate to any
unfunded installment of Landlord’s Contribution (as defined in the Sublease)
payable to Subtenant pursuant to the terms of the Sublease, (c) be bound by any
amendment to or modification of the Sublease made without the prior written
consent of Master Lessee, except for any such amendment or modification made
pursuant to provisions of the Sublease that prescribe such amendment or
modification and specify the subject matter thereof, (d) be bound by any
payment by Subtenant of any rent in advance beyond one month’s rent paid in
accordance with the terms of the Sublease or (e) be responsible for or with
respect to the retention, application and/or return to Subtenant of any
security deposit paid to Sublandlord, whether or not still held by Sublandlord,
unless and until Master Lessee has actually received, or been credited with,
the full amount of such security deposit. It is agreed that after the
Succession Date, nothing herein shall be deemed to relieve Master Lessee from
performing, in accordance with the terms of the Sublease and this Agreement,
the obligations of the Sublandlord under the Sublease if the same have not been
performed as of the Succession Date and any other obligation that may accrue
thereafter. If any obligation of Sublandlord shall not have been performed
prior to the Succession Date and Master Lessee is required to perform the same
after the Succession Date pursuant to the terms of the Sublease and/or this
Agreement, and if Master Lessee shall default in its obligation to perform the
same, then Subtenant’s remedies for such non-performance shall be as prescribed
in the Sublease or as may exist at law. Notwithstanding anything herein to the
contrary, Master Lessee shall not be liable for any monetary damages accruing
prior to the Succession Date as a result of Sublandlord’s failure to perform
any obligation required under the Sublease to have been performed prior to the
Succession Date, except as otherwise provided in clause (b) of this Paragraph
4.


          5. If any
default (which includes any act or failure to act) shall occur that shall
permit Subtenant to terminate the term of the Sublease or cancel such Sublease
(whether immediately or after the lapse of time) (a “Termination Right”), Subtenant shall
promptly give Master Lessee notice of such event and a reasonable opportunity
to remedy such event (but not less than (a) ten (10) business days after such
notice in the case of a monetary default and (b) thirty (30) days in all other
circumstances). If Master Lessee shall have cured any monetary default within
the aforesaid time period or have commenced to effect such a cure within the
relevant time period in all other cases (and continue to act diligently to
prosecute such cure to completion), then Subtenant shall not effect such a
termination and the Sublease shall continue in effect pursuant to its terms.
Master Lessee shall be entitled to additional time to cure such default if (x)
Master Lessee shall require more than thirty (30) days following such notice to
remedy the default (other than a monetary default) giving rise to the
Termination Right, (y) Master Lessee shall have given notice of its intention
to remedy the event within ten (10) days following its receipt of Subtenant’s
notice and (z) thereafter promptly takes and diligently pursues commercially
reasonable steps to effect such remedy.


          6. In all
events, the liability of Master Lessee to Subtenant whether under this
Agreement or the Sublease and Subtenant’s right to be made whole for any
damage, injury or loss it may sustain shall be limited and restricted to Master
Lessee’s estate in the Subleased Premises and the proceeds of any sale thereof
and shall in no event exceed such interest or proceeds. In no event shall
Subtenant name or seek to name any member, agent, employee or affiliate of
Master Lessee in any action, proceeding, arbitration or other form of
litigation, whether to collect any deficiency or otherwise, in connection with
any claim arising out of or in connection with the Sublease or this Agreement
(whether before or after the expiration or earlier termination of the term of
the Lease).


          7. Any
notice required or desired to be given in connection with this Agreement shall
be in writing and shall be given to the parties hereto at the addresses set
forth below by (a) personal delivery to the person to whom notices are
designated to be given hereunder or (b) by facsimile transmittal, provided that
such transmittal is electronically confirmed to have been successfully sent and
an original, executed copy of such notice is delivered personally within one
(1) business day to the designated recipient of such notice. Notices shall be
deemed effective upon receipt by the designated person but the failure of any
such person to accept any notice or the failure to deliver


2





any such notice because any designated recipient is not available to
receive the same shall not be deemed to invalidate the effectiveness of such
notice. Notices shall be addressed as follows:


	
  

 	
  

 
	
  

 	
 To Master
 Lessee:

 
	
  

 	
 Empire State
 Building Associates L.L.C. 

 
	
  

 	
 c/o Wien
 & Malkin LLP

 
	
  

 	
 60 East 42nd
 Street

 
	
  

 	
 New York,
 New York 10165

 
	
  

 	
 Attention:
 Senior Asset Manager

 
	
  

 	
 Facsimile
 Number: (212) 850-2796

 
	
  

 	
  

 
	
  

 	
 To
 Subtenant:

 
	
  

 	
 Coty Inc.

 
	
  

 	
 Two Park
 Avenue

 
	
  

 	
 New York,
 New York 10016

 
	
  

 	
 Attention:
 Chief Financial Officer 

 
	
  

 	
 Facsimile
 Number: (212) 479-4508

 
	
  

 	
  

 
	
  

 	
 With a copy
 to:

 
	
  

 	
  

 
	
  

 	
 Coty Inc.

 
	
  

 	
 Two Park
 Avenue

 
	
  

 	
 New York,
 New York 10016

 
	
  

 	
 Attention:
 General Counsel

 
	
  

 	
 Facsimile
 Number: (212) 479-4328

 


Each party hereto may designate a different person and address for the
receipt of notices by notice given in the aforesaid manner.


          8. A
“business day” is deemed to be any day, except Saturday, Sunday and any day
that a majority of the commercial banks chartered by the State of New York
having branches in the Borough of Manhattan are closed for the purpose of
accepting deposits (other than by automatic teller machine or similar devices
or by electronic transfer of funds).


          9. The
provisions of this Agreement are binding upon and shall inure to the benefit of
the successors and assigns of the parties hereto.


          10. If there
is any conflict or ambiguity between any term of this Agreement and any term of
the Sublease, the term of this Agreement shall control.


          11. This
Agreement shall be governed by and construed in accordance with the substantive
laws of the State of New York without giving effect to any choice or conflicts
of law doctrine or policy. Any legal proceeding respecting any cause of action
or claim arising hereunder shall be brought in the courts of the State of New
York sitting in the County of New York.


          12. Master
Lessee and Subtenant waive trial by jury in any action or proceeding or
counterclaim arising out of this Agreement brought or made by either of them.


          13. This
Agreement may not be amended or terminated orally.


          14. This
Agreement constitutes the sole agreement between the parties with respect to
the subject matter hereof and supersedes any prior agreement (written or oral)
between them with respect to such subject matter.


          15. This
Agreement may be executed in two or more counterparts and all counterparts so
executed shall for all purposes constitute one agreement binding on all of the
parties hereto, notwithstanding that all parties


3





shall not have executed the same counterparts. Facsimile and photocopy
signatures on this Agreement shall have the same force and effect as originals.


[SIGNATURE PAGE FOLLOWS]


4





          IN
WITNESS WHEREOF, the parties hereto have executed these presents the day and
year first above written.


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 EMPIRE STATE
 LAND ASSOCIATES L.L.C.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
      /s/
 Peter L. Malkin

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name: Peter L. Malkin

 
	
  

 	
 Title: Member

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 COTY INC.

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
      /s/
 Michael Fishoff

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name: Michael Fishoff

 
	
  

 	
 Title: Chief Financial
 Officer

 






	
  

 	
  

 	
  

 
	
 STATE OF NEW YORK)

 	
  

 	
  

 
	
  

 	
 :

 	
 ss.

 
	
 COUNTY OF NEW YORK)

 	
  

 	
  

 


          On
the 14th day of July, 2008, before me, the undersigned, personally appeared Peter L. Malkin 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(s) on behalf of which the individual(s) acted, executed the instrument.


	
  

 	
  

 	
  

 
	
  

 	
      /s/
 Judy H. Love

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Notary Public

 	
  

 
	
  

 	
 JUDY
 H. LOVE

 	
  

 
	
  

 	
 Notary
 Public, State of New York

 	
  

 
	
  

 	
 No.
 01LO4877662

 	
  

 
	
  

 	
 Qualified
 in Queens County

 	
  

 
	
  

 	
 Commission
 Expires 11/17/2010

 	
  

 






	
  

 	
  

 	
  

 
	
 STATE OF NEW YORK)

 	
  

 	
  

 
	
  

 	
 :

 	
 ss.

 
	
 COUNTY OF NEW YORK)

 	
  

 	
  

 


          On the 14th
day of July, 2008, before me, the undersigned, personally appeared Michael Fishoff 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, and that by his/her/their signature(s) on the instrument, the
individual(s), or the person(s) on behalf of which the individual(s) acted, executed the instrument.


	
  

 	
  

 	
  

 
	
  

 	
      /s/
 Lori Rosario-Griffin

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Notary Public

 	
  

 
	
  

 	
 LORI ROSARIO-GRIFFIN

 	
  

 
	
  

 	
 NOTARY PUBLIC, State of New York

 	
  

 
	
  

 	
 No. 02RO6106850

 	
  

 
	
  

 	
 Qualified in New York County

 	
  

 
	
  

 	
 Commission Expires March 15, 2012

 	
  

 


5





SCHEDULE A


The Land


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


BEGINNING at the comer formed by the intersection of the southerly side
of 34th Street with the westerly side of 5th Avenue;


THENCE southerly along the westerly side of 5th Avenue 197
feet 6 inches to the northerly side of 33rd Street; 


THENCE westerly along the northerly side of 33rd Street 500
feet;


THENCE northerly and parallel with the westerly side of 5th
Avenue 98 feet 9 inches to the middle line of the block; 


THENCE easterly and parallel with the northerly side of 33rd
Street, 75 feet;


THENCE again northerly and parallel with the westerly side of 5th
Avenue and part of the distance through a party wall 98 feet 9 inches to the
southerly side of 34th Street;


THENCE easterly along the southerly side of 34th Street 425
feet to the corner aforesaid, the point or place of BEGINNING.


350 Fifth Avenue, New York, NY

Block: 835

Lot: 41


6






EXHIBIT 1


Master Lease


          Indenture
of Ground Lease dated 12-21-51 by and between The Prudential Insurance Company
of America, as landlord and Alglan Realty Corporation, Rostev Realty
Corporation and Bentob Realty Corporation as tenants, and recorded 12-21-51 in
Liber 4759 Page 534, as assigned and/or modified pursuant to:


          Modification
of Indenture of Lease between The Prudential Insurance Company of America and
Empire State Building Associates, dated 12-27-61, and recorded 12-27-61 in
Liber 5173 Page 49;


          Second
Modification of Indenture of Lease between The Prudential Insurance Company of
America and Empire State Building Associates, dated 2-15-65, and recorded
2-15-65 in Liber 5314 Page 479;


          Agreement
and Declaration by and between The Prudential Insurance Company of America and
Empire State Building Associates, dated 12-6-65, and recorded 12-10-65 in Liber
5353 Page 260.


7






EXHIBIT 2


Operating Sublease


          Terms,
Covenants, Conditions, Provisions, and Agreements of the Agreement of Sublease
dated 12/27/61 and recorded on 12/27/61 in Liber 5173 Page 155 made by Empire
State Building Associates, as sub-landlord, to Lawrence A. Wien, Harry B.
Helmsley, Martin Weiner Realty Corporation and Parempco Inc., Joint Venturers,
associated under the name of Empire State Building Company, as sub-tenant., and
with respect thereto:


          Terms,
Covenants, Conditions and Provisions of First Modification of Sublease between
Empire State Building Associates, as sublandlord, and Lawrence A. Wien, Harry
B. Helmsley, Wico Trading Corporation and Martin Weiner Realty Corporation,
Joint Venturers associated under the name of Empire State Building Company,
subtenants, (with consent from The Prudential Insurance Company of America)
dated 2/15/65 and recorded on 2/15/65 in Liber 5315 Page 1.



























SUBORDINATION NON-DISTURBANCE AND ATTORNMENT
AGREEMENT


	
  

 
	

 


 


CAPITAL ONE, N.A.


- with -


COTY INC.


	
  

 
	

 


 


PREPARED BY:






SUBORDINATION NONDISTURBANCE AND ATTORNMENT AGREEMENT


This Subordination Nondisturbance and Attornment Agreement (being
hereinafter referred to as this “Agreement”) made as of this 14th day of
July, 2008, between CAPITAL ONE, N.A.
a national banking association, successor by merger to North Fork Bank, having
its principal offices at 275 Broadhollow Road, Melville, New York 11747
(“Mortgagee”) and COTY INC., a
Delaware corporation, having an office at Two Park Avenue, New York, New York
10016 (“Tenant”).


W I T N E S S E T H:


          WHEREAS, Mortgagee now owns and holds a
certain mortgage set forth on Schedule A annexed hereto (including, without
limitation, all present and future renewals, modifications, consolidations,
spreaders, replacements and extensions thereof, the “Mortgage”), made between
Mortgagee and Empire State Land Associates L.L.C. (“ESLA”) and Empire State
Building Associates L.L.C. (“ESBA”; ESBA and ESLA, collectively, “Mortgagor”),
which Mortgage affects, among other things, (i) that certain parcel of land
more particularly described in Schedule B annexed hereto (the
“Property”) and (ii) the improvements located thereon (the “Building”); and


          WHEREAS, by lease dated July 14,
2008 (the “Lease”), a true copy of which has been furnished to Mortgagee,
Empire State Building Company L.L.C. (“Landlord”) has leased and demised to
Tenant and Tenant has hired and taken from Landlord a portion of the Building
more particularly described in the Lease (the “Demised Premises”); and


          WHEREAS, at the request of Tenant,
Mortgagee is willing to enter into this Agreement with Tenant upon the terms,
covenants and conditions contained herein.


          NOW, THEREFORE, in consideration of the
foregoing premises and the covenants and agreements hereinafter set forth, the
parties hereto mutually covenant and agree as follows:


          1. Subject
to the provisions hereinafter provided, the Lease and all rights of Tenant
thereunder are and shall be subject and subordinate to the Mortgage and to each
and every advance made or to be made thereunder. The provisions of this
paragraph shall be self-operative and no further instrument of subordination
shall be required or needed. Nevertheless, in confirmation of such
subordination, Tenant shall, at the reasonable request of the holder of the
Mortgage, promptly execute, acknowledge and deliver such further instrument of
subordination as may be required by such holder so long as such instrument does
not increase the obligations and liabilities of Tenant as provided hereunder.


          2. As long
as no default under the Lease on the part of Tenant then exists beyond the
expiration of any notice and grace period:


                    (a)
Tenant shall not be named or joined as a party defendant in any foreclosure
action or proceeding to collect the debt secured by the Mortgage which may be
instituted or taken by Mortgagee under or in connection with the Mortgage or
any obligation 





secured thereby or by any holder of the Mortgage or by any holder of
any interest in the Mortgage or by any successor or assignee of such interest
(unless required by law); and


                    (b)
Tenant shall not be evicted from the Demised Premises or any part(s) thereof
nor shall Tenant’s leasehold estate or possession of the Demised Premises under
the Lease be terminated or disturbed nor shall any of Tenant’s rights under the
Lease be affected in any way solely by reason of any default under the
Mortgage.


          3. If
Mortgagee or any holder of the Mortgage or any holder of any interest in the
Mortgage or any successor or assignee of any one or more of the foregoing shall
succeed to the rights of Mortgagor or Landlord under the lease, whether through
possession or foreclosure action or delivery of a new deed, then the Lease
shall not terminate and Tenant shall attorn to and recognize the party so
succeeding to Landlord’s rights (such party being hereinafter referred to as
the “Successor Landlord”) as Tenant’s landlord under the Lease and Successor
Landlord shall be conclusively deemed to have accepted such attornment and
shall recognize Tenant as tenant under the Lease. Tenant shall promptly execute
and deliver any instrument that Successor Landlord may reasonably request to
evidence such attornment (so long as such instrument does not increase the
obligations and liabilities of Tenant as provided hereunder). Upon such
attornment the Lease shall continue in full force and effect as, or as if it
were, a direct lease between Successor Landlord and Tenant upon all of the same
terms, conditions and covenants as are set forth in the Lease, except that
Successor Landlord shall not:


                    (a)
be responsible for any monies owing by or on deposit with Landlord to the
credit of Tenant, except to the extent turned over to Successor Landlord;


                    (b)
be bound by any previous modification or extension of the Lease not expressly
provided for in the Lease such as in Articles 4, 32 and 43 of the Lease or by
any previous prepayment of rent for more than one (1) month, unless such
modification, extension or prepayment shall have been expressly approved in
writing by Mortgagee;


                    (c)
be liable for any act, omission, neglect or default on the part of Landlord
under the Lease, but the foregoing shall not be construed or interpreted as
exculpating Successor Landlord from liability for any damages, fees, costs or
expenses arising out of Successor Landlord’s failure to perform any obligations
of any prior landlord, which failure continues following the date title to the
Property is transferred to Successor Landlord; or


                    (d)
be subject to any claim, counterclaim, defense or setoff which shall have
theretofore accrued to Tenant against Landlord.


          4. No
modifications may be made to the Lease by Landlord and/or Tenant without
Mortgagee’s prior written consent except for any modifications made to the
Lease pursuant to the provisions of Articles 4, 32 and 43 of the Lease.
Landlord shall not unreasonably withhold or delay its consent to any
modification of the Lease requiring Landlord’s consent, provided that such
modifications do not materially alter the economic or other material terms of
the Lease.


          5. Tenant
hereby represents and warrants to Mortgagee that as of the date hereof (i)
Tenant is the owner and holder of the tenant’s interest under the Lease, (ii)
the Lease has not been modified or amended, (iii) the Lease is in full force
and effect in accordance with its terms, 





(iv) to the best of Tenant’s knowledge, neither Tenant nor Landlord is
in default under any of the terms, covenants or provisions of the Lease which
default has continued beyond the expiration of any applicable cure period, no
event has occurred which but for the passage of time or the giving of notice or
both would constitute an event of default by Tenant or Landlord under the
Lease, (v) neither Tenant nor Landlord has commenced any action or given or
received any notice for the purpose of terminating the Lease, (vi) all rents,
additional rents and other sums due and payable under the Lease have been paid
in full and no rents, additional rents or other sums payable under the Lease
have been paid for more than one (1) month in advance of the due dates thereof,
and (vii) to the best of Tenant’s knowledge, there are no offsets or defenses
to the payment of the rents, additional rents, or other sums payable by Tenant
under the Lease.


          6. Tenant
agrees that if there shall occur any action or omission by Landlord which would
give Tenant the right to terminate the Lease or to claim a partial or total
eviction, Tenant shall not exercise any such right until (i) Tenant has
notified Mortgagee in writing of such act or omission and, provided Mortgagee
shall have notified Tenant of Mortgagee’s intention to cure such act or
omission within thirty (30) days after Mortgagee’s receipt of Tenant’s notice,
(ii) a reasonable period for commencing and curing the remedy of such act or
omission shall have elapsed following the giving of such notice by Tenant
(which reasonable period shall in no event be (x) less than the period to which
Landlord would be entitled under the Lease or otherwise after similar notice to
effect such remedy and (y) more than ninety (90) days after the period to which
Landlord would be entitled under the Lease or otherwise after similar notice to
effect such remedy), and Mortgagee shall have failed, within such reasonable
period, to commence and continue to remedy such act or omission and to cause
the same to be remedied.


          7. This
Agreement may not be discharged or modified orally or in any manner other than
by an instrument in writing specifically referring to this Agreement and signed
by a duly authorized officer or other representative of Mortgagee and by a duly
authorized or other representative of Tenant.


          8. This
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof.


          9. The
covenants and agreements herein contained shall apply to, inure to the benefit
of, and be binding upon Mortgagee, Tenant and their respective successors,
assigns and legal representatives.


[SIGNATURE PAGES FOLLOW]





          IN WITNESS WHEREOF, Mortgagee and Tenant,
intended to be legally bound, have duly executed this Agreement as of the day
and year first above written.


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 CAPITAL ONE,
 N.A.

 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
     /s/
 Louis J. Rosado

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
 Name: Louis
 J. Rosado

 	
  

 
	
  

 	
  

 	
 Title:
 Senior Vice President

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 COTY INC.

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
     /s/
 Michael Fishoff

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
 Name:
 Michael Fishoff

 	
  

 
	
  

 	
  

 	
 Title: CFO

 	
  

 













	
  

 	
  

 
	
 STATE OF NEW
 YORK)

 	
  

 
	
 :ss.:

 	
  

 
	
 COUNTY OF
 SUFFOLK)

 	
  

 


          On the 11
day of July, 2008, before me, the undersigned, personally appeared Louis
J. Rosado, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual, or the person on behalf of
which the individual acted, executed the instrument.


	
  

 	
  

 	
  

 	
  

 
	
  

 	
     /s/
 Tara J. Leetom

 
	
  

 	

 


 	
  

 
	
  

 	
 Notary
 Public

 	
  

 
	
  

 	
  

 	
 TARA J.
 LEETOM

 	
  

 
	
  

 	
       Notary
 Public, State of New York

 
	
  

 	
  

 	
      No. 02LE6013427

 	
  

 
	
  

 	
           Qualified
 in Queens County

 
	
  

 	
     Commission
 Expires Sept. 14, 2010

 






	
  

 	
  

 
	
 STATE OF NEW
 YORK)

 	
  

 
	
 :ss.:

 	
  

 
	
 COUNTY OF
 NEW YORK)

 	
  

 



          On
the 14 day of July, 2008, before me, the undersigned, personally
appeared Michael Fishoff, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity, and that by his signature on the instrument, the
individual, or the person on behalf of which the individual acted, executed the
instrument.


	
  

 	
  

 	
  

 	
  

 
	
  

 	
      /s/
 Lori Rosario-Griffin

 
	
  

 	

 


 	
  

 
	
  

 	
 Notary
 Public

 	
  

 
	
  

 	
  

 	
 LORI
 ROSARIO-GRIFFIN

 	
  

 
	
  

 	
       NOTARY
 PUBLIC, State of New York

 
	
  

 	
  

 	
           No. 02RO6106850

 	
  

 
	
  

 	
           Qualified
 in New York County

 
	
  

 	
     Commission
 Expires March 15, 2012

 


2





SCHEDULE A - MORTGAGE CHAIN


	
  

 	
  

 
	
 1.

 	
 Mortgage and Security Agreement dated June 28, 1994 in the principal
 amount of $11,700,000.00 made by Trump Empire State Partners to Principal
 Mutual Life Insurance Company and recorded July 1, 1994 in Reel 2111 Page
 2049 in the Office of the City Register, New York County;

 
	
  

 	
  

 
	
  

 	
 Mortgage Tax Paid: $321,750.00

 
	
  

 	
  

 
	
  

 	
 Which mortgage was assigned by Principal Mutual Life Insurance
 Company to North Fork Bank by Assignment of Mortgage dated as of April 9,
 2002 and recorded April 26, 2002 in Reel 3500 Page 805 in the Office of the
 City Register, New York County;

 
	
  

 	
  

 
	
  

 	
 which mortgage was spread to encumber the Leasehold Estate in the
 Mortgaged Property by Spreader Agreement dated as of April 17, 2002 made by
 and between Empire State Building Associates L.L.C. and Empire State Land
 Associates L.L.C. to North Fork Bank and recorded April 26, 2002 in Reel 3500
 Page 810 in the Office of the City Register, New York County

 
	
  

 	
  

 
	
 2.

 	
 Mortgage dated as of April 17, 2002 made by Empire State Building
 Associates L.L.C. and Empire State Land Associates L.L.C. to North Fork Bank
 in the principal sum of $48,800,000.00 and recorded April 26, 2002 in Reel
 3500 Page 819 in the Office of the City Register, New York County;

 
	
  

 	
  

 
	
  

 	
 Mortgage Tax Paid: $1,342,000.00;

 
	
  

 	
  

 
	
  

 	
 Which two (2) mortgages were consolidated to form a single lien of
 $60,500,000.00 by Consolidation and Extension Agreement dated as of April 17,
 2002 made by and among Empire State Building Associates L.L.C. and Empire
 State Land Associates L.L.C. and North Fork Bank and recorded April 26, 2002
 in Reel 3500 Page 831 in the Office of the City Register, New York County;

 
	
  

 	
  

 
	
  

 	
 Which two (2) mortgages, as consolidated, were modified by unrecorded
 Modification Agreement dated as of November 1, 2006 made by and among Empire
 State Building Associates L.L.C. and Empire State Land Associates L.L.C. and
 North Fork Bank.

 


3





SCHEDULE B - LEGAL DESCRIPTION


SCHEDULE A


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


BEGINNING at the corner formed by the intersection of the southerly
side of 34th Street with the westerly side of 5th Avenue;


THENCE southerly along the westerly side of 5th Avenue 197 feet 6
inches to the northerly side of 33rd Street;


THENCE westerly along the northerly side of 33rd Street 500 feet;


THENCE northerly and parallel with the westerly side of 5th Avenue 98
feet 9 inches to the middle line of the block;


THENCE easterly and parallel with the northerly side of 33rd Street, 75
feet;


THENCE again northerly and parallel with the westerly side of 5th
Avenue and part of the distance through a party wall 98 feet 9 inches to the
southerly side of 34th Street;


THENCE easterly along the southerly side of 34th Street 425 feet to the
corner aforesaid, the point or place of BEGINNING.


Said premises known as: 350 Fifth Avenue, New York, N.Y.


Block: 835


Lot: 41


4





FIRST LEASE
MODIFICATION AGREEMENT


          AGREEMENT made
as of this 17th             day
of March, 2009, between EMPIRE STATE BUILDING COMPANY L.L.C., a New York
limited liability company, with an office at 350 Fifth Avenue, New York, New
York 10118 (hereinafter called “Landlord”), and CC TY INC., a New York
corporation with an office at 350 Fifth Avenue, New York, New York 10118
(hereinafter called “Tenant”).


WITNESSETH:


          WHEREAS, Landlord
and Tenant are the landlord and tenant, respectively, under that certain lease
dated as of July 14, 2008 (the “Lease”), covering the entire rentable area of
the fourteenth (14th) floor and a portion of the fifteenth (15th)
floor (collectively, the “Demised Premises”) of the building (the “Building”)
known as The Empire State Building, located at 350 Fifth Avenue, New York, New
York; and


          WHEREAS, Landlord and Tenant have entered
into a certain Commencement Date Agreement dated January 14, 2009 with respect
to the Lease, confirming that the Commencement Date (as defined in the Lease)
is December 15, 2008 and that the Expiration Date (as defined in the Lease) is October 31, 2024; and


          WHEREAS, Landlord and Tenant wish to modify
the Lease by adding to the premises demised under the Lease approximately 483
rentable square feet of storage space, designated as Storerooms 15A & 15C,
each on the fifteenth (15th) floor of the Building, approximately as
shown on the space diagram attached hereto and made a part hereof as Exhibit A
(collectively, the “First Additional Storage Premises”), in accordance with the
terms and conditions hereinafter set forth.


          NOW, THEREFORE, in
consideration of the premises, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Landlord and
Tenant hereby agree as follows:


          1.
The First Additional
Storage Premises shall be deemed to be, and hereby is, added to the premises
demised under the Lease, for a term of years, to commence on the date (the
“FASP Commencement Date”) that this Agreement is executed and delivered by
Landlord and Tenant and consented to by the party named in Article 11 of this
Agreement, and to expire on the Expiration Date, unless such term shall sooner
terminate as in the Lease, as modified hereby, provided. Except as otherwise
set forth herein, the First Additional Storage Premises shall be leased Tenant
pursuant to all of the terms, covenants and conditions of the Lease (as
modified hereby). Landlord and Tenant agree that the rentable square foot area
of the First Additional Storage Premises shall be deemed to be 483 rentable
square feet. Tenant shall use the First Additional Storage Premises solely for
storage relating to Tenant’s business, and for no other purpose.


          2.
Commencing on the FASP
Commencement Date, Tenant shall pay Landlord fixed annual rent for the First
Additional Storage Premises (exclusive of electricity and subject to adjustment
under Article 2B of the Lease, as modified hereby) at the rate of Twelve
Thousand Seventy-Five and 00/100 ($12,075.00) Dollars per annum ($1,006.50 per month).


          3.
Tenant shall pay Landlord
operating expense escalation additional rent for the First Additional Storage
Premises, in accordance with Article 2B of the Lease, except that the term “The Percentage” shall mean .0178
percent (.0178%).


          4.
Tenant shall pay Landlord
real estate tax escalation additional rent for the First Additional Storage
Premises, in accordance with Article 2C of the Lease, except that the term “The






Percentage” for purposes of computing
tax escalation additional rent for the First Additional Storage Premises shall
mean .0178 percent (.0178%).


          5.
Tenant agrees to take and accept possession of the First Additional Storage
Premises broom-clean, free of debris and otherwise in its “as is” condition.
Tenant acknowledges and agrees that Landlord shall have no obligation to
perform any work in or to the First Additional Storage Premises to make it
suitable and ready for Tenant’s occupancy and use. Landlord shall deliver possession
of the First Additional Storage Premises to Tenant on the FASP Commencement
Date is said condition, free of any occupancies or tenancies.


          6.
Landlord shall
redistribute and furnish electricity to Tenant for the First Additional Storage
Premises, on a rent inclusion basis, in accordance with Article 3B of the
Lease, except that, if and so long as Tenant uses the First Additional Storage
Premises solely for storage purposes, then the ERIF (as such term is defined in
the Lease) for such space (but not the Demised Premises) shall be calculated at
one (1) kilowatt (1KW) of demand. Landlord represents that, as of the date of
this Agreement, such ERIF is $40.00 per month, which monthly payment shall be
subject to adjustment due to rate changes or due to Tenant’s consumption, as in
said Article 3B provided. However, if Tenant uses the First Additional Storage
Premises for any purpose other than storage purposes, then and in that event, the ERIF for such space
shall no longer be calculated at one (1) kilowatt (1KW) of demand, but shall be
calculated solely in accordance with the terms of Article 3B of the Lease.


          7.
A. Tenant represents and
warrants that it neither consulted nor negotiated with any broker or finder
with regard to this Agreement other than CB Richard Ellis, Inc. and Colliers
ABR, Inc. (collectively, the “Brokers”). Tenant shall indemnify, defend and
save Landlord harmless from and against any claims for fees or commissions from
anyone other than the Brokers with whom Tenant has dealt in connection with
this Agreement.


                    B.
Landlord represents and warrants that it neither consulted nor negotiated with
any broker or finder with regard to this Agreement other than the Brokers.
Landlord shall indemnify, defend and save Tenant harmless from and against any
claims for fees or commissions from anyone including the Brokers with whom
Landlord has dealt in connection with this Agreement. Landlord shall pay any
commission or fee due and owing to the Brokers pursuant to separate agreements
with them.


          8.
Landlord shall provide no
heat, air-conditioning, cleaning, water or any other services to the First
Additional Storage Premises, except as otherwise expressly set forth in Article
6 of this Agreement.


          9.
A. Tenant shall not be
entitled to any additional Empire State Building Observatory Executive Passes
with respect to the leasing of the First Additional Storage Premises.


                    B.
The provisions of Article 24E of the Lease shall not be applicable to the First
Additional Storage Premises.


          10.
The Renewal Option set
forth in Article 32 of the Lease shall be applicable to the First Additional
Storage Premises; provided, however, that Tenant may not exercise such Renewal
Option with respect to the First Additional Storage Premises without also
exercising such Renewal Option with respect to the Demised Premises, but Tenant
may exercise such Renewal Option with respect to the Demised Premises without
also exercising it with respect to the First Additional Storage Premises.
Tenant’s renewal notice shall indicate whether Tenant is also exercising its
Renewal Option with respect to the First Additional Storage Premises. If
Tenant’s renewal notice shall fail to so indicate, Tenant shall be deemed to
have exercised such Renewal Option with respect to the entire Demised Premises
and the First Additional Storage Space.





          11.
Landlord shall have no obligation to obtain any subordination, non-disturbance
and attornment agreement with respect to the First Additional Storage Premises;
provided, however, that Landlord shall obtain the consent to this Agreement
from Capital One, N.A. (in the form attached hereto and made a part hereof as
Exhibit B), as is required under certain Subordination, Non-Disturbance and
Attornement Agreement dated as of July 14, 2008 between Capital One, N. A. and
Tenant.


          12.
A. Notwithstanding
anything contained in the Lease, as modified hereby, to the contrary, it is
understood and agreed that Landlord may, at Tenant’s reasonable expense, effect
such work as is necessary to cause Tenant’s entrance door signage for the First
Additional Storage Premises to conform to the then Building standards and
specifications for entrance door signage. Landlord shall effect such work
within thirty (30) days after Tenant’s Signage Proposal (as hereinafter
defined) has been approved by Landlord. Tenant shall permit Landlord and its
contractors such access to the First Additional Storage Premises (including on
business days, during normal business hours) as is reasonably necessary to
perform such work. Landlord and its contractors shall perform such work in a
good and workmanlike manner and shall use commercially reasonable efforts to
minimize any interference with Tenant’s use of the First Additional Storage
Premises while such work is being performed.


                    B.
It is further understood and agreed that any approved entrance signage for the
First Additional Storage Premises shall conform to the then standards and
specifications of Landlord for such signage (the “Signage Specifications”).
Tenant may submit to Landlord for Landlord’s prior written approval a proposal
regarding the content of any such entrance door signage (“Tenant’s Signage
Proposal”). Any changes to such approved entrance door sign shall be subject to
Landlord’s prior approval and to Landlord’s Signage Specifications. Landlord
shall not withhold, condition or delay Landlord’s approval of Tenant’s Signage
Proposal so long as Tenant’s Signage Proposal conforms to Landlord’s Signage
Specifications.


          13.
Landlord shall have the
right, at any time during the term of the Lease, as modified hereby, upon not
less than ten (10) business days’ notice to Tenant, to effect such work as is
necessary to cause the entrance door to the First Additional Storage Premises
to conform to the then Building standards and specifications for such entrance
doors (the “Entrance Door Work”), at Landlord’s sole cost and expense. Tenant
shall permit Landlord and its contractors such access to the First Additional
Storage Premises (including on business days during normal business hours) as
is reasonably necessary to perform the Entrance Door Work. Landlord and its
contractors shall perform the Entrance Door Work in a good and workerlike
manner, shall use commercially reasonable efforts to minimize any interference
with Tenant’s use of the First Additional Storage Premises while such work is
being performed, and shall repair any damage to the First Additional Storage
Premises resulting from such work.


          14.
The Lease, as modified
hereby, shall be deemed to have been made in New York County, New York, and shall be construed in accordance
with the laws of New York. All actions or proceedings relating, directly or
indirectly, to the Lease, as modified hereby, shall be litigated only in courts
located within the County of New York. Landlord and Tenant, and their
respective successors and assigns, hereby subject themselves to the
jurisdiction of any state or federal court located with such county. Tenant
hereby waives the right to raise any defense based upon inconvenient forum or
make any plea or motion seeking to remove any case to a county other than New
York County.


          15.
A. This Agreement shall not in any way bind Landlord or Tenant until such time
as it has been fully executed and delivered by Landlord and Tenant.


                    B.
Except as herein
modified, all of the terms, covenants and conditions of the Lease are and shall
remain in full force and effect and are hereby ratified and confirmed.


                    C.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective legal representatives, successors and
assigns.





                    D.
Tenant hereby represents that, to the best of Tenant’s knowledge, Landlord is
in full compliance with the Lease and is not in default beyond any applicable
grace period of any of its respective obligations under the Lease and there
exists no defense or counterclaim to the payment of any fixed annual rent or
additional rent pursuant thereto.


                    E.
Landlord hereby represents that, to the best of Landlord’s knowledge, Tenant is
in full compliance with the Lease and is not in default beyond any applicable
grace period of any of its respective obligations under the Lease.


          16.
This Agreement may be executed in two (2) or more counterparts and all
counterparts shall for all purposes constitute one agreement binding on all of
the parties hereto, notwithstanding that all parties shall not have executed
the same counterparts. Facsimile and photocopy signatures of this Agreement shall
have the same force and effect as originals.


          IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the day and year first above written.


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 EMPIRE STATE BUILDING
 COMPANY L.L.C.,

 	
  

 
	
  

 	
 Landlord

 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
 By: CB Richard Ellis,
 Inc., as Agent

 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
 BY:

 	
 /s/ Stephen K. Bynon

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
      Stephen
 K. Bynon, Director of Leasing

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 COTY INC.
 Tenant

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ James E. Shiah

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
      Print
 Name: James E. Shiah

 	
  

 
	
  

 	
  

 	
      Print
 Title: SVP Finance & Global Controller

 	
  

 










EXHIBIT A


First Additional Storage Premises






EXHIBIT B


Consent to First Lease Modification Agreement
by Mortgagee


          The undersigned,
as Mortgagee under that certain Subordination, Non-Disturbance and Attornment
Agreement dated as of July 14, 2008 (the “SNDA”) between the undersigned and
Tenant, hereby consents to the foregoing First Lease Modification Agreement
between Empire State Building Company L.L.C. and Tenant, and agrees that the
terms of the SNDA shall apply to the Lease, as modified by such First Lease
Modification Agreement, including, without limitation, the First Additional
Storage Premises.


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 CAPITAL ONE,
 N.A.

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Louis J.
 Rosado

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
   Print
 Name: Louis J. Rosado

 	
  

 
	
  

 	
  

 	
   Print
 Title: Senior Vice President

 	
  

 










COMMENCEMENT DATE AGREEMENT


          AGREEMENT made as of the 14th day of
January, 2009 between EMPIRE STATE BUILDING COMPANY L.L.C. (hereinafter
referred to as “Landlord”), and COTY INC. (hereinafter referred to as
“Tenant”).


W I T N E S S E T H:


          WHEREAS, the parties hereto have entered into
a certain agreement of lease (“Lease”) dated as of July 14, 2008, whereby
Landlord has leased to Tenant and Tenant has hired of Landlord certain space on
the 14th and 15th floors of the building known as the
Empire State Building, 350 Fifth Avenue, New York, New York; and


          WHEREAS, the parties hereto agree, pursuant
to Article 1A of the Lease, that the term of the Lease shall commence on
December 15, 2008.


          NOW,
THEREFORE, in
consideration of the premises, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:


	
  

 	
  

 	
  

 
	
  

 	
 1.

 	
 The “Commencement Date” under the Lease shall be and is hereby
 established to be December 15, 2008; and, accordingly, the “Rent Commencement
 Date” under the Lease shall be and is hereby established to be October 15,
 2009, and the “Expiration Date” under the Lease shall be and is hereby
 established to be October 31, 2024.

 
	
  

 	
  

 	
  

 
	
  

 	
 2.

 	
 Except as herein modified, all of the terms, covenants and conditions
 of the Lease are and shall remain in full force and effect and are hereby
 ratified and confirmed.

 
	
  

 	
  

 	
  

 
	
  

 	
 3.

 	
 This Agreement shall be binding upon and inure to the benefit of the
 parties hereto and their respective legal representatives, successors and
 permitted assigns.

 


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


	
  

 	
  

 	
  

 	
  

 
	
 Signed,
 Sealed and Delivered

 in the presence of:

 	
  

 	
 LANDLORD:

 EMPIRE STATE BUILDING COMPANY L.L.C.

 
	
  

 	
  

 	
 By: 

 	
 /s/
 ILLEGIBLE

 
	

 


 	
  

 	
  

 	

 


 
	
 (As to
 Landlord)

 	
  

 	
 Name:
 ILLEGIBLE

 Title: Director of Operations

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 TENANT: 

 COTY INC.

 
	
 /s/ James E.
 Shiah

 	
  

 	
 By:

 	
 /s/ Jules P.
 Kaufman

 
	

 


 	
  

 	
  

 	

 


 
	
 (As to
 Tenant)

 	
  

 	
 Name: Jules
 P. Kaufman

 Title: SVP, General Counsel & Secretary

 









COMMENCEMENT DATE AGREEMENT


          AGREEMENT made as of the 14th day of
January, 2009 between EMPIRE STATE BUILDING COMPANY L.L.C. (hereinafter
referred to as “Landlord”), and COTY INC. (hereinafter referred to as
“Tenant”).


W I T N E S S E T H:


          WHEREAS, the parties hereto have entered into
a certain agreement of lease (“Lease”) dated as of July 14, 2008, whereby
Landlord has leased to Tenant and Tenant has hired of Landlord certain space on
the 14th and 15th floors of the building known as the
Empire State Building, 350 Fifth Avenue, New York, New York; and


          WHEREAS, the parties hereto agree, pursuant
to Article 1A of the Lease, that the term of the Lease shall commence on
December 15, 2008.


          NOW,
THEREFORE, in
consideration of the premises, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:


	
  

 	
  

 	
  

 
	
  

 	
 1.

 	
 The “Commencement Date” under the Lease shall be and is hereby
 established to be December 15, 2008; and, accordingly, the “Rent Commencement
 Date” under the Lease shall be and is hereby established to be October 15,
 2009, and the “Expiration Date” under the Lease shall be and is hereby
 established to be October 31, 2024.

 
	
  

 	
  

 	
  

 
	
  

 	
 2.

 	
 Except as herein modified, all of the terms, covenants and conditions
 of the Lease are and shall remain in full force and effect and are hereby
 ratified and confirmed.

 
	
  

 	
  

 	
  

 
	
  

 	
 3.

 	
 This Agreement shall be binding upon and inure to the benefit of the
 parties hereto and their respective legal representatives, successors and
 permitted assigns.

 


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


	
  

 	
  

 	
  

 	
  

 
	
 Signed,
 Sealed and Delivered

 in the presence of:

 	
  

 	
 LANDLORD:

 EMPIRE STATE BUILDING COMPANY L.L.C.

 
	
  

 
	
  

 	
  

 	
 By: 

 	
 /s/
 ILLEGIBLE

 
	

 


 	
  

 	
  

 	

 


 
	
 (As to
 Landlord)

 	
  

 	
 Name:
 ILLEGIBLE

 Title: Director of Operations

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 TENANT: 

 COTY INC.

 
	
  

 
	
 /s/ James E.
 Shiah

 	
  

 	
 By:

 	
 /s/ Jules P.
 Kaufman

 
	

 


 	
  

 	
  

 	

 


 
	
 (As to
 Tenant)

 	
  

 	
 Name: Jules
 P. Kaufman

 Title: SVP, General Counsel & Secretary

 









SECOND LEASE MODIFICATION AGREEMENT 


          AGREEMENT
(“Agreement”) made as of May 19, 2011 between EMPIRE STATE BUILDING COMPANY
L.L.C., a New York limited liability company with an office at 350 Fifth
Avenue, Suite 300, New York, New York 10118 (hereinafter called “Landlord”),
and COTY INC., a Delaware corporation with an office at 350 Fifth Avenue, New
York, New York 10118 (hereinafter called “Tenant”).


W I T N E S S E T H:


          WHEREAS,
Landlord and Tenant are the landlord and tenant, respectively, under that
certain lease dated as of July 14, 2008, covering certain space (the “Original
Demised Premises”) consisting of the entire rentable area of the fourteenth (14th)
floor, and a portion of the fifteenth (15th) floor, of the building
(“Building”) known as the Empire State Building, 350 Fifth Avenue, New York,
New York (the “Original Lease”), which Original Lease was modified by a certain
Commencement Date Agreement dated as of January 14, 2009, and by a certain
First Lease Modification Agreement dated as of March 17, 2009 (the “First
Modification”) (which Original Lease, as so modified, is hereinafter called the
“Lease”); and


          WHEREAS,
pursuant to the First Modification, certain storage space, designated as
Storeroom 15A and Storeroom 15C (collectively, the “Storage Space”), each on
the fifteenth (15th) floor of the Building, was added to the demised
premises under the Original Lease (so that as of the date hereof, the demised
premises under the Lease consists of the Original Demised Premises and the
Storage Space, collectively, the “Existing Demised Premises”); and


          WHEREAS,
the term of the Lease with respect to the Existing Demised Premises is
scheduled to expire on October 31, 2024 (which date is defined in the Lease as
the “Expiration Date”); and


          WHEREAS,
Landlord and Tenant wish to modify the Lease as follows: (i) by adding to the
demised premises thereunder certain space, consisting of the entire rentable
area of each of the sixteenth (16th) floor and the seventeenth (17th)
floor of the Building, approximately as shown on the space diagrams attached
hereto and made a part hereof as Exhibit A (collectively, the “First Additional
Office Premises”); (ii) by extending the term of the Lease with respect to the
Existing Demised Premises to January 31, 2030; and (iii) by otherwise modifying
the provisions of the Lease; all in accordance with the terms and conditions
hereinafter set forth.


          NOW,
THEREFORE, in consideration of the premises, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant hereby agree as follows:


          1.
Capitalized terms not defined in this Agreement shall have the meanings
ascribed to such terms under the Lease.


          2. The
First Additional Office Premises shall be deemed to be, and hereby is, added to
the demised premises under the Lease, for a term of years commencing on the
FAOP 





Commencement Date (as such term is defined in Article 3 of this
Agreement), and ending on January 31, 2030 (the “New Expiration Date”), unless
such term shall sooner terminate as in the Lease, as modified hereby, provided.
Except as otherwise set forth herein, the First Additional Office Premises
shall be leased to Tenant pursuant to all of the terms, covenants and
conditions of the Lease, as modified hereby. Landlord and Tenant agree that the
rentable square foot area of the First Additional Office Premises shall deemed
to be 101,736 rentable square feet, consisting of 52,574 rentable square feet
on the sixteenth (16th) floor (the “16th Floor Portion”)
and 49,162 rentable square feet on the seventeenth (17th) floor (the “17th Floor Portion”). The Existing
Demised Premises and the First Additional Office Premises are hereinafter
collectively called the “Expanded Demised Premises”. Unless the context
otherwise requires, all references in the Original Lease to the “demised
premises” shall be deemed to include the First Additional Office Premises,
after the FAOP Commencement Date.


          3. A. The
term “FAOP Commencement Date” when used in this Agreement shall mean the date
on which the last of the following shall have occurred: (i) Landlord delivers
vacant possession of the entire First Additional Office Premises to Tenant,
free of any occupancies or tenancies, in broom clean condition and free of any
construction debris, materials and equipment and otherwise in safe condition
for the performance of Tenant’s FAOP Initial Installation Work (as such term is
defined in Article 8C of this Agreement); and (ii) Landlord substantially
completes Landlord’s FAOP Work (as such term is defined in Article 8B of this
Agreement); provided, however, that in no event shall the FAOP Commencement
Date occur prior to April 1, 2012. Landlord shall give Tenant at least fifteen
(15) days’ prior written notice of the date Landlord will substantially
complete Landlord’s FAOP Work, and shall use commercially reasonable efforts to
cause the FAOP Commencement Date to occur on April 1, 2011.


                    B.
Landlord’s FAOP Work shall be deemed to have been substantially completed
despite the fact that minor insubstantial details of construction and
mechanical adjustments (i.e., “punch list items”) remain to be completed,
provided the First Additional Office Premises are accessible and reasonably
usable by Tenant for the purpose of effecting Tenant’s FAOP Initial
Installation Work; and provided, further, that the Building Systems (as such
term is defined in Article 8C(ii) of this Agreement) through which any services
which are required to be provided by Landlord to the First Additional Office
Premises under the Lease, as modified hereby, are also available in the First
Additional Office Premises (or in locations outside of the First Additional
Office Premises, if so provided under the Lease, as modified hereby) and
capable of providing the services that they are designed to provide, so that,
upon completion of such Tenant’s FAOP Initial Installation Work (or upon
completion of certain temporary or interim work by Tenant which is necessary to
provide electricity and/or chilled water service to the First Additional Office
Premises during the construction period), such services can be provided by
Landlord as required hereunder. Landlord shall, subject to the terms, covenants
and conditions of Article 24 of this Agreement, nevertheless perform all work
(“Landlord’s Punch List Work”) required in order to complete such punch list
items within thirty (30) days of the FAOP Commencement Date.


                    C.
Landlord shall, in accordance with the foregoing, fix the FAOP Commencement
Date and notify Tenant of the date so fixed. When the FAOP Commencement 


2





Date has so been determined, the parties hereto shall, within thirty
(30) days thereafter, at the request of either Landlord or Tenant, execute a
written agreement confirming such date as the FAOP Commencement Date. Any
failure of the parties to execute such written agreement shall not affect the
validity of the FAOP Commencement Date as fixed and determined by Landlord, as
aforesaid. Any dispute regarding the occurrence of the FAOP Commencement Date
shall be resolved by arbitration in accordance with the provisions of Article
41 of the Original Lease, as modified hereby.


                    D.
Tenant by entering into occupancy of the First Additional Office
Premises shall be conclusively deemed to have agreed that Landlord had
substantially completed Landlord’s FAOP Work, unless within twenty (20) days
after the date of such occupancy Tenant shall give written notice (hereinafter
called the “FAOP Punch List
Notice”) to Landlord specifying the respects in which the same were not in
satisfactory condition. The giving of the FAOP Punch List Notice shall have no
effect whatsoever upon the FAOP Commencement Date.


                    E.
In connection with the occurrence of the FAOP Commencement Date,
it is acknowledged as follows: that a portion of the First Additional Office
Premises (i.e., the 16th Floor Portion) is currently leased to
another tenant (the “FAOP Existing Tenant”), pursuant to a certain lease with
Landlord, the term of which is scheduled to expire on July 31, 2012 (the “FAOP
Existing Lease”); that the FAOP Existing Tenant has already vacated the First
Additional Office Premises, notwithstanding the fact that the term of such
lease has not yet expired; and that Landlord and Tenant are currently
negotiating regarding the execution and delivery of a certain lease
cancellation agreement (the “FAOP Existing Lease Cancellation Agreement”),
pursuant to which the term of the FAOP Existing Lease is cancelled effective on
or about July 1, 2011. Landlord shall use commercially reasonable efforts to
cause the FAOP Existing Tenant to execute and deliver the FAOP Existing Lease
Cancellation Agreement as expeditiously as reasonably possible. However, except
as otherwise set forth in Article 3F of this Agreement, Landlord shall have no
liability to Tenant whatsoever if, despite the exercise of such commercially
reasonable efforts by Landlord, the FAOP Commencement Date shall be delayed as
a result of the FAOP Existing Tenant failing or refusing to execute and deliver
the FAOP Existing Lease Cancellation Agreement. Landlord shall (i) keep Tenant
reasonably informed from time to time, on Tenant’s request, as to the status of
Landlord’s negotiation with the FAOP Existing Tenant concerning the FAOP Lease
Cancellation Agreement; and (ii) promptly notify Tenant when Landlord and the
FAOP Existing Tenant have executed and delivered the FAOP Existing Lease
Cancellation Agreement. In the event that Landlord and the FAOP Existing Tenant
fail to enter into the FAOP Existing Lease Cancellation Agreement on or before
July 31, 2012, and if the FAOP Existing Tenant holds over in the First
Additional Office Premises after such date, then Landlord, if necessary, shall
promptly commence summary proceedings to cause the FAOP Existing Tenant to
vacate such space.


                    F.
(i) If Landlord fails to cause the FAOP Commencement Date to
occur on April 1, 2012 (the “First FAOP Outside Date”), then, notwithstanding
anything contained hereinabove to the contrary, the FAOP Rent Commencement Date
(as such term is defined in Article 4A of this Agreement) shall be extended by
one (1) day for each day after the First FAOP Outside Date that Landlord fails
to cause the FAOP Commencement Date to occur; provided, however, that if
Landlord fails to cause the FAOP Commencement Date to occur on or before


3





the Self Help FAOP Outside Date (as such term is defined in Article
3F(ii) of this Agreement), then, notwithstanding anything contained hereinabove
to the contrary, the FAOP Rent Commencement Date shall be extended by two (2)
days for each day after the FAOP Self Help FAOP Outside Date that Landlord
fails cause the FAOP Commencement Date to occur. 


                              (ii)
If Landlord fails to cause the FAOP Commencement Date to occur on
or before June 1, 2012 (the “Self Help FAOP Outside Date”), then, Tenant
(without any obligation to do so) may give Landlord written notice (“Tenant’s
FAOP Self Help Notice”) that, unless Landlord causes the FAOP Commencement Date
to occur within ten (10) days after such notice shall have been given, Tenant
intends to perform any and all work necessary to complete Landlord’s FAOP Work
and/or otherwise cause the FAOP Commencement Date to occur. Any such work by
Tenant shall be performed in accordance with all applicable laws, rules and regulations
and all applicable provisions of the Lease, as modified hereby, other than any
such provisions requiring Landlord’s prior approval with respect to any
alterations by Tenant. Tenant agrees that Tenant’s FAOP Self Help Notice shall
specify (in bold face type and capital letters) that in the event Landlord does
not cause the FAOP Commencement Date to occur within such ten (10) day period,
then Tenant may exercise its “self-help” rights under this subparagraph (ii).
Tenant shall provide Landlord with reasonable written proof of the
out-of-pocket costs incurred by Tenant in connection with the work performed by
Tenant pursuant to this subparagraph (ii), and Landlord shall reimburse Tenant
for such costs within thirty (30) days after Landlord’s receipt of such proof.
In the event that Landlord fails to reimburse Tenant all or any part of such
costs within such thirty (30) day period, then Tenant shall be entitled to a
rent credit (i.e., Tenant may offset the amount of such reimbursement due
Tenant against rent) in the amount of the portion of such reimbursement that
Landlord has failed to pay Tenant (within such thirty (30) day period), with
interest at the Applicable Rate from the date such sums were to have been
reimbursed or paid to Tenant until the date recovered in full by Tenant. Such
rent credit shall be applied, until fully depleted, against the next fixed
annual rent payable under the Lease, as modified hereby. If Tenant shall
exercise its self-help rights under this subparagraph (ii), then (1) any extension
of the FAOP Rent Commencement Date to which Tenant is then entitled under
subparagraph (i) above shall only continue until the earlier to occur of (x)
the date that Tenant substantially completes Landlord’s FAOP Work or (y) the
date (as the same may be extended by any of the causes set forth in Article
22A(i) of the Original Lease) on which Tenant, using commercially reasonable
efforts to complete Landlord’s FAOP Work, should have completed such work, and
(2) Tenant shall no longer have the right to terminate this Agreement pursuant
to subparagraph (iii) below.


                              (iii)
If Landlord fails to cause the FAOP Commencement Date to occur on
or before August 1, 2012 (the “Second FAOP Outside Date”), and Tenant shall not
have elected to use self-help pursuant to subparagraph (ii) above, then,
notwithstanding anything contained hereinabove to the contrary, Tenant may
elect by written notice given to Landlord at any time after the Second FAOP
Outside Date to terminate this Agreement, and unless Landlord causes the FAOP
Commencement Date to occur within ten (10) days after Tenant gives such notice
to Landlord, then this Agreement shall be deemed terminated and the parties
shall have no further obligations or liabilities to each other hereunder,
except those expressly stated to survive the expiration or earlier termination
of this Agreement (but the Lease shall remain in full force and effect in
accordance with its terms).


4





                              (iv)
Notwithstanding the foregoing, the First FAOP Outside Date, the Self Help FAOP
Outside Date and the Second FAOP Outside Date shall each be extended, for no
more than thirty (30) days in the aggregate, by one day for each day that the
performance of Landlord’s FAOP Work is delayed as a result of any of the causes
set forth in Article 22A(i) of the Original Lease, other than Landlord’s
failure to enter into the FAOP Existing Lease Cancellation Agreement or the
holding over by the FAOP Existing Tenant in the premises demised under the FAOP
Existing Lease.


          4. A. (i)
Tenant shall pay Landlord fixed annual rent for the First Additional Office
Premises, commencing on the FAOP Rent Commencement Date, and otherwise in
accordance with Article 2A of the Lease, except that such fixed annual rent
shall be payable at the following rates:


	
  

 	
  

 
	
  

 	
 $4,272,912.00 per annum ($356,076.00 per month) from the FAOP Rent
 Commencement Date through the last day of the fifth FAOP Lease Year (as such
 term is defined in Article 4B of this Agreement);

 
	
  

 	
  

 
	
  

 	
 $4,679,856.00 per annum ($389,988.00 per month) from the first day of
 the sixth FAOP Lease Year through the last day of the tenth FAOP Lease Year;
 and

 
	
  

 	
  

 
	
  

 	
 $5,086,800.00 per annum ($423,900.00 per month) from the first day of
 the eleventh FAOP Lease Year through the New Expiration Date.

 


Should the FAOP Rent Commencement Date occur on any day other than the
first day of a month, then the fixed annual rent for the unexpired portion of
such month shall be adjusted and prorated on a per diem basis
based on the actual number of days in said month.


                              (ii)
The term “FAOP Rent Commencement Date” when used in this Agreement shall mean
the date which is twelve (12) months after the FAOP Commencement Date, as such
date may be extended pursuant to Article 3F(i) of this Agreement.


                    B.
The term “FAOP Lease Year” when used in this Agreement shall mean the twelve
(12) months commencing on the FAOP Rent Commencement Date (or if the FAOP Rent
Commencement Date is not the first day of a month, the first day of the month
following the month in which occurs the FAOP Rent Commencement Date) and each
subsequent period of twelve (12) months. The first FAOP Lease Year shall
include the period, if any, from the FAOP Rent Commencement Date to the end of
the month in which the FAOP Rent Commencement Date occurs.


          5. Tenant
shall pay Landlord operating expense escalation additional rent for the First
Additional Office Premises, in accordance with Article 2B of the Original
Lease, except that the term “Base Year” shall mean the twelve (12) month period
commencing on April 1, 2012 and ending March 31, 2013; the term “The
Percentage” shall mean 3.7395 percent (3.7395%); and the term “comparative
year” shall mean the twelve (12) month period commencing April 1, 2013 and
ending March 31, 2014, and each twelve (12) month period thereafter, in which
occurs any part of the term of this Lease, as modified hereby, with respect to 


5





the First Additional Office Premises; provided, however, that in the
event that the FAOP Commencement Date shall not occur by or before April 1,
2012, then the “Base Year” shall mean the twelve (12) month period commencing
on the FAOP Commencement Date, and the “comparative year” shall mean the twelve
(12) month period immediately following such Base Year, and each twelve (12)
month period thereafter, in which occurs any part of the term of the Lease, as
modified hereby, with respect to the First Additional Office Premises;
provided, further, that if the FAOP Commencement Date does not occur on the
first day of a month, then the “Base Year” shall mean as follows: (i) the
twelve (12) month period beginning on the first day of the month in which the
FAOP Commencement Date occurs, if the FAOP Commencement Date occurs on or before
the fifteenth day of such month, or (ii) the twelve (12) month period beginning
on the first day of the month following the month in which the FAOP
Commencement Date occurs, if the FAOP Commencement Date occurs after the
fifteenth day of the month in which such date occurs; and the “comparative
year” shall mean the twelve (12) month period immediately following such Base
Year, and each twelve (12) month period thereafter, in which occurs any part of
the term of the Lease, as modified hereby, with respect to the First Additional
Office Premises (subject, however, to the provisions of Article 2G of the
Original Lease with respect to any partial comparative year in which the FAOP
Commencement Date or the scheduled expiration date or sooner termination of the
term of the Lease, as modified hereby, occurs). The rent credit set forth in
the last sentence of Article 2B(ii) of the Original Lease shall not be
applicable to the First Additional Office Premises.


          6. Tenant
shall pay Landlord real estate tax escalation additional rent for the First
Additional Office Premises, in accordance with Article 2C of the Original
Lease, except that the term “base tax year” shall mean the New York City real
estate tax year commencing July 1, 2012 and ending June 30, 2013; the term “The
Percentage” shall mean 3.7395 percent (3.7395%); and the term “comparative
year” shall mean the New York City real estate tax year commencing July 1, 2013
and ending June 30, 2014, and each subsequent period of twelve (12) months (or
such other period of twelve (12) months occurring during the term of the Lease,
as modified hereby, as hereafter may be duly adopted as the tax year for real
estate tax purposes by the City of New York). The rent credit set forth in the
last sentence of Article 2C(ii)(a) of the Original Lease shall not be
applicable to the First Additional Office Premises. However, notwithstanding
the foregoing, if the FAOP Commencement Date shall not occur until after April
1, 2012, then Tenant shall be entitled to a rent credit in the amount of all
real estate tax escalation additional rent due under the Lease, as modified
hereby, with respect to the First Additional Office Premises for the period
from July 1, 2013 through the date which is fifteen (15) months after the FAOP
Commencement Date; and provided, further that if the FAOP Commencement Date
shall not occur by or before December 31, 2012, then the “base tax year” for
the First Additional Office Premises shall be the calendar year 2013, and the
comparative year for such space shall be the calendar year 2014 and each
subsequent period of twelve (12) months in which occurs any part of the term of
the Lease, as modified hereby, with respect to such space.


          7.
Landlord shall redistribute and furnish electricity to Tenant for
the First Additional Office Premises, on a submetering basis, in accordance
with the provisions of Article 3 of the Original Lease, except as follows:


6





                    A.
Landlord shall perform such work (“Landlord’s Submetering Work”)
as is necessary to furnish redistributed electricity to the First Additional
Office Premises on a submetering basis. Such work shall include, without
limitation, the installation of a submeter or submeters and the connection of
such submeter or submeters to the electrical panels for the First Additional
Office Premises (it being acknowledged and agreed, however, that such work that
is necessary to connect the submeter(s) to such electrical panels may not be
performed by Landlord unless and until Tenant performs such work as is
necessary to connect Tenant’s local electrical distribution to such panels
(“Tenant’s Electrical Panel Work”)). Landlord shall perform Landlord’s
Submetering Work at its sole cost and expense, except that Tenant shall
reimburse Landlord for the cost of connecting more than a total of twenty-four
(24) electrical panels to such submeter or submeters, which sums shall be
deemed additional rent under the Lease, as modified hereby, and due within
thirty (30) days after demand. Landlord shall, subject to the terms, covenants
and conditions of Article 24 of this Agreement, complete Landlord’s Submetering
Work within thirty (30) days after Landlord receives notice from Tenant that
Tenant has completed Tenant’s Electrical Panel Work (and Tenant has in fact
completed such work). If Landlord’s Submetering Work has not been completed by
the FAOP Commencement Date (so that Landlord may not yet furnish electricity to
the First Additional Office Premises on a submetering basis), then Tenant shall
pay, for the distribution of electric power and use of Landlord’s facilities to
provide electrical power to the First Additional Office Premises, a charge
equal to the amount that results from (i) multiplying $1.25 by the number of
rentable square feet within the First Additional Office Premises (i.e.,
101,736), (ii) dividing the result of (i) by 360, and then (iii) multiplying
the result of (ii) by the number of days, if any, until the appropriate
submeter(s) are installed and are properly functioning; provided, however, that
if Landlord’s Submetering Work has not been completed by the date that Tenant
occupies all or any part of the First Additional Office Premises for the
conduct of its business as a result of the failure of Tenant to complete
Tenant’s Electrical Panel Work or any other act or omission of Tenant, its
agents, employees or contractors that actually delays the completion of
Landlord’s Submetering Work, then the foregoing charge shall be changed as
follows: the reference to “$1.25” shall be changed to “$3.45”, effective as of
such date that Tenant occupies all or any part of the First Additional Office
Premises for the conduct of its business.


                    B. The electrical capacity
which Landlord shall be obligated to provide to the First Additional Office
Premises, for all purposes other than any Building air-conditioning systems and
equipment and any other Building Systems servicing the First Additional Office
Premises, shall be the FAOP Electrical Capacity, as hereinafter defined (and
not the 6 watts per rentable square foot of demand load described in Article
3C(ii) of the Original Lease). The term “FAOP Electrical Capacity” when used
herein, initially, shall mean the electrical capacity which is currently
available in the First Additional Office Premises for Tenant’s use (for all
purposes other than such Building air-conditioning equipment and Building
Systems) as of the date of this Agreement; provided, however, that if at any
time after the date of this Agreement Tenant shall provide Landlord with a
“load letter” from Tenant’s engineer or from a reputable electrical consultant
which substantiates (to the reasonable satisfaction of Landlord) Tenant’s need
for any additional electrical capacity for its operations in the First
Additional Office Premises, then Landlord, at Landlord’s sole cost and expense,
and subject to the terms, covenants and conditions of Article 24 of this
Agreement, shall perform all such work (collectively, “Landlord’s Additional
Electrical Capacity Work”) as is necessary to provide such additional


7





electrical capacity to the First Additional Office Premises (at the
existing electrical panels or then existing electrical busways located on each
applicable floor, as determined by Landlord) and the “FAOP Electrical Capacity”
shall be the total of such increased electrical capacity which is then
available to the First Additional Office Premises, provided that in no event
shall the FAOP Electrical Capacity ever exceed six (6) watts per usable square
foot of demand load (based on a usable square foot area of 76,959 square feet).
Subject to the terms, covenants and conditions of Article 14 of this Agreement,
Tenant agrees that such additional electrical capacity may be obtained from any
excess capacity then available in the Original Demised Premises.


          8. A.
Tenant expressly acknowledges that it has inspected the First Additional Office
Premises and agrees to accept the First Additional Office Premises broom clean
but otherwise in their “as is” condition, subject to Landlord’s obligation to
perform Landlord’s FAOP Work pursuant to Article 8B of this Agreement. Tenant
acknowledges that Landlord (i) has made no representation respecting the
physical condition of the First Additional Office Premises and (ii) shall have
no obligation to do any work in and to the First Additional Office Premises in
order to make them suitable and ready for occupancy and use by Tenant, except
as otherwise specifically provided in this Article.


                    B.
Landlord, at its expense, shall perform the following work
(“Landlord’s FAOP Work”) in order to prepare the First Additional Office
Premises for Tenant’s use and occupancy and as a condition precedent to the
FAOP Commencement Date (except for the work set forth in the second sentence of
subparagraph (ii) below, which work, if necessary, will not occur until after
the FAOP Commencement Date):


                              (i)
Landlord shall perform demolition work in the First Additional
Office Premises, including removal of ceiling, ductwork (except for duct work
which services other space in the Building), lighting and flooring, so as to
create a “slab to slab” condition in the First Additional Office Premises.


                              (ii)
Landlord shall perform all work necessary to remove all asbestos
from the First Additional Office Premises (other than shafts that run through
the core of the Building), and will obtain and provide to Tenant a duplicate
original counterpart of a Form ACP-5 and/or ACP-7 (as appropriate) for the First
Additional Office Premises. If during the performance of Tenant’s FAOP Initial
Installation Work, Tenant discovers any asbestos containing materials within
the First Additional Office Premises (a) that is required by law to be removed
in connection with such work or (b) that is located within the shafts that run
through the First Additional Office Premises (excluding the core of the
Building, other than piping and duct work required for tie-ins or connections,
which shall be abated as herein provided), then Landlord shall promptly remove
such asbestos containing materials at Landlord’s sole cost and expense. All
work required to be performed by Landlord pursuant to the subparagraph (ii) is
hereinafter referred to, collectively, as “Landlord’s Asbestos Removal Work.”
If Landlord is required to perform Landlord’s Asbestos Removal Work pursuant to
this subparagraph (ii) at any time after the occurrence of the FAOP
Commencement Date but before the occurrence of the FAOP Rent Commencement Date,
then, notwithstanding anything contained hereinabove to the contrary, the FAOP
Rent Commencement Date shall be extended on a day-for-day basis for each day
Landlord is performing such work and such performance actually delays the
completion of Tenant’s FAOP Initial Installation Work; it being understood and
agreed, however, that if Tenant 


8





is entitled to such an extension of the FAOP Rent Commencement Date,
the same shall continue until Landlord has completed Landlord’s Asbestos
Removal Work (including, without limitation, obtaining any sign-offs or
approvals that are required for Tenant to legally use the First Additional
Office Premises) and has vacated the First Additional Office Premises. If
Landlord is required to perform Landlord’s Asbestos Removal Work pursuant to this
subparagraph (ii) after the occurrence of the FAOP Rent Commencement Date,
then, notwithstanding anything contained hereinabove to the contrary, all fixed
annual rent, operating expense escalation additional rent and real estate tax
escalation additional rent attributable to the portion of the First Additional
Office Premises that Tenant is unable to use or occupy during the performance
of such work by Landlord shall be equitably and proportionately abated until
Landlord has completed Landlord’s Asbestos Removal Work (including, without
limitation, obtaining any sign-offs or approvals that are required for Tenant
to legally use the First Additional Office Premises) and has vacated the First
Additional Office Premises.


                              (iii)
Landlord shall flash patch the floors of the First Additional
Office Premises where necessary and perform all work necessary to cause the
floors to be reasonably smooth and reasonably flat in accordance with industry
standards.


                              (iv)
Landlord shall perform all work necessary to provide Tenant with adequate
points of connection to the Building’s Class E fire alarm system, but in no
event fewer than (x) ten (10) such points in a location or locations on the
16th Floor Portion and (y) ten (10) such points in a location or locations on
the 17th Floor Portion, so that Tenant may connect the fire alarm system for
the First Additional Office Premises to such Building System. Any
modifications, upgrades, additional panels, devices or equipment shall be
furnished and installed by Tenant.


                              (v)
Landlord shall effect all work necessary to provide a stand pipe connection to
the Building’s sprinkler system, in a location designated by Landlord on each
of the 16th Floor Portion and the 17th Floor Portion, so that Tenant may
provide sprinkler service in the First Additional Office Premises. Tenant, as
part of Tenant’s FAOP Initial Installation Work, shall effect all work
necessary to distribute such sprinkler service throughout the First Additional
Office Premises.


                              (vi)
Landlord shall install fireproofing and stopping at all locations required by
code and perform all other work in and to the First Additional Office Premises
so that such space may be delivered by Landlord to Tenant in compliance with
all applicable laws, rules and regulations and free of any violations of
record.


                              (vii)
Landlord shall (a) install new, Building standard radiator convector covers and
grills so that the same are primed and ready for painting and (b) perform all
work necessary to cause the existing radiators in the First Additional Office
Premises to be in good working order.


                              (viii)
Landlord shall effect all work necessary to cause the elevator call buttons,
lanterns, doors (including the hardware thereon) and service closets in the
First Additional Office Premises or which service the First Additional Office
Premises (whether or not in the First Additional Office Premises) to comply
with the requirements of the ADA.


9





                              (ix)
Landlord shall perform all work necessary to provide to Tenant the existing
electric closets located on each of the 16th Floor Portion and the 17th Floor Portion
stripped with main feeds in place.


                              (x)
Landlord shall install new, Building standard radiator valves which are
compatible with the Building’s direct digital control system.


Landlord shall perform Landlord’s FAOP Work in a good and workerlike
manner, and in a prompt and expeditious fashion after this Agreement has been
executed and delivered by Landlord and Tenant.


                    C. (i) Tenant, at its expense (except as
provided in subparagraph (iii) below), shall perform all other work (“Tenant’s
FAOP Initial Installation Work”) in and to the First Additional Office Premises
as is necessary for Tenant to conduct its business therein, and in order to
make such space suitable and ready for Tenant’s initial occupancy and use.
Tenant shall perform Tenant’s FAOP Initial Installation Work in a prompt and
expeditious manner following the FAOP Commencement Date, in accordance with the
provisions of Article 8 of the Original Lease, this Article and all other
applicable provisions of the Lease, as modified hereby, and in compliance with
all applicable laws, rules and regulations.


                              (ii)
Tenant shall submit to Landlord for Landlord’s approval, which approval shall
not be unreasonably withheld, conditioned or delayed with respect to
nonstructural interior alterations which do not adversely affect the proper
functioning of utility services, plumbing and electrical lines or other systems
of the Building (collectively, “Building Systems”), a full set of architectural
and engineering plans and specifications (including architectural plans and
specifications comprised of partition plans, reflected ceiling plans as well as
air conditioning, heating and all other mechanical drawings and electric plans)
in form suitable for filing with the appropriate agencies of the City of New
York to obtain such alteration or building permit to perform Tenant’s FAOP
Initial Installation Work. If Landlord withholds its approval of the plans and
specifications (in accordance with the foregoing), Landlord shall specify in
reasonable detail the basis for withholding such approval and Tenant shall make
appropriate modifications to the plans and specifications to correct or
eliminate the objections specified by Landlord in such disapproval and shall
resubmit the modified plans and specifications to Landlord within a reasonable
period of time after they are returned to Tenant unapproved. If Landlord fails
to respond to any such request for approval within ten (10) days after such plans
and specifications shall have been given to Landlord, Tenant may send Landlord
a second request for approval of such plans and specifications. If Landlord
fails to respond to such second request for approval within five (5) Business
Days after the same shall have been given to Landlord, then Landlord shall be
deemed to have approved such plans and specifications (provided such second
request specifies in bold face type and capital letters that Landlord shall be
deemed to have approved such plans and specifications if it fails to respond to
such second request within such five (5) Business Day period). The terms and
provisions set forth in this subparagraph (ii) governing the approval and
disapproval of plans and specifications shall apply equally to approving and
disapproving revised plans and specifications and all change orders. No work
may be performed without Landlord’s prior approval of the plans and
specifications and all contractors and sub-contractors engaged to perform
Tenant’s FAOP Initial Installation Work. No such work shall be commenced
without the plans and specifications 


10





therefor having been approved by Landlord and the appropriate permits
and approvals therefor having been issued by the City of New York Department of
Buildings and any other governmental agency having jurisdiction thereof.
Approval by Landlord of any plans or specifications shall not be deemed to
constitute a warranty or representation that such plans or specifications shall
conform to applicable laws and regulations or shall be approved by the
Department of Buildings or any other governmental agency. At Tenant’s request,
Landlord shall execute all required permit applications and other forms upon
submission of Tenant’s plans and specifications by Tenant but prior to Landlord’s
review of same, but execution of such forms by Landlord shall not constitute
approval of the alterations in question.


                              (iii)
Landlord shall provide Tenant an allowance of up to $6,980,688.00 to defray the
cost of construction of any Tenant’s FAOP Initial Installation Work which is
performed prior to the fourth anniversary of the FAOP Commencement Date. Such
sum (“Landlord’s FAOP Contribution”) shall be payable (as hereinafter provided)
against requisitions therefor accompanied by (a) the certification by Tenant’s
architect that the work described on such requisition has been completed
substantially in accordance with the plans and specifications theretofor
approved (or deemed approved) by Landlord, (b) a list specifying the work
performed for which such requisition is being submitted and (c) partial
conditional waivers of mechanics liens for all work for which such installment
of Landlord’s FAOP Contribution has been requisitioned, and partial
unconditional waivers of mechanics liens for all work for which payments were
made by Landlord with respect to previous requisitions, from each contractor,
sub-contractor, vendor and supplier of labor and materials for whom and to the
extent such installment of Landlord’s FAOP Contribution is being requisitioned;
it being agreed, however, that Tenant shall not be required to submit such lien
waivers for (x) any such contractor or sub-contractor performing work the cost
of which shall be less than $10,000.00, or (y) for any such vendor or supplier
providing materials the cost of which (in the aggregate for the entire job, and
not for such installment) shall be less than $250,000.00. Payments on account
of Landlord’s FAOP Contribution shall not be payable more frequently than
monthly. Each such installment of Landlord’s FAOP Contribution shall be equal
to (1) the total amount of Landlord’s FAOP Contribution requisitioned by Tenant
as of the date of the most recent requisition (including the amount of the most
recent requisition), less (2) the total amount of Landlord’s FAOP Contribution
paid to Tenant as of the date the most recent requisition. To illustrate such
calculation, and assuming, for example, that the total of all requisitions
submitted by Tenant (including the most recent requisition) is $100,000, of
which $60,000 has been paid to Tenant, and $40,000 is the unpaid amount of the
most recent requisition, then the amount of such installment shall be $40,000,
calculated as follows: (1) $100,000, less (2) $60,000, equals $40,000. Notwithstanding
anything contained herein to the contrary, no portion of Landlord’s FAOP
Contribution shall be applied by Tenant against expenses for furniture, office
equipment or other personal property, and not more than $1,047,103.20 may be
applied by Tenant for architectural and engineering fees or other soft costs
relating to Tenant’s FAOP Initial Installation Work (which payments of
Landlord’s FAOP Contribution for such architectural and engineering fees and
other soft costs shall be made by Landlord upon Tenant’s submission of invoices
therefor (whether before or after the FAOP Commencement Date) which have been
approved for payment by an officer of Tenant, anything contained herein to the
contrary notwithstanding). Any dispute regarding Landlord’s FAOP Contribution
shall be resolved by expedited arbitration in accordance with the provisions of
Article 41 of the Original Lease. In 


11





the event that any such dispute shall be resolved in Tenant’s favor, so
that Landlord shall be obligated to pay Tenant all or any part of Landlord’s
FAOP Contribution, but Landlord fails to do so within fifteen (15) days after
such decision is rendered in such arbitration proceeding, then Tenant shall be
entitled to a rent credit (i.e., Tenant may offset such amount due Tenant against
rent) in the amount of the portion of Landlord’s FAOP Contribution which
Landlord has failed to pay Tenant (within such fifteen (15) day period) in
accordance with the decision in such arbitration proceeding, with interest at
the Applicable Rate from the date such sums were to have been reimbursed or
paid to Tenant from Landlord’s FAOP Contribution until the date recovered in
full by Tenant, and with all reasonable legal fees incurred by Tenant in
connection with such dispute (provided Tenant furnishes Landlord with paid
invoices or other reasonably sufficient evidence of such fees). Such rent
credit shall be applied, until fully depleted, against the next fixed annual
rent payable under the Lease, as modified hereby. As an inducement to Tenant to
execute and deliver this Agreement, Landlord shall deposit in escrow with
Landlord’s attorneys, David J. Bleckner, P.C. (“Escrowee”), concurrently with
the execution and delivery of this Agreement by Landlord and Tenant, the sum of
$6,980,688.00 to be held by Escrowee as security for the payment of Landlord’s
FAOP Contribution to Tenant, in accordance with the terms, covenants and
conditions of that certain letter agreement of even date herewith among
Landlord, Tenant and Escrowee, a copy of which is attached hereto and made a
part hereof as Exhibit E.


                              (iv)
The installation or connection to the Building systems of each
item of Tenant’s property and systems shall be performed at Tenant’s expense
(subject to subparagraph (iii) above) and, unless otherwise provided in the
Lease, as modified hereby, by Tenant using contractors approved by Landlord in
accordance with the applicable provisions of the Lease, as modified hereby.


                              (v)
Notwithstanding anything contained herein to the contrary, Tenant
shall maintain, at Tenant’s expense, in addition to any other insurance
required pursuant to the Lease, as modified hereby, with respect to
alterations, a Builders “All Risk” insurance
policy (Broad Form) covering the full replacement cost of Landlord’s FAOP Work
and Tenant’s FAOP Initial Installation Work and the materials and supplies
delivered and stored in the First Additional Office Premises for the purpose of
being incorporated in such work.


                              (vi)
Notwithstanding anything contained herein to the contrary, Tenant
shall deliver to the Landlord final record drawings of Tenant’s FAOP Initial
Installation Work, including, as may be pertinent to the work performed, a
reflected ceiling plan, mechanical and electrical drawings, partition plan and
any other drawings which may be required to indicate accurately the layout and
systems of the First Additional Office Premises. Tenant shall require its
architect to load and maintain such record plans on a CADD system and to
deliver diskettes or other medium suitable for Landlord’s needs and compatible,
if feasible, with Landlord’s computer applications, so as to enable Landlord to
use such CADD-saved plans.


                              (vii)
Landlord shall, at the request of Tenant, schedule the Building’s
freight elevator (or a passenger elevator converted for use as a freight
elevator) for Tenant’s move into the First Additional Office Premises, after
6:00 p.m. and before 7:00 a.m. on Business Days (and at any time on weekends).
Such use shall be subject to a prior reservation by another 


12





tenant and/or the need by Landlord for the use of such elevator for
other operating or construction purposes. Notwithstanding anything contained in
the Lease, as modified hereby, to the contrary, in connection with Tenant’s
FAOP Initial Installation Work and initial move-in to the First Additional
Office Premises, it is agreed that Tenant shall not be required to pay for the
first eighty (80) hours of such freight elevator use on an after-hours basis.
Any other after-hours use of the freight elevator by Tenant shall be subject to
the applicable provisions of the Lease, including, without limitation,
Landlord’s standard charges therefor.


                              (viii)
Tenant agrees that Tenant’s FAOP Initial Installation Work shall include,
without limitation, all work necessary to tie all HVAC controls for the First
Additional Office Premises into the Building’s direct digital control system.


                    D.
It is acknowledged and agreed that Tenant, at its expense (except as
hereinabove provided) and as part of Tenant’s FAOP Initial Installation Work,
shall provide, and shall effect all work (the “Tenant’s FAOP A/C Work”)
necessary to install, new chilled water cooled air-conditioning units for the
First Additional Office Premises (the “FAOP A/C Units”), with a total cooling
capacity of 120 tons for each of the 16th Floor Portion and the 17th Floor Portion (for a total
cooling capacity in the First Additional Office Premises of 240 tons), each of
which units shall be of equal or better quality to the current Building
standard air-conditioning unit, the York Floor Mounted Model Solution XTI.
Tenant’s FAOP A/C Work shall include, without limitation, (i) the connection of
the FAOP A/C Units to the Building Chilled Water and Warm Water Circulating
System, and (ii) all work necessary to install all associated duct work, fans,
diffusers and other equipment necessary to distribute air-conditioning service
throughout the First Additional Office Premises from the FAOP A/C Units.


                    E.
It is acknowledged and agreed that Tenant, at its expense (except as
hereinabove provided) and as part of Tenant’s FAOP Initial Installation Work,
shall effect all work (the “FAOP Bathroom Renovation Work”) necessary to
renovate and refurbish all of the existing core bathrooms in each of the 16th
Floor Portion and the 17th Floor Portion, so that the condition of,
and quality of installation in, all such bathrooms shall be at least equivalent
to the condition of, and quality of installation in, the core bathrooms located
in 14th floor portion of the Original Demised Premises as of the date of this
Agreement.


                    F.
Reference is hereby made to the Environmental Design Guidelines set forth in
Exhibit B attached hereto and made a part hereof, which include certain
materials and/or items of work required in order to obtain LEED-CI designation
with respect to an office space construction project (it being understood and
agreed, however, that the intent of the Environmental Design Guidelines is to
optimize performance of the First Additional Office Premises, not just to
obtain LEED-CI designation). Notwithstanding anything contained in the Lease,
as modified by this Agreement, to the contrary, Tenant shall (i) submit its
plans and specifications for Tenant’s FAOP Initial Installation Work to
Landlord’s project manager, Jones Lang LaSalle (“JLL”), concurrently with
Tenant’s submission of such plans and specifications to Landlord, and (ii)
incorporate into such plans and specifications as part of Tenant’s FAOP Initial
Installation Work such sustainability measures as are recommended by JLL to
Tenant (the “Recommended Sustainability Measures”); provided, however, that (a)
the Recommended Sustainability Measures shall be limited solely to the items
set forth in said Exhibit B, and JLL 


13





shall designate such Recommended Sustainability Measures to Tenant in
reasonable detail and within the same time periods applicable to Landlord with
respect to Tenant’s request for Landlord’s approval of such plans and
specifications (as such time periods are more particularly set forth in Article
8C(ii) of this Agreement); (b) with respect to items A1, A2 and A4 of the
Environmental Design Guidelines, JLL demonstrates, to the reasonable
satisfaction of Tenant and Tenant’s consultants, that such Recommended
Sustainability Measures will result in the payback to, or the recouping by,
Tenant of the cost thereof over a period of not more than five (5) years; (c)
in no event shall the Recommended Sustainability Measures materially delay the
performance of Tenant’s FAOP Initial Installation Work (as reasonably
determined by Tenant); and (d) in no event shall Tenant be required to perform
any structural alterations, alterations to any of the Building Systems or
alterations outside of the First Additional Office Premises, in connection with
the Recommended Sustainability Measures.


          9. Article
4 of the Lease shall be deemed to be, and hereby is, modified as follows:


                    A.
With respect to the First Additional Office Premises, the references in Article
4J(ii) of the Original Lease to “Tenant’s Initial Installation Work” shall mean
“Tenant’s FAOP Initial Installation Work”.


                    B.
Anything contained in said Article 4 of the Original Lease to the contrary
notwithstanding, the provisions of paragraphs B, C, E, J, M and N of said Article
4 shall not apply to, and Landlord’s consent shall not be required, with respect
to one or more sub-lettings to a third party, from time to time, of up to an
aggregate of 15,000 rentable square feet of the 15th Floor Portion referred to
in Article 4I of the Original Lease, provided that (i) Tenant shall give
Landlord at least fifteen (15) days’ prior written notice of any such
transaction, which notice shall include a copy of the executed sublease
agreement for any such transaction; (ii) the term of any such sublease
agreement shall not expire later than the last day of the tenth FAOP Lease
Year; (iii) any such subtenant shall be reputable and financially responsible;
(iv) Tenant shall not be in default under the Lease, as modified hereby, beyond
any applicable notice and/or cure period at the time Tenant enters into any
such sublease; and (v) any such transaction shall comply with the following
provisions of said Article 4: paragraph F (other than the references to
Landlord’s right of recapture and right to share in profits) and paragraph K
(and the following provisions of said Article 4 shall apply to any such
transaction: the fourth, sixth, seventh, eighth, ninth and tenth sentences of
paragraph A).


                    C.
The reference to the number “six (6)” in Article 4F(iii)(d) of the Original
Lease shall be changed to the number “twelve (12)”. Additionally, in no event
may any assignment or subletting be made which results in the occupancy of any
full floor included in the Expanded Demised Premises by more than three (3)
occupants (including Tenant).


          10. Article
31 of the Lease shall be deemed to be, and hereby is, modified with respect to
the First Additional Office Premises as follows:


                    A.
The third sentence of Article 31A(i) of the Original Lease shall be deemed to
be, and hereby is, modified so that Landlord shall furnish heat to the First
Additional Office Premises so as to provide for reasonably comfortable
occupancy thereof, for normal office use, 


14





during all Business Hours on all Business Days, during the cold season,
at no charge to Tenant. Air conditioning service shall be provided by the FAOP
A/C Units to be installed by Tenant, and Landlord shall provide Tenant with 240
tons per annum of chilled water from the Building Chilled Water and Warm Water
Circulating System in connection with the operation of such Units, at no charge
to Tenant during Business Hours. Such chilled water service shall be provided
to Tenant in accordance with the provisions of Article 24C of the Original
Lease and, for purposes of subparagraph (v) of Article 24C of the Original
Lease, Tenant acknowledges that it has been advised by Landlord that the
Expanded Demised Premises and all of the Option Space/ROFO Space are in the
same zone and Landlord agrees that such space will remain in the same zone
during the term of the Lease (as modified hereby).


                    B.
Article 31A(ii) of the Original Lease shall be deemed to be, and
hereby is, modified so that, if (i) the FAOP A/C Units to be installed by
Tenant shall provide a minimum of 240 tons of cooling capacity to the First
Additional Office Premises (with a minimum of 120 tons to the 16th Floor
Portion and 120 tons to the 17th Floor Portion), (ii) occupancy levels in the
First Additional Office Premises will not exceed one (1) person per one hundred
(100) square feet of rentable area (and such occupants are evenly distributed
throughout the First Additional Office Premises), (iii) the electrical load in
the First Additional Office Premises shall not exceed six (6) watts per usable
square foot on a demand load basis and (iv) Tenant shall at all times comply
with applicable and relevant Building regulations affecting the operation of
the FAOP A/C Units, then the FAOP A/C Units and the Building heating system
shall be capable of maintaining the following conditions: (i) a minimum average
indoor dry bulb temperature of not less than 68 degrees Fahrenheit, whenever
the outdoor dry-bulb temperature, during Business Hours, is lower than 65
degrees and not lower than 0 degrees Fahrenheit; and (ii) a minimum average
indoor dry-bulb temperature of no higher than 75 degrees Fahrenheit, whenever
the outdoor dry-bulb temperature, during Business Hours, is higher than 65
degrees and not higher than 95 degrees Fahrenheit, and the outdoor wet-bulb
temperature does not exceed 75 degrees Fahrenheit.


                    C.
Article 31 C of the Original Lease shall be deemed to be, and hereby is,
modified so that any Supplemental A/C Unit(s) to be installed by or on behalf
of Tenant in and for the First Additional Office Premises shall be a water
cooled unit (and not an air-cooled unit). Additionally, as a condition to the
installation of any such Supplemental A/C Unit(s) in and for the First
Additional Office Premises, Tenant shall provide Landlord with a letter from a
reputable HVAC consultant or Tenant’s engineer confirming that the installation
of such equipment is required or desired based on Tenant’s plans and
specifications for Tenant’s FAOP Initial Installation Work and Tenant’s
proposed business operations in the First Additional Office Premises. In the
event that Tenant provides such confirmation letter and thereafter installs any
such Supplemental A/C Unit(s) in and for the First Additional Office Premises,
then Landlord shall provide Tenant with up to 30 tons per annum of chilled water
from the Building Chilled Water and Warm Water Circulating System for the
operation of such unit(s) (which 30 tons of chilled water shall be in addition
to the 240 tons per annum of chilled water to be supplied by Landlord for the
FAOP A/C Units pursuant to paragraph A above). It is acknowledged and agreed by
Tenant that the use of such chilled water for any Supplemental A/C Unit(s) in
the First Additional Office Premises shall be subject to the following
limitations: (i) during Business Hours, it shall be used as chilled water
(which runs through a coil in such Supplemental A/C 


15





Unit(s)) in order to provide cooling in the First Additional Office
Premises; and (ii) outside of Business Hours, the chilled water shall be used
as if it were condenser water (which utilizes a compressor in such Supplemental
A/C Unit(s)) in order to provide cooling to the First Additional Office
Premises. Landlord, at Tenant’s expense, shall (a) modify one (1) of the
existing taps on the 16th Floor Portion and/or one of the existing
taps on the 17th Floor Portion in order to provide up to a total of
thirty (30) tons of additional chilled water service for any such Supplemental
A/C Unit(s) (it being acknowledged that there are currently two (2) taps on
each such floor, each with the capacity to provide sixty (60) tons of chilled
water service, as required for the operation of the FAOP A/C Units), and (b) a
BTU submeter(s) to measure Tenant’s actual consumption of such chilled water.
Tenant shall reimburse Landlord for any and all actual out-of-pocket costs
incurred by Landlord in connection with the modification of such taps and the
purchase and installation of such BTU submeter(s), which costs shall be deemed
additional rent under the Lease, as modified hereby, and due within thirty (30)
days after demand, accompanied by documentation reasonably supporting such
costs. Tenant shall pay Landlord a charge in the amount of $2,000 per ton per
annum (“Landlord’s Annual Supplemental Chilled Water Charge”) for chilled water
used in connection with any Supplemental A/C Unit(s) in the First Additional
Office Premises, as measured by such BTU submeter(s), which Landlord’s Annual
Supplemental Chilled Water Charge shall be subject to adjustment as hereinafter
provided, and shall be deemed additional rent under the Lease, as modified
hereby, and due within thirty (30) days after demand. Except as otherwise
provided above, there shall be no tap-in fees or charges associated with
accessing the Building’s Chilled Water and Warm Water Circulating System.
Landlord’s Annual Supplemental Chilled Water Charge shall be adjusted effective
as of the first month of each FAOP Lease Year hereunder (but never decreased
below $2,000) by multiplying Landlord’s Annual Supplemental Chilled Water
Charge by the percentage difference between the Price Index (as such term is
hereinafter defined) for the month prior to such first month and the Base Price
Index (as such term is hereinafter defined), and by adding the result to the
Landlord’s Annual Supplemental Chilled Water Charge. The term “Price Index”
when used herein shall mean the “Consumer Price Index” published by the Bureau
of Labor Statistics of the U.S. Department of Labor, All Items, New York, NY –
Northeastern, N.J., for urban wage earners and clerical workers, or a successor
or substitute index approximately adjusted. The term “Base Price Index” shall
mean the Price Index for December 2012. Anything contained herein to the
contrary notwithstanding, in the event that the Price Index ceases to use
1982-84=100 as the basis of calculation, or if a substantial change is made in
the terms or number of items contained in the Price Index, then the Price Index
shall be adjusted to the figure that would have been arrived at had the manner
of computing the Price Index in effect at the date of this Agreement not been
altered. In the event such Price Index (or a successor or substitute index) is
not available, a reliable governmental or other non-partisan publication
evaluating the information theretofore used in determining the Price Index
shall be used.


          11. The
following provisions of the Original Lease shall not be applicable to the First
Additional Office Premises: paragraphs A, B, C, D, E, F and H of Article 1; the
fixed annual rental rates set forth in Article 2A; paragraphs A, B, C, E and F
of Article 23; Article 40; Article 43A; and Exhibits A, H, I and J (except that
a new Exhibit H in the form attached to and made a part of this Agreement shall
be deemed to be, and hereby is, added to the Original Lease). 


16





          12. The
term of the Lease with respect to the Original Demised Premises shall be deemed
to be, and hereby is, extended for a period of five (5) years and three (3)
months, commencing on November 1, 2024 and ending on January 31, 2030 (the “ODP
Extension Period”), unless such term shall sooner terminate as in the Lease, as
modified hereby, provided. During the ODP Extension Period, the Original
Demised Premises shall be leased to Tenant pursuant to all of the terms,
covenants and conditions of the Lease, as modified hereby, except as follows:


                    A.
During the ODP Extension Period, Tenant shall pay Landlord fixed annual rent
for the Original Demised Premises at a rate equal to the lesser of the
following: (i) one hundred percent (100%) of the fair and reasonable annual
market rental rate for the Original Demised Premises as of the first day of the
ODP Extension Period, taking into account the rentals at which leases are being
concluded for comparable space in the Building and in comparable buildings in
the same rental area as the Building, and all other relevant factors
(including, without limitation, the new Base Year and base tax year applicable
to the ODP Extension Period); and (ii) the aggregate of the fixed annual rental
rate payable for the Original Demised Premises as of October 1, 2024, plus the
sum of the operating expense and real estate tax escalation additional rents
payable for the Original Demised Premises under paragraphs B and C of Article 2
of the Original Lease, respectively, for the last twelve (12) months of the
initial term of the Lease, as modified hereby, with respect to the Original
Demised Premises (i.e., the twelve (12) month period from November 1, 2023
through October 31, 2024). The fair and reasonable annual market rental rate
for the Original Demised Premises effective as of the commencement of the ODP
Extension Period shall take into account, also, the five (5) year, three (3)
month term of the extension, and it shall be determined during the last six (6)
months of the initial term of the Lease, as modified hereby, with respect to
the Original Demised Premises (i.e., during the six (6) month period from May
1, 2024 through October 31, 2024). On or before the commencement of such six
(6) month period, Landlord shall notify Tenant of Landlord’s determination of
such fair and reasonable annual market rental rate for the Original Demised
Premises. Within thirty (30) days after the later of (x) the commencement of
such six (6) month period, or (y) Tenant’s receipt of Landlord’s determination
of such fair and reasonable annual market rental rate, Tenant shall respond to
Landlord’s notice with Tenant’s determination of the fair and reasonable annual
market rental rate for the Original Demised Premises. Upon receipt of such
notice from Tenant, Landlord and Tenant shall seek to agree as to the amount of
such fair and reasonable annual market rental rate for the Original Demised
Premises. If they shall not agree as to such rate within thirty (30) days after
receipt of such notice from Tenant, then and in such event said fair and
reasonable annual market rental rate shall be determined by appraisal as
provided in Article 32A(e) of the Original Lease. If at the commencement date
of the ODP Extension Period, the amount of the fixed annual rental rate payable
during said period in accordance with the foregoing provisions shall not have
been determined, then, pending such determination, Tenant shall pay fixed
annual rent at a rate equal to 100% of (x) the fixed annual rental rate payable
under the Lease, as modified hereby, with respect to the Original Demised
Premises, as of October 1, 2024, plus (y) the sum of the operating expense and
real estate tax escalation additional rent payable under paragraphs B and C of
Article 2 of the Original Lease, respectively, for the last twelve (12) months
of the initial term of the Lease, as modified hereby, with respect to the
Original Demised Premises (the “ODP Temporary Rate”). After the determination
by appraisal or agreement, as the case may be, of the fair and reasonable
annual 


17





market rental rate for the Original Demised Premises, if the fixed
annual rental rate payable pursuant to this Article is less than the ODP
Temporary Rate, Landlord shall promptly pay to Tenant the difference between
the rent theretofore paid at the ODP Temporary Rate and the lesser rental rate
determined after the appraisal or agreement, as the case may be (or, at
Landlord’s option, Tenant shall be entitled to a rent credit in such amount, to
be applied, until fully depleted, against the next rent due under the Lease, as
modified hereby, with respect to the Original Demised Premises); and the lesser
fixed annual rental rate so determined after the appraisal shall be payable
during the ODP Extension Period.


                    B.
During the ODP Extension Period, Tenant shall continue to pay
Landlord operating expense escalation additional rent for the Original Demised
Premises, in accordance with Article 2B of the Original Lease, except that the
Base Year shall mean the calendar year 2024, and the first “comparative year”
shall mean the calendar year 2025.


                    C.
During the ODP Extension Period, Tenant shall continue to pay Landlord real
estate tax escalation additional rent for the Original Demised Premises, in
accordance with Article 2C of the Original Lease, except that the “base tax
year” shall mean the New York City real estate tax year commencing July 1, 2024
and ending June 30, 2025; and the first “comparative year” shall mean the New York
City real estate tax year commencing July 1, 2025 and ending June 30, 2026.


                    D.
During the ODP Extension Period, Landlord shall continue to furnish and
redistribute electricity to Tenant on a submetering basis, in accordance with
the provisions of Article 3 of the Original Lease.


                    E.
Tenant shall continue in possession of the Original Demised Premises, at the
commencement of the ODP Extension Period in its “as is” condition, and Tenant
agrees that Landlord shall have no obligation to perform any work in or to the
Original Demised Premises to make such space suitable and ready for Tenant’s
continued occupancy and use during the ODP Extension Period. Nothing contained
in this Article 12E shall be deemed to limit Landlord’s obligations with
respect to the repair and/or restoration of the Original Demised Premises and
the First Additional Office Premises as set forth in the Lease, as modified
hereby, including, without limitation, Landlord’s obligations set forth in Articles
10, 11 and 14 of the Original Lease.


          13. The
term of the Lease with respect to the Storage Space shall be deemed to be, and
hereby is, extended for the ODP Extension Period, unless such term shall sooner
terminate as in the Lease, as modified hereby, provided. During the ODP
Extension Period, the Storage Space shall be leased to Tenant pursuant to all
of the terms, covenants and conditions of the Lease, as modified hereby, except
as follows:


                    A.
During the ODP Extension Period, Tenant shall pay Landlord fixed annual rent
for the Storage Space at a rate equal to the lesser of the following: (i) one
hundred percent (100%) of the fair and reasonable annual market rental rate for
the Storage Space as of the first day of the ODP Extension Period, taking into
account the rentals at which leases are being concluded for comparable space in
the Building and in comparable buildings in the same rental area as the
Building, and all other relevant factors (including, without limitation, the
new Base 


18





Year and base tax year applicable to the ODP Extension Period); and
(ii) the aggregate of the fixed annual rental rate payable for the Storage
Space under the First Modification as of October 1, 2024, plus the sum of the
operating expense and real estate tax escalation additional rents payable under
Articles 3 and 4 of the First Modification, respectively, for the Storage Space
for the last twelve (12) months of the initial term of the Lease, as modified
hereby, with respect to the Storage Space (i.e., the twelve (12) month period
from November 1, 2023 through October 31, 2024). The fair and reasonable annual
market rental rate for the Storage Space effective as of the commencement of
the ODP Extension Period shall take into account, also, the five (5) year,
three (3) month term of the extension, and it shall be determined during the
last six (6) months of the initial term of the Lease, as modified hereby, with
respect to the Storage Space (i.e., during the six (6) month period from May 1,
2024 through October 31, 2024). On or before the commencement of such six (6)
month period, Landlord shall notify Tenant of Landlord’s determination of such
fair and reasonable annual market rental rate for the Storage Space. Within
thirty (30) days after the later of (x) the commencement of such six (6) month
period, or (y) Tenant’s receipt of Landlord’s determination of such fair and
reasonable annual market rental rate, Tenant shall respond to Landlord’s notice
with Tenant’s determination of the fair and reasonable annual market rental
rate for the Storage Space. Upon receipt of such notice from Tenant, Landlord
and Tenant shall seek to agree as to the amount of such fair and reasonable
annual market rental rate for the Storage Space. If they shall not agree as to
such rate within thirty (30) days after receipt of such notice from Tenant,
then and in such event said fair and reasonable annual market rental rate shall
be determined by appraisal as provided in Article 32A(e) of the Original Lease.
If at the commencement date of the ODP Extension Period, the amount of the
fixed annual rental rate payable during said period in accordance with the
foregoing provisions shall not have been determined, then, pending such
determination, Tenant shall pay fixed annual rent at a rate equal to 100% of
(x) the fixed annual rental rate payable under the Lease with respect to the
Storage Space, as of October 1, 2024, plus (y) the sum of the operating expense
and real estate tax escalation additional rents payable under paragraphs 3 and
4 of the First Modification, respectively, for the Storage Space, for the last
twelve (12) months of the initial term of the Lease, as modified hereby, with
respect to the Storage Space (the “ODP Storage Space Temporary Rate”). After
the determination by appraisal or agreement, as the case may be, of the fair
and reasonable annual market rental rate for the Storage Space, if the fixed
annual rental rate payable pursuant to this Article is less than the ODP
Storage Space Temporary Rate, Landlord shall promptly pay to Tenant the
difference between the rent theretofore paid at the ODP Storage Space Temporary
Rate and the lesser rental rate determined after the appraisal or agreement, as
the case may be (or, at Landlord’s option, Tenant shall be entitled to a rent
credit in such amount, to be applied, until fully depleted, against the next
rent due under the Lease, as modified hereby, with respect to the Storage
Space); and the lesser fixed annual rental rate so determined after the
appraisal shall be payable during the ODP Extension Period.


                    B.
During the ODP Extension Period, Tenant shall continue to pay
Landlord operating expense escalation additional rent for the Storage Space, in
accordance with the provisions of Article 3 of the First Modification, except
that the Base Year shall mean the calendar year 2024, and the first
“comparative year” shall mean the calendar year 2025.


                    C.
During the ODP Extension Period, Tenant shall continue to pay Landlord real
estate tax escalation additional rent for the Storage Space, in accordance with
the provisions


19





of Article 4 of the First Modification, except that the “base tax year”
shall mean the New York City real estate tax year commencing July 1, 2024 and
ending June 30, 2025; and the first “comparative year” shall mean the New York
City real estate tax year commencing July 1, 2025 and ending June 30, 2026.


                    D.
During the ODP Extension Period, Landlord shall continue to
furnish and redistribute electricity to Tenant on a rent inclusion basis, in
accordance with the provisions of Article 6 of the First Modification.


                    E.
Tenant shall continue in possession of the Storage Space, at the commencement
of the ODP Extension Period in its “as is” condition, and Tenant agrees that
Landlord shall have no obligation to perform any work in or to the Storage
Space to make such space suitable and ready for Tenant’s continued occupancy
and use during the ODP Extension Period. Nothing contained in this Article 13E
shall be deemed to limit Landlord’s obligations with respect to the repair
and/or restoration of the Storage Space as set forth in the Lease, as modified
hereby, including, without limitation, Landlord’s obligations set forth in
Articles 10, 11 and 14 of the Original Lease.


          14. Article
3 of the Original Lease shall be deemed to be, and hereby is, modified so that
Landlord may, from time to time, following the expiration of the first FAOP
Lease Year (but not more frequently than once in any FAOP Lease Year), cause
Landlord’s electrical consultant to determine Tenant’s electrical requirements
for the Expanded Demised Premises over the twelve (12) months immediately
preceding each such determination. If Landlord’s electrical consultant shall
determine that Tenant’s electrical requirements are less than the electrical
capacity which Landlord is responsible hereunder to provide to the Expanded
Demised Premises (i.e., six (6) watts per rentable square foot of demand load
in the Original Demised Premises and the FAOP Electrical Capacity in the First
Additional Office Premises), then Landlord may, in its sole discretion, at any
time following the sixtieth (60th) day after giving Tenant notice
(hereinafter referred to as the “Electric Recapture Notice”) of Landlord’s
intent to do so, perform all work (collectively, “Landlord’s Excess Capacity
Recapture Work”) required in order to recapture up to eighty percent (80%) of
any such excess electrical capacity then so determined to exist (provided such
recapture of electrical capacity has no adverse impact (other than to a de
minimis extent) on the operation of Tenant’s business in the Expanded Demised
Premises), unless Tenant shall have objected to such recapture in the manner
hereinafter provided within such sixty (60) day period. The Electric Recapture
Notice shall be (a) given not later than sixty (60) days following the
determination of such excess capacity and (b) accompanied by an explanation in
reasonable detail of how the determination of such excess capacity was made
(including, without limitation, calculations thereof prepared by a licensed
electrical engineer). Any objection to such recapture of excess electrical
capacity shall be in writing specifying in reasonable detail the reasons for
such objection, including, without limitation, calculations of Tenant’s
electrical requirements prepared by a licensed electrical engineer. Any such
dispute shall be resolved pursuant to the dispute resolution provisions of
Article 3B(iv) of the Original Lease. If it then shall be determined that
excess capacity exists, then upon not less than thirty (30) days’ notice to
Tenant and subject to the terms, covenants and conditions of Article 24 of this
Agreement, Landlord may perform Landlord’s Excess Capacity Recapture Work in
order to recapture up to eighty percent (80%) of such excess capacity. Tenant
acknowledges that the 


20





purpose of this Article is to foster conservation of electric
consumption in the Building. Notwithstanding the foregoing, if Landlord recaptures
any such excess capacity and Tenant thereafter provides Landlord with a “load
letter” from Tenant’s engineer or from a reputable electrical consultant which
substantiates (to the reasonable satisfaction of Landlord) Tenant’s need for
any additional electrical capacity for its operations in the Expanded Demised
Premises, then Landlord, at Landlord’s sole cost and expense and subject to the
terms, covenants and conditions of Article 24 of this Agreement, shall as
expeditiously as reasonably possible perform all work (collectively,
“Landlord’s Electrical Restoration Work”) as is necessary to provide such
additional electrical capacity to the Expanded Demised Premises (at the
existing electrical panels or then existing electrical busways located on each
applicable floor, as determined by Landlord), provided that in no event shall
Landlord be responsible for providing any electrical capacity in excess of six
(6) watts per rentable square foot of demand load in the Original Demised
Premises and the FAOP Electrical Capacity in the First Additional Office
Premises.


          15. A.
Reference is hereby made to the following subordination, non-disturbance and
attornment agreements (each an “Existing SNDA” and collectively, the “Existing
SNDA’s”): (i) SNDA between Empire State Building L.L.C. and Tenant dated as of
July 14, 2008; (ii) SNDA between Empire State Land Associates L.L.C. and Tenant
dated as of July 14, 2008; and (iii) SNDA between CO and Tenant dated as of
July 14, 2008. Landlord agrees to obtain and deliver to Tenant an agreement
from the grantor under each of the Existing SNDA’s confirming that its Existing
SNDA will remain in full force and effect with respect to the Lease, as
modified by this Agreement, executed by the applicable grantor, and acknowledged.
Landlord shall deliver such confirmation from Empire State Building Associates
L.L.C. and Empire State Land Associates L.L.C. to Tenant simultaneously with
the execution and delivery of this Agreement by Landlord and Tenant, and
Landlord shall deliver such confirmation from CO to Tenant within thirty (30)
days of the date that this Agreement is executed and delivered by Landlord and
Tenant. In the event that Landlord fails to so deliver such confirmation from
CO to Tenant within such thirty (30) day period, then, at Tenant’s election, to
be made by notice to Landlord given within ten (10) days after the end of such
thirty (30) day period, this Agreement shall be deemed null and void and of no
further force and effect, and neither party shall have any further obligation
or liability to the other hereunder.


                    B.
As of the date hereof, the real property of which the Building forms a part is
encumbered by the first mortgage with CO referred to in the Existing SNDA with
CO described in paragraph A above, and a certain second mortgage made by Empire
State Land Associates L.L.C. and Empire State Building Associates L.L.C. in
favor of Signature Bank (“Signature”). Notwithstanding anything contained in
the Lease, as modified hereby, to the contrary, Landlord shall obtain from
Signature, for the benefit of Tenant, a subordination, non-disturbance and
attornment agreement, substantially in the form attached hereto and made a part
hereof as Exhibit C. Landlord shall deliver such subordination, non-disturbance
and attornment agreement to Tenant executed by Signature, Landlord, Empire
State Land Associates L.L.C. and Empire State Building Associates L.L.C., and
acknowledged, within thirty (30) days of the date that this Agreement is
executed and delivered by Landlord and Tenant. In the event that Landlord fails
to so deliver such subordination, non-disturbance and attornment agreement to
Tenant within such thirty (30) day period, then, at Tenant’s election, to be
made by notice to Landlord given within ten (10) days after the end of such
thirty (30) day period, this Agreement 


21





shall be deemed to be null and void and of no further force and effect,
and neither party shall have any further obligation or liability to the other
hereunder. Tenant shall promptly execute, have acknowledged and deliver any
such subordination, non-disturbance and attornment agreement.


          16.
Article 32 of the Original Lease shall be deemed to be, and
hereby is, modified so that (i) all references therein to the “demised
premises” shall mean the EP Renewal Premises (as such term is hereinafter
defined); (ii) the “Extended Term” shall mean the five (5) year period
commencing on February 1, 2030 and ending January 31, 2035; and (iii) the
reference to the “Expiration Date” in Article 32A(a) shall mean the “New
Expiration Date”. The term “EP Renewal Premises” when used in this Agreement
shall mean the portion of the Expanded Demised Premises as to which Tenant
exercises its renewal option pursuant to Article 32 of the Lease, as modified
hereby; it being understood and agreed, however, that Tenant may only exercise
such renewal option with respect to the entire Expanded Demised Premises or any
portion thereof consisting of two (2) or more contiguous floors (which floors
may include, without limitation, the portion of the 15th floor
included in the Expanded Demised Premises) located at the top or bottom of
Tenant’s stack of floors (so that there is no separation of any floors which
are included in the Expanded Demised Premises but not the EP Renewal Premises).
If Tenant exercises such renewal option with respect to less than all of the
Expanded Demised Premises, then “The Percentage” for purposes of calculating
operating expense and real estate tax escalation additional rents payable under
paragraphs B and C of Article 2 of the Original Lease, as modified hereby,
respectively, during the Extended Term shall be calculated in the same manner
as under the Original Lease with respect to the Original Demised Premises.


          17.
The Right of First Offer set forth in Article 43B of the Original
Lease shall be deemed to be, and hereby is, modified so that it shall apply to
the portion of the 15th floor of the Building which is not included
in the Expanded Demised Premises (and is approximately as shown on the space
diagram attached hereto and made a part hereof as Exhibit D), as well as the 13th,
18th and 19th floors of the Building. Additionally,
Article 43G of the Original Lease shall be deemed to be, and hereby is,
modified so that the reference therein to “eighty-five percent (85%)” shall be
changed to “eighty percent (80%)” with respect to the entire Expanded Demised
Premises.


          18.
A. Tenant represents and warrants that it neither consulted nor
negotiated with any broker or finder with regard to this Agreement other than
Newmark & Co. Real Estate, Inc., d/b/a Newmark Knight Frank and Cassidy
Turley New York, Inc. (collectively, the “Brokers”). Tenant shall indemnify,
defend and hold Landlord harmless from and against any claims for fees or
commissions from anyone other than the Brokers with whom Tenant has dealt in
connection with this Agreement.


                    B.
Landlord represents and warrants that it neither consulted nor negotiated with
any broker or finder with regard to this Agreement other than the Brokers.
Landlord shall indemnify, defend and hold Tenant harmless from and against any
claims for fees or commissions from anyone including the Brokers, with whom
Landlord has dealt in connection with this Agreement. Landlord agrees to pay
any commission or fee owing to the Brokers 


22





pursuant to separate agreements with them. Nothing in this Article
shall be construed to be a third party beneficiary contract.


          19. A.
Tenant hereby represents that, to the best of its knowledge: (i) Landlord is in
full compliance with the Lease, (ii) Landlord is not in default beyond any
applicable grace period of any of its respective obligations under the Lease,
and (iii) there exists no defense or counterclaim to the payment of any fixed
annual rent or additional rent Landlord has billed Tenant to date under the
Lease.


                    B.
Landlord hereby represents that, to the best of its knowledge: (i) Tenant is in
full compliance with the Lease, and (ii) Tenant is not in default beyond any
applicable grace period of any of its respective obligations under the Lease.


          20. This
Agreement shall not in any way bind Landlord or Tenant until such time as it
has been executed by both Landlord and Tenant, and thereafter has been duly
delivered to the respective parties.


          21. Except
as herein modified, all of the terms, covenants and conditions of the Lease are
and shall remain in full force and effect and are hereby ratified and
confirmed.


          22.
This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective legal representatives,
successors and assigns. This Agreement constitutes the entire agreement of the
parties concerning the matters and transactions covered by this Agreement.


          23.
This Agreement may be executed in one (1) or more counterparts,
each of which shall be deemed an original, but all of which when taken together
will constitute one and the same instrument. The signature page of any counterpart
of this Agreement may be detached therefrom without impairing the legal effect
of the signature(s) thereon provided such signature page is attached to any
other counterpart of this Agreement identical thereto except having an
additional signature page executed by the other party to this Agreement
attached thereto. Any counterpart of this Agreement may be delivered via
facsimile, email or other electronic transmission, and shall be legally binding
upon the parties hereto to the same extent as originals.


          24.
Tenant shall reasonably cooperate with Landlord in connection
with any Landlord’s Punch List Work, Landlord’s Asbestos Removal Work,
Landlord’s Submetering Work, Landlord’s Additional Electrical Capacity Work,
Landlord’s Excess Capacity Recapture Work, Landlord’s Electrical Restoration
Work and Landlord’s 15th Floor Corridor Work, including, without limitation, by
providing Landlord and its contractors with such access to the Expanded Demised
Premises as is reasonably necessary for the performance of such work. Landlord
shall use commercially reasonable efforts to effect such access and work in a
manner which minimizes any interference with, as the case may be, the
performance of Tenant’s FAOP Initial Installation Work or the conduct of Tenant’s
business at the Expanded Demised Premises; it being understood and agreed,
however, that any such work may be performed on Business Days during Business
Hours unless (a) such entry or work (1) results in a denial of any reasonable
means of access to the Expanded Demised Premises or use of the Expanded Demised


23





Premises for the performance of Tenant’s FAOP Initial Installation Work
or for the conduct of Tenant’s business in the normal course thereof or (2)
imminently threatens the health or safety of any authorized occupant of the
Expanded Demised Premises; or (b) Tenant shall request that Landlord perform
the work on an overtime or premium basis and Tenant shall agree to reimburse
Landlord for the cost of same (provided such work is capable of being performed
on such overtime or premium basis and it is possible to do so), in which event
Tenant shall pay to Landlord, within thirty (30) days after demand therefor, an
amount equal to the difference between overtime or premium pay rates and the
regular pay rates for performing such work.


          25.
It is acknowledged that the portion of the 15th floor
of the Building which is not included in the Expanded Demised Premises is
currently occupied by another tenant (the “15th Floor Existing
Tenant”), pursuant to a certain lease with Landlord, the term of which is
scheduled to expire on December 31, 2012 (the “15th Floor Existing
Lease”). Notwithstanding anything contained in Article 23E of the Original
Lease to the contrary, unless Tenant leases such portion of the 15th
floor of the Building which is not included in the Expanded Demised Premises as
ROFO Space pursuant to the provisions of Article 43B of the Lease, as modified
hereby, then Landlord shall, subject to the terms, covenants and conditions of
Article 24 of this Agreement, substantially complete such portion of Landlord’s
15th Floor Corridor Work which has not yet been completed, within
one hundred eighty (180) days after the date that the 15th Floor
Existing Tenant vacates the demised premises under the 15th Floor Existing Lease (and if
the 15th Floor Existing Tenant holds over in such space for a period
of more than thirty (30) days after the expiration or earlier termination of
the 15th Floor Existing Lease, Landlord hereby agrees to promptly
commence summary proceedings if reasonably necessary to cause the 15th
Floor Existing Tenant to vacate such space). However, in the event that Tenant
does lease such portion of the 15th floor of the Building which is
not included in the Expanded Demised Premises as ROFO Space pursuant to the
provisions of Article 43B of the Lease, as modified hereby, then Landlord shall
not be required to complete such portion of Landlord’s 15th Floor
Corridor Work which has not yet been completed, but Tenant shall be entitled to
a rent credit in the amount of $45,000.00, which rent credit shall be applied,
until fully depleted, against the first fixed annual rent payable under the
Lease, as modified hereby, with respect to such 15th floor ROFO
Space.


          26.
The following sentence shall be deemed to be, and hereby is,
added to the end of Article 41 of the Original Lease: “Landlord and Tenant each
(i) consent to the entry of judgment in any court upon any award rendered in
any arbitration held pursuant to this Article; and (ii) acknowledge that any
award rendered in any arbitration held pursuant to this Article, whether or not
such award has been entered for judgment, shall be final and binding upon
Landlord and Tenant.”


          27.
Effective as of the date this Agreement is executed and delivered
by Landlord and Tenant, Article 24D of the Original Lease shall be deemed to
be, and hereby is, modified so that the reference therein to “two (2) Executive
Passes” shall be changed to “four (4) Executive Passes”.


[THIS SPACE INTENTIONALLY LEFT BLANK;

SIGNATURE PAGE FOLLOWS THIS PAGE]


24






          IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the day and year first above written.


	
  

 	
  

 	
  

 
	
  

 	
 LANDLORD:

 
	
  

 	
 EMPIRE STATE
 BUILDING COMPANY L.L.C.

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
 /s/ Peter L.
 Malkin

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Peter L.
 Malkin, Member

 
	
  

 	
  

 	
  

 
	
  

 	
 TENANT:

 COTY INC.

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ James E.
 Shiah

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 James E.
 Shiah, SVP Finance and Global Controller

 


25






EXHIBIT A


FIRST ADDITIONAL OFFICE PREMISES






[Floor Plan]






[Floor Plan]






EXHIBIT B


BUILDING STANDARD

ENVIRONMENTAL DESIGN AND CONSTRUCTION GUIDELINES






BUILDING STANDARD ENVIRONMENTAL DESIGN

AND CONSTRUCTION GUIDELINES


A. Energy Efficiency:


          1.
Reduce lighting power density from ASHRAE/IESNA 90.1-2007
standards by at least 10% and up to 35%, as long as the measures required in
order to do so do not affect the design intent of the First Additional Office
Premises in any material respect. This may be achieved through efficient
lighting design, use of low wattage fixtures and reflective surfaces as well as
LED task lights and day-lighting optimization strategies.


          2.
Implement lighting controls, including daylight dimming controls,
for lighting within the perimeter zone (approximately fifteen (15) feet from
the perimeter walls), except for non windowed areas that have no penetration of
natural light. Install occupancy sensors for a target of 75% of the connected
lighting load of the useable space.


          3.
Optimize energy performance of HVAC systems through zoning
controls, VFD’s on pumps and motors, and VAV distribution systems, and specify
CFC-free refrigerants.


          4.
Implement Demand Controlled Ventilation through the use of CO2
sensors in the First Additional Office Premises and in the return air stream to
the Air Handling Unit serving the First Additional Office Premises and tie in
to controls.


          5.
Tie in radiators to VAV box controls and building management
system.


          6.
Install local instantaneous hot water heaters.


          7.
Target lighting and plug load of 2.0-2.5 Watts per usable square
foot of demand load.


          8.
Reduce plug loads by specifying equipment and appliances
(including, without limitation, computers, printers, refrigerators, copiers,
and A/V and IT equipment) that meet or exceed Energy Star requirements in
effect as of the date hereof. This provision shall only apply to new equipment
and appliances purchased by Tenant for use within the First Additional Office
Premises.


          9.
Perform a one-time commissioning of energy systems within the
First Additional Office Premises (including, without limitation, lighting, HVAC
and electrical) after substantial completion of Tenant’s FAOP Initial
Installation Work in order to ensure design optimizes performance and systems
are constructed and function per efficient design.






B. Water Efficiency:


          1.
Specify low flow fixtures, including, without limitation,
lavatories, water closets, urinals and pantry sinks.


C. Materials and Resources:


          1.
Divert construction waste from landfills through recycling and
donation programs.


          2.
Reuse materials whenever possible, including construction
materials.


          3.
Specify recycled content materials whenever reasonably possible,
which may include, without limitation, gypsum board, acoustical tiles, carpet
and carpet backing.


          4.
Specify regionally produced and extracted materials whenever
possible.


          5.
Specify rapidly renewable resources whenever reasonably possible,
including, without limitation, bamboo, wool, linoleum and cork.


          6.
Specify and use wood products certified by the Forest Stewardship
Council (FSC) whenever reasonably possible, provided that the cost of such wood
products is consistent with the market price of comparable non-certified
products.


D. Indoor Environmental Quality:


          1.
Monitor delivery of outside air to ensure indoor air quality
compliance with ASHRAE 62.1 and 55.


          2.
Implement Construction Indoor Air Quality Management Plans during
performance of Tenant’s FAOP Initial Installation Work and prior to occupancy
to minimize the presence and spread of air pollutants.


          3.
Specify and install low-emitting (low or no Volatile Organic
Compounds) adhesives, sealants, paints, coatings, flooring systems, composite
wood and agrifiber products, systems furniture and seating.


          4.
Offer occupants control of lighting.


          5.
Design and build to optimize daylight and views for occupants,
which may be achieved through interior rather than exterior offices, or
perimeter offices with glass fronts.


2






EXHIBIT C


SIGNATURE BANK SNDA






SUBORDINATION, NON-DISTURBANCE AND

ATTORNMENT AGREEMENT


AGREEMENT dated as of the day of ________ May, 2011 among SIGNATURE BANK, a New York
banking corporation with offices at 68 South Service Road, Melville, New York
11747 (“Mortgagee”), COTY, INC., a Delaware corporation with offices at 350
Fifth Avenue, New York, New York 10118 (“Tenant”), EMPIRE STATE LAND ASSOCIATES
L.L.C. (“Land Associates”), a New York limited liability company, and EMPIRE
STATE BUILDING ASSOCIATES L.L.C. (“Associates”, together with Land Associates,
collectively, “Mortgagor”), a New York limited liability company, each with an
address c/o Malkin Holdings LLP, 60 East 42nd Street, New York, New York 10165;
and EMPIRE STATE BUILDING COMPANY L.L.C. (“Landlord”), a New York Limited
Liability Company, with offices at 350 Fifth Avenue, New York, New York 10118.


          WHEREAS,
Land Associates is the fee title owner of certain real property located at 350
Fifth Avenue, New York, New York as more fully described on Schedule A attached
hereto and made a part hereof (the “Premises”), which Premises are subject to a
long-term ground lease in favor of Associates, and which Premises is subleased
to Landlord pursuant to a certain long term operating sublease.


          WHEREAS,
Tenant is the tenant under a certain lease described as follows:


          Lease dated
as of July 14, 2008, between Landlord and Tenant, as modified by that certain
Commencement Date Agreement, dated as of January 14, 2009, that certain First
Lease Modification Agreement, dated as of March 17, 2009, and that certain
Second Lease Modification Agreement, dated as of May  ________, 2011 for the lease of space located
at the Premises (which lease, as so modified, is hereinafter called the
“Lease”); and


          WHEREAS,
the Mortgagee is the holder of a second mortgage on the Premises given by
Mortgagor to the Mortgagee in the original aggregate principal amount of
$31,500,000.00 to be recorded in the Office of the City Register of New York
County (collectively, the “Mortgage”); and


          WHEREAS,
each of the parties wishes to protect their particular interests;


          NOW,
THEREFORE, in consideration of the mutual benefits and covenants contained in
each of the agreements the parties covenant and agree as follows:


          1. Subject
to the terms hereof, Tenant acknowledges and confirms that the Lease and the
rights of the Tenant thereunder are subordinate to the said Mortgage and agrees
that same will be subordinate to any amendment, modification, consolidation,
increase, renewal, substitution, replacement or extension thereof as though
said amendment, modification, consolidation, increase, renewal, substitution,
replacement or extension were executed prior in point of time to the execution
of the Lease. Said Mortgage, amendment, modification, consolidation, increase,
renewal, substitution, replacement or extension shall hereinafter be referred
to as the “Mortgage”.





          2.
The Mortgagee covenants that so long as the Lease is in full
force and effect, and no default by Tenant has occurred and is continuing
thereunder beyond the expiration of any applicable notice, grace and cure
periods provided under the Lease, the Tenant shall not be joined as a party
defendant in any foreclosure action or proceeding which may be instituted or
taken by the Mortgagee, nor shall the Tenant be evicted from the Premises, or
any of the Tenant’s rights under the Lease be affected in any way, by reason of
any default in the Mortgage by the Mortgagor or by the exercise of any rights
of the Mortgagee under the Loan Documents (as such term is hereinafter
defined), except as hereinafter provided (provided, however, that Tenant may be
named or joined as a party defendant in any suit, action or proceeding for the
appointment of a receiver to quiet title to the Premises or to prevent
impairment of Mortgagee’s security under the Mortgage and other documents
executed in connection with said Mortgage (collectively, the “Loan Documents”)
so long as same does not extinguish or interfere with the rights of Tenant
under the Lease).


          3.
If the Mortgagee shall succeed to the position of the Landlord
under the Lease, the Tenant shall attorn to the Mortgagee and recognize it as
the Landlord under the Lease and promptly execute and deliver an attornment
agreement upon request of the Mortgagee.


          4.
If the Tenant is not then in default under the Lease continuing
beyond the expiration of any applicable notice, grace and cure periods provided
under the Lease, the Mortgagee agrees that it will not disturb the possession
of the Tenant as a result of any default by Mortgagor under the Loan Documents
and/or upon any foreclosure of the Mortgage, and that it will accept the
attornment of the Tenant if the Mortgagee succeeds to the position of Landlord
under the Lease.


          5.
In the event that Mortgagee succeeds to the position of the
Landlord under the Lease, then the Lease shall continue in full force and effect
as a direct lease between Mortgagee, as landlord, and Tenant, as tenant, upon
all of the terms, covenants and conditions set forth in the Lease; provided,
however, that Tenant hereby agrees that Mortgagee shall in no event (i) be
liable for any previous act or omission by the Landlord under the Lease, but
the foregoing shall not be construed or interpreted as exculpating Mortgagee
from liability for any damages, fees, costs or expenses arising out of
Mortgagee’s failure to perform any obligations of any prior landlord, which
failure continues following the date fee title to the Premises is transferred
to Mortgagee; (ii) be subject to any offset which shall have accrued to the
Tenant against the Landlord, except for any offsets permitted by applicable law
or specifically provided for under the Lease; (iii) be bound by any material
amendment or modification of the Lease, including, but not limited to, any
reduction in the fixed rent or any lengthening of the term of the lease, unless
the Mortgagee shall have consented thereto in writing (which consent shall not
be unreasonably withheld), except for any such amendments or modifications made
pursuant to provisions of the Lease which contemplate the making of such
amendments or modifications; (iv) be bound by any payment of rent which Tenant
might have paid more than one (1) month in advance of its date due pursuant to
the provisions of the Lease to the Landlord or any prior lessor; or (v) be
liable for the return or application of any security deposited by or on behalf
of the Tenant except to the extent actually received by or credited to the
Mortgagee.


2






          6.
Notwithstanding any provision in the Lease to the contrary,
Tenant shall not surrender or terminate the Lease as a result of Landlord’s
default under said Lease, claim a partial or total eviction by reason of any
default of Landlord under the Lease except to the extent expressly provided in
the Lease and, in such instance, not unless and until Mortgagee shall have
received written notice from Tenant of such default and the Mortgagee is given
a reasonable period of time to remedy such default which period in no event
shall exceed thirty (30) days after the date Tenant gives Mortgagee such
notice. Tenant shall accept performance by Mortgagee, Mortgagee’s designee or a
receiver of any term, covenant or agreement of lessor under the Lease as full
satisfaction thereof, but under no circumstances shall Mortgagee be obligated
to perform any of the terms, covenants or agreements to be performed by lessor
under the Lease until such time, and then only subsequent to the time, if at
all, that Mortgagee shall acquire fee title to the Premises and, in such event,
Mortgagee shall have no obligation or liability with respect to any matter
referred to in clauses (i) through (v) of Paragraph 5 above.


          7. Upon
receipt by Tenant of any written notice (a “Rent Payment Notice”) from
Mortgagee to do so, all rent shall be paid by Tenant to Mortgagee until further
notice from Mortgagee. Landlord irrevocably directs Tenant to comply with any
Rent Payment Notice, notwithstanding any directions or instructions to the
contrary given by Landlord, and Landlord hereby (i) agrees that Tenant’s
compliance with a Rent Payment Notice shall not be deemed a violation of the
Lease, (ii) agrees that all such payments shall be fully credited against
Tenant’s obligations under the Lease, and (iii) releases Tenant from all
liability to Landlord in connection with Tenant’s compliance with the
provisions of this Paragraph 7. The receipt by the Mortgagee of rent shall not
render Mortgagee liable for compliance by Mortgagee with any obligation under
the Lease unless and until Mortgagee acquires fee title to the Premises and
succeeds to the position of lessor under the Lease.


          8.
All notices or other communications required or otherwise given
pursuant to this Agreement shall be in writing and shall be personally
delivered, delivered by overnight courier or mailed by registered or certified
mail, postage prepaid, with return receipt requested, addressed as follows:


	
  

 	
  

 	
  

 
	
  

 	
 If to the
 Mortgagee:

 
	
  

 	
  

 
	
  

 	
  

 	
 Signature
 Bank

 
	
  

 	
  

 	
 68 South
 Service Road 

 Melville, New York 11747 

 Attention:

 
	
  

 	
  

 	
  

 
	
  

 	
 If to the
 Mortgagor:

 
	
  

 	
  

 
	
  

 	
  

 	
 Empire State
 Land Associates L.L.C. 

 Empire State Building Associates L.L.C. 

 c/o Malkin Holdings LLP

 
	
  

 	
  

 	
 60 East 42nd Street

 
	
  

 	
  

 	
 New York,
 New York 10165

 



3









	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Attention:
 Senior Asset Supervisor 

 
	
  

 	
  

 	
  

 
	
  

 	
 If to the
 Tenant:

 
	
  

 	
  

 
	
  

 	
  

 	
 Coty, Inc.

 
	
  

 	
  

 	
 Two Park
 Avenue

 
	
  

 	
  

 	
 New York,
 New York 10016 

 Attention: Chief Financial Officer

 
	
  

 	
  

 	
  

 
	
  

 	
 With a copy
 to:

 
	
  

 	
  

 
	
  

 	
  

 	
 Coty, Inc.

 
	
  

 	
  

 	
 Two Park
 Avenue

 
	
  

 	
  

 	
 New York,
 New York 10016 

 Attention: General Counsel

 
	
  

 	
  

 	
  

 
	
  

 	
 If to
 Landlord:

 
	
  

 	
  

 
	
  

 	
  

 	
 Empire State
 Building Company L.L.C. 

 350 Fifth Avenue, Third Floor

 
	
  

 	
  

 	
 New York,
 New York 10118

 
	
  

 	
  

 	
 Attention:
 General Manager

 


          Any party
may change the person or address to whom or which notices are to be given
hereunder, by notice duly given hereunder; provided, however, that any such
notice shall be deemed to have been given hereunder only when actually received
by the party to which it is addressed. Any notice or other communication given
hereunder shall be deemed to have been given or delivered, if personally
delivered, upon delivery, if sent by overnight courier, on the first (1st)
business day after being sent, and if sent by mail, on the third (3rd) business
day after mailing. Each party shall be entitled to rely on all communications
which purport to be given on behalf of any other party hereto and purport to be
signed by an authorized signatory of such party.


4





          9. The
agreements herein contained shall bind and inure to the benefit of and be
enforceable by the parties hereto and their respective successors and assigns
and, without limiting the foregoing, the agreement of the Mortgagee shall be
binding upon any purchaser of the Premises at a sale foreclosing the Mortgage.


          IN WITNESS
WHEREOF, the parties hereto have caused the execution hereof as of the day and
year first above written.


	
  

 	
  

 	
  

 
	
  

 	
 SIGNATURE
 BANK

 
	
  

 	
  

 
	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name:

 
	
  

 	
 Title:

 
	
  

 	
  

 	
  

 
	
  

 	
 COTY, INC.

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name:

 
	
  

 	
 Title:

 
	
  

 	
  

 	
  

 
	
  

 	
 EMPIRE STATE
 LAND ASSOCIATES L.L.C.

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name:

 
	
  

 	
 Title:

 
	
  

 	
  

 	
  

 
	
  

 	
 EMPIRE STATE
 BUILDING ASSOCIATES L.L.C.

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name:

 
	
  

 	
 Title:

 
	
  

 	
  

 	
  

 
	
  

 	
 EMPIRE STATE
 BUILDING COMPANY L.L.C.

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name:

 
	
  

 	
 Title:

 






5









	
  

 
	
 STATE OF NEW
 YORK)

 
	
                               )
 ss.:

 
	
 COUNTY OF
 SUFFOLK)

 



          On the
_______ day of _____________ in the year 2011, before me, the undersigned,
personally appeared ____________________, personally known to me or proved to
me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that she executed
the same in her capacity, and that by her signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.


	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Notary
 Public

 	
  

 






	
  

 
	
 STATE OF          )

 
	
                       )
 ss.:

 
	
 COUNTY OF      )

 



          On the _______ day
of _____________ in the year 2011, before me, the undersigned,
personally appeared ____________________, proved to me on the basis
of satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.


	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Notary
 Public

 	
  

 






	
  

 
	
 STATE OF NEW
 YORK     )

 
	
                               )
 ss.:

 
	
 COUNTY OF                       )

 


          On the
______ day of ___________ in the year 2011, before me, the undersigned,
personally appeared _____________________________, proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.


	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Notary
 Public

 	
  

 













	
  

 
	
 STATE OF NEW
 YORK     )

 
	
                               )
 ss.:

 
	
 COUNTY
 OF                       )

 


          On
the _______ day of _____________ in the year 2011, before me, the
undersigned, personally appeared ____________________ , proved to me
on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity, and that by his signature on the instrument, the individual,
or the person upon behalf of which the individual acted, executed the
instrument.


	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Notary
 Public

 	
  

 






	
  

 
	
 STATE OF NEW
 YORK     )

 
	
                               )
 ss.:

 
	
 COUNTY
 OF                       )

 


          On
the _______ day of _____________ in the year 2011, before me, the
undersigned, personally appeared ____________________, proved to me
on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity, and that by his signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.


	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Notary
 Public

 	
  

 


7






SCHEDULE A


Description of Premises






EXHIBIT D


PORTION OF 15th FLOOR COVERED BY ROFO






[Floor Plan]






EXHIBIT E


ESCROW AGREEMENT FOR LANDLORD’S FAOP CONTRIBUTION






EMPIRE STATE BUILDING COMPANY L.L.C.

350 Fifth Avenue, Third Floor

New York, New York 10118


May ___ 2011


Coty Inc.

Two Park Avenue

New York, New York 10016


          Re:          Empire
State Building, New York, New York 


Ladies and
Gentlemen:


          Reference
is hereby made to the following documents:


          (i)
that certain lease (“Original Lease”) dated as of July 14, 2008
between Empire State Building Company L.L.C., as landlord (“Landlord”) and Coty
Inc., as tenant (“Tenant”), covering certain space (the “Original Demised
Premises”) consisting of the entire rentable area of the 14th floor,
and a portion of the 15th floor, of the building (“Building”) known
as the Empire State Building, 350 Fifth Avenue, New York, New York, which
Original Lease was modified by a certain Commencement Date Agreement dated as
of January 14, 2009, and by a certain First Lease Modification Agreement dated
as of March 17, 2009 (“First Lease Modification”) (which Original Lease, as so
modified, is hereinafter called the “Lease”); and


          (ii)
that certain proposed Second Lease Modification Agreement,
pursuant to which the entire rentable area of the 16th and 17th floors of the Building will
be added to the premises demised under the Lease (the “Proposed Modification”).


          Pursuant to
the First Modification, certain storage space on the fifteenth floor of the
Building (the “Storage Space”; together with the Original Demised Premises,
collectively, the “Existing Demised Premises”) was added to the premises
demised under the Original Lease.


          Capital
One, N.A. (“Capital One”), the holder of a certain first mortgage currently
encumbering the Building (the “Capital One Mortgage”), is not willing to assume
responsibility for the payment of any unpaid portion of Landlord’s FAOP
Contribution (as such term is defined in Article 8C(iii) of the Proposed
Modification) if Capital One succeeds to the interest of Landlord under the
Lease, as modified by the Proposed Modification, notwithstanding its agreement
to enter into a non-disturbance agreement with Tenant. Tenant is not willing to
execute and deliver the Proposed Modification unless and until Landlord provides
Tenant with adequate security for the payment of any portion of Landlord’s FAOP
Contribution remaining unpaid if, as and when Capital One succeeds to the
interest of Landlord under the Lease, as modified by the Proposed Modification.
As an inducement to Tenant to execute and deliver the 





Proposed Modification, Landlord is willing to provide such adequate
security by depositing the amount of Landlord’s FAOP Contribution (i.e.,
$6,980,688.00) into escrow, in accordance with the terms and conditions hereinafter
set forth.


          Therefore,
it is hereby agreed as follows:


          1.
Capitalized terms not defined herein shall have the meanings
ascribed to such terms in the Lease and the Proposed Modification.


          2.
Simultaneously with the execution and delivery of this letter
agreement by Landlord and Tenant, Landlord deposited the sum of $6,980,688.00
(the “FAOP Escrow Deposit”) with Landlord’s attorneys, David J. Bleckner, P.C.
(“Escrowee”), which shall hold such sum in escrow, in an interest bearing
attorney escrow account at Citibank, N.A. (or another bank selected by
Escrowee, notice of which shall be given to Landlord and Tenant), in accordance
with the terms and conditions of this letter agreement.


          3.
The FAOP Escrow Deposit shall be disbursed by Escrowee as
follows:


                    A.
If, following Capital One’s succeeding to Landlord’s interest under the Lease,
as modified by the Proposed Modification, Capital One shall refuse to pay any
unpaid portion of Landlord’s FAOP Contribution (or interest or legal fees due
in connection therewith) when due, then, within two (2) business days after
Escrowee’s receipt of Tenant’s written demand therefor (accompanied by the
documentation set forth in clauses (a), (b) and (c) of Article 8C(iii) of the
Proposed Modification), Escrowee shall advise Landlord of Tenant’s demand by
sending a copy thereof and the accompanying supporting documentation. If
Landlord shall fail to object in writing to Escrowee’s disbursement of the
amount so demanded within five (5) business days after the date Escrowee’s
notice is given, Escrowee shall pay Tenant the amount so demanded on account of
Landlord’s FAOP Contribution. If Landlord shall timely object to such
disbursement (which objection, if made, shall be based solely on the claim that
Tenant has failed to satisfy the conditions to the disbursement of such funds
pursuant to the provisions of Article 8C(iii) of the Proposed Modification, and
shall be accompanied by an explanation of the reason(s) therefor and details
sufficient to enable Tenant to cure such objection), then Escrowee shall advise
Tenant of Landlord’s objection by sending a copy thereof to Tenant, and
Escrowee shall continue to hold such funds until resolution of the dispute (or,
at its election, shall deposit such funds into court, as hereinafter provided
in Article 4A). Any such dispute shall be resolved by arbitration in accordance
with the provisions of Article 41 of the Original Lease, and if Tenant prevails
in such arbitration proceeding, then Escrowee shall be required to pay Tenant
(from the FAOP Escrow Deposit) the full amount awarded to Tenant in such
proceeding, including, without limitation, any attorneys’ fees and/or interest
awarded to Tenant in such proceeding in accordance with the provisions of said
Article 8C(iii).


                    B.
In the event that Landlord shall pay Tenant any portion of Landlord’s FAOP
Contribution in accordance with the terms of the Proposed Modification, then
Landlord shall notify Escrowee thereof. Within two (2) business days after
Escrowee’s receipt of Landlord’s notice of such payment, Escrowee shall notify
Tenant that Escrowee intends to refund to Landlord, from the FAOP Escrow
Deposit, an amount equal to the portion of 


2





Landlord’s FAOP Contribution so paid by Landlord. If Tenant shall fail
to object in writing to such refund by Escrowee, within five (5) business days
after the date Escrowee’s notice is given, then Escrowee shall refund such
portion of the FAOP Escrow Deposit to Landlord (and the amount of the FAOP
Escrow Deposit which is required to maintained hereunder shall be deemed
reduced by such amount). If Tenant shall timely object to such refund by
Escrowee (which objection, if made, shall be based solely on the claim that
Landlord has failed to actually pay such portion of Landlord’s FAOP
Contribution (or interest or legal fees due in connection therewith), and shall
be accompanied by a reasonably detailed explanation of the reason(s) therefor),
then Escrowee shall advise Landlord of Tenant’s objection by sending a copy
thereof to Landlord, and Escrowee shall continue to hold such funds until
resolution of the dispute (or, at its election, shall deposit such funds into
court, as hereinafter provided in Article 4A). Any such dispute shall be
resolved by arbitration in accordance with the provisions of Article 41 of the
Original Lease.


                    C.
In the event that Tenant shall fail by the fourth anniversary of
the FAOP Commencement Date to perform sufficient Tenant’s FAOP Initial
Installation Work for Landlord’s FAOP Contribution to be fully applied, then
Landlord shall notify Escrowee thereof. Within two (2) business days after
Escrowee’s receipt of such notice from Landlord, Escrowee shall notify Tenant
that Escrowee intends to refund to Landlord, from the FAOP Escrow Deposit, an
amount equal to the then remaining balance of the FAOP Escrow Deposit. If
Tenant shall fail to object in writing to such refund by Escrowee, within five
(5) business days after the date Escrowee’s notice is given, then Escrowee
shall refund such remaining balance of the FAOP Escrow Deposit to Landlord. If
Tenant shall timely object to such refund by Escrowee (which objection, if
made, shall be based solely on the claim that Tenant has, prior to the fourth
anniversary of the FAOP Commencement Date, performed sufficient Tenant’s FAOP
Initial Installation Work for Landlord’s FAOP Contribution to be fully applied,
or that Landlord has not paid interest or legal fees which are then due to
Tenant under the provisions of the Proposed Modification governing Landlord’s
FAOP Contribution, and which objection shall be accompanied by a reasonably
detailed explanation of the reason(s) therefor), then Escrowee shall advise
Landlord of Tenant’s objection by sending a copy thereof to Landlord, and
Escrowee shall continue to hold such funds until resolution of the dispute (or,
at its election, shall deposit such funds into court, as hereinafter provided
in Article 4A). Any such dispute shall be resolved by arbitration in accordance
with the provisions of Article 41 of the Original Lease.


                    D.
All interest earned on the FAOP Escrow Deposit shall be added
onto and become part of the FAOP Escrow Deposit and, to the extent it has not
been applied in accordance with the terms hereof, shall be released to Landlord
when Landlord’s obligations under the Lease, as modified by the Proposed
Modification, with respect to Landlord’s FAOP Contribution have been fully
satisfied.


          4. A. In
the event of any dispute regarding this letter agreement or the FAOP Escrow
Deposit, or uncertainty as to the duties of Escrowee hereunder, then except as
otherwise expressly provided for herein, Escrowee shall pay the FAOP Escrow
Deposit or disputed portion thereof, as the case may be, into court pursuant to
the relevant statute.


3





                    B.
The parties agree jointly to defend (by attorneys selected by
Escrowee), indemnify and hold harmless Escrowee against and from any claim,
judgment, loss, liability, cost or expense resulting from any dispute or
litigation arising out of or concerning Escrowee’s duties or services
hereunder. This indemnity shall include, without limitation, reasonable
attorneys’ fees and disbursements either paid to retain attorneys or representing
the fair value of legal services rendered by Escrowee itself.


                    C.
Escrowee shall not be liable for any error in judgment or for any
act done or step taken or omitted in good faith, or for any mistake of fact or
law, except for Escrowee’s own gross negligence or willful misconduct.
Notwithstanding anything contained in this letter agreement to the contrary,
Escrowee shall have no obligation or responsibility to determine the validity
of any objection by either Landlord or Tenant to the disbursement of all or any
part of the FAOP Escrow Deposit; it being understood and agreed that such
determination shall be made solely by the arbitrators in any arbitration
proceeding relating to such objection.


                    D.
The parties acknowledge that Escrowee is merely a stakeholder.
Upon payment of the FAOP Escrow Deposit pursuant to this letter agreement,
Escrowee shall be fully released from any and all liability and obligations
with respect to the FAOP Escrow Deposit.


                    E.
It is acknowledged and agreed that Escrowee is the attorney for
Landlord and that Escrowee shall be entitled to represent Landlord in any
lawsuit, except if same relates to the Escrow Deposit, unless the FAOP Escrow
Deposit has been deposited into court by Escrowee, as hereinabove provided (in
which case Escrowee shall be entitled to represent Landlord in such lawsuit).


                    I.
Any notice or communication to Escrowee shall be in writing and either (a)
delivered by hand or by overnight courier, with receipt acknowledged in either
case, to Escrowee at 350 Fifth Avenue, Suite 2816, New York, New York 10118, or
(b) given by telecopier to (212) 279-4495, in either case, Attn: David J.
Bleckner, Esq. Each notice to Escrowee shall be deemed given when received (or
refused). Any notice or communication to Landlord or Tenant shall be governed
by the notice provisions of the Original Lease.


          5. The
provisions of this letter agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed wholly in the State of New York, without
regard to principles of conflicts of law.


          6. This
letter agreement shall bind and inure to the benefit of the parties hereto,
their heirs, personal representatives, successors and permitted assigns.


          7. This
letter agreement may not be modified, amended, altered or discharged except by
an instrument in writing signed by the parties hereto.


          8. This
letter agreement may be executed in counterparts, each of which shall be an
original and all of which counterparts taken together shall constitute one and
the same agreement.


4





          9. This
letter agreement supersedes any and all understandings and agreements between
the parties with respect to the subject matter hereof.


          10. In the
event that any provision of this letter agreement shall be held to be invalid
or unenforceable in any respect, the validity, legality or enforceability of
the remaining provisions of this letter agreement shall be unaffected thereby.


          11. This
letter agreement may be executed in two or more counterparts and all
counterparts so executed shall for all purposes constitute one agreement
binding on all of the parties hereto, notwithstanding that all parties shall
not have executed the same counterparts. Facsimile and photocopy signatures on
this letter agreement shall have the same force and effect as originals.


          Please sign
and return a copy of this letter to the undersigned so as to confirm your
agreement with the foregoing.


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Very truly
 yours,

 
	
  

 	
  

 
	
  

 	
 EMPIRE STATE
 BUILDING COMPANY L.L.C.,

 
	
  

 	
 Landlord

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
   Name: Peter
 L. Malkin

 
	
  

 	
  

 	
   Title:
 Member

 
	
  

 	
  

 
	
 AGREED:

 	
  

 
	
  

 	
  

 
	
 COTY INC.,
 Tenant

 	
  

 
	
  

 	
  

 
	
 By:

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
   Name: James
 E. Shiah

 	
  

 
	
  

 	
   Title: SVP
 Finance and Global Controller

 	
  

 
	
  

 	
  

 
	
 DAVID J.
 BLECKNER, P.C., Escrowee

 	
  

 
	
  

 	
  

 	
  

 
	
 By:

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
   Name: David
 J. Bleckner, Esq. 

 	
  

 
	
  

 	
   Title:
 President

 	
  

 



5






NEW EXHBIT H FOR ORIGINAL LEASE


ESB CAPITAL IMPROVEMENT DESCRIPTON






ESB Capital Improvement Descriptions


Restroom Renovations - Phases I-V


Renovation of all building restrooms to replace the original finishes
with more modern ones. 5th and final phase of renovations (36 restrooms). 2011
includes completion of phase 5 (36 restrooms).


Restroom Refurbishment


Refurbishment of all renovated restrooms to include lavatory counters,
new efficient lighting and occupancy sensor controls. This project is scheduled
to be done in conjunction with corridor renovations. This line also excludes
Phase V restrooms, which were designed with full finishes.


On-Going A/C Replacement


The original base building standard was constant volume fan coil units
installed above the ceiling. Over the past 5 years 115 have been replaced.
There are 10 units scheduled for replacement in 2011. Units are scheduled based
on lease expiration, performance and unit condition.


Lobby Master Plan


Lobby Master Plan was done to improve the tenant experience in the
Lobby and replicate the original 1931 mural and lighting in the ceiling. Also
included were relocation of turnstiles, installation of a central visitor desk
and replacement of marble where it had been removed for modifications from the
original design.


Corridor Renovation & A/C 


New wall covering, marble restoration, carpet, ceilings, lighting,
ductwork and controls are incorporated in this project. Through 2010, 12 floors
have been completed. 7 corridors to be constructed in 2011.


Electrical Power & Switchboard Equipment


Enhancements to the current building substations and distribution
systems to allow for the most efficient distribution of power throughout the
facility


Elevator Modernization 


The elevator modernization includes all passenger cars banks A-G; and
all freight elevators. New hoists and electronic drives and destination
dispatching system will create a state of the art vertical transportation
system





Local Law 26 


As mandated by the City of New York, Local Law 26 requires all high
rise buildings to be fully sprinkled by 2019. The drain riser and rig installation
portion was completed in 2009. The balance of the floors to be sprinkled by
2018.


Switchboard Distribution Board Renovation 


Renovation of 6 switchgear distribution boards (33rd St., 34th St, 20th
Fl., 41st Fl., 84th Fl., and 84 1/2th)


Chiller Plant Retrofit Completed 


The chiller plant facility improvement measure includes retrofit of the
electric chillers with new compressors and high efficiency motors, controls and
bypass for minimum load operation. Heat exchangers are being retubed with high
efficiency tubes. All controls are to be upgraded to direct digital control


Radiator Barriers Completed 


Installation of insulation and a reflective energy bather behind
existing radiators on exterior walls. This will lower overall heating costs in
the building and make tenant spaces more comfortable.


Window Light Retrofit Completed 


This project will increase the thermal performance of the building’s
windows in order to reduce summer cooling loads and winter heating loads, and
has a significant sustainable component that calls for the recycling of the
existing window components on site. The increased performance results from the
windows being converted to triple glazed gas-filled units. 


Building Controls Automation Completed


This project includes (1) metering for all building electrical closets,
(2) conversion of 350 air handling units to direct digital control and (3)
installation of tenant damper control ventilation, which will monitor and
regulate indoor CO2 levels.


Tenant Energy Management


Web-based energy and emissions tracking system that will provide
tenants with useful utility cost information and will provide the building with
an automated tenant energy billing system. This project will result in
operational savings and will be completed in 2011.


LEED Gold Certification 


Program to obtain a “Gold” rating for Leadership in Energy and
Environmental Design.


2





THIRD LEASE MODIFICATION AGREEMENT


          AGREEMENT
(“Agreement”) made as of April 6th, 2012 between EMPIRE STATE
BUILDING COMPANY L.L.C., a New York limited liability company with an office at
350 Fifth Avenue, Suite 300, New York, New York 10118 (hereinafter called
“Landlord”), and COTY INC., a Delaware corporation with an office at 350 Fifth
Avenue, New York, New York 10118 (hereinafter called “Tenant”).


WITNESSETH:


          WHEREAS,
Landlord and Tenant are the landlord and tenant, respectively, under that
certain lease dated as of July 14, 2008, covering certain space (the “Original
Demised Premises”) consisting of the entire rentable area of the fourteenth (14th)
floor, and a portion of the fifteenth (15th) floor, of the building
(“Building”) known as the Empire State Building, 350 Fifth Avenue, New York,
New York (the “Original Lease”), which Original Lease was modified by a certain
Commencement Date Agreement dated as of January 14, 2009 (the “Commencement
Date Agreement”), by a certain First Lease Modification Agreement dated as of
March 17, 2009 (the “First Modification”), and by a certain Second Lease
Modification Agreement dated as of May 19, 2011 (the “Second Modification”)
(which Original Lease, as so modified, is hereinafter called the “Lease”); and


          WHEREAS,
pursuant to the First Modification, certain storage space, designated as
Storeroom 15A and Storeroom 15C (collectively, the “Storage Space”), each on
the fifteenth (15th) floor of the Building, was added to the demised
premises under the Original Lease; and


          WHEREAS,
pursuant to the Second Modification, certain space, consisting of the entire
rentable area of each of the sixteenth (16th) floor and the
seventeenth (17th) floor of the Building (collectively, the “First
Additional Office Premises”), was added to the demised premises under the
Original Lease (as modified by the Commencement Date Agreement and the First Modification),
so that as of the date hereof, the demised premises under the Lease consists of
the Original Demised Premises, the Storage Space and the First Additional
Office Premises (collectively, the “Second Existing Demised Premises”); and


          WHEREAS,
the term of the Lease with respect to the Second Existing Demised Premises is
scheduled to expire on January 31, 2030; and


          WHEREAS,
Landlord and Tenant wish to modify the Lease by adding to the demised premises
thereunder certain space, consisting of portions of the fifteenth (15th)
and (18th) floors of the Building, and the entire rentable area of
the nineteenth (19th) floor of the Building, all approximately as
shown on the space diagrams attached hereto and made a part hereof as Exhibit A
(collectively, the “Second Additional Office Premises”), all in accordance with
the terms and conditions hereinafter set forth.


          NOW,
THEREFORE, in consideration of the premises, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant hereby agree as follows:





          1.
Capitalized terms not defined in this Agreement shall have the meanings
ascribed to such terms under the Lease.


          2. The
Second Additional Office Premises shall be deemed to be, and hereby is, added
to the demised premises under the Lease, for a term of years commencing on the
SAOP Commencement Date (as such term is defined in Article 3 of this
Agreement), and ending on January 31, 2030, unless such term shall sooner
terminate as in the Lease, as modified hereby, provided. Except as otherwise
set forth herein, the Second Additional Office Premises shall be leased to
Tenant pursuant to all of the terms, covenants and conditions of the Lease, as
modified hereby. Landlord and Tenant agree that the rentable square foot area
of the Second Additional Office Premises shall deemed to be 118,792 rentable
square feet, consisting of 15,854 rentable square feet on the fifteenth (15th) floor (the “15th Floor
Portion”), 51,878 rentable square feet on the eighteenth (18th)
floor (the “18th Floor Portion”) and 51,060 rentable square feet on
the nineteenth (19th)
floor (the “19th Floor Portion”). The Second Existing Demised
Premises and the Second Additional Office Premises are hereinafter collectively
called the “Second Expanded Demised Premises”. Unless the context otherwise
requires, all references in the Original Lease to the “demised premises” shall
be deemed to include the Second Additional Office Premises, after the SAOP
Commencement Date.


          3. A.
Subject to the provisions of paragraph E of this Article, the term “SAOP
Commencement Date” when used in this Agreement shall mean the date on which the
last of the following shall have occurred: (i) Landlord delivers vacant
possession of the entire Second Additional Office Premises to Tenant, free of
any occupancies or tenancies, in broom clean condition and free of any
construction debris, materials and equipment and otherwise in safe condition
for the performance of Tenant’s SAOP Initial Installation Work (as such term is
defined in Article 8C of this Agreement); (ii) Landlord substantially completes
Landlord’s SAOP Work (as such term is defined in Article 8B of this Agreement);
and (iii) Landlord gives Tenant at least six (6) months’ prior written notice
of the date that Landlord reasonably anticipates that the SAOP Commencement
Date will occur; provided, however, that in no event shall the SAOP
Commencement Date occur prior to April 1, 2013. Notwithstanding the foregoing,
Tenant shall have the right to defer the SAOP Commencement Date for either one
(1) month, two (2) months, three (3) months or four (4) months, by giving
Landlord written notice thereof within thirty (30) days after Landlord gives
Tenant such six (6) months’ notice of the anticipated SAOP Commencement Date;
provided, however, that if Tenant initially exercises such right to defer the
SAOP Commencement Date for less than a total of four (4) months, then Tenant
shall continue to have such right to defer the SAOP Commencement Date, for one
or more additional one (1) month periods, up to (but in no event in excess of)
a total of four (4) months, by giving Landlord written notice thereof within
thirty (30) days after the date of the initial or any prior exercise by Tenant
of this right to defer the SAOP Commencement Date. If Tenant exercises such
right to defer the SAOP Commencement Date, then the fixed annual rental rates
for the Second Additional Office Premises shall be increased as set forth in Article
4C of this Agreement.


                    B.
Landlord’s SAOP Work shall be deemed to have been substantially completed
despite the fact that minor insubstantial details of construction and
mechanical adjustments (i.e., “punch list items”) remain to be completed,
provided the Second Additional 


2





Office Premises are accessible and reasonably usable by Tenant for the
purpose of effecting Tenant’s SAOP Initial Installation Work; and provided,
further, that the Building Systems through which any services which are
required to be provided by Landlord to the Second Additional Office Premises
under the Lease, as modified hereby, are also available in the Second
Additional Office Premises (or in locations outside of the Second Additional
Office Premises, if so provided under the Lease, as modified hereby) and
capable of providing the services that they are designed to provide, so that,
upon completion of such Tenant’s SAOP Initial Installation Work (or upon
completion of certain temporary or interim work by Tenant which is necessary to
provide electricity and/or chilled water service to the Second Additional
Office Premises during the construction period), such services can be provided
by Landlord as required hereunder. Landlord shall, subject to the terms, covenants
and conditions of Article 22 of this Agreement, nevertheless perform all work
(“Landlord’s SAOP Punch List Work”) required in order to complete such punch
list items within thirty (30) days of the SAOP Commencement Date.


                    C.
Landlord shall, in accordance with the foregoing, fix the SAOP
Commencement Date and notify Tenant of the date so fixed. When the SAOP
Commencement Date has so been determined, the parties hereto shall, within
thirty (30) days thereafter, at the request of either Landlord or Tenant,
execute a written agreement confirming such date as the SAOP Commencement Date.
Any failure of the parties to execute such written agreement shall not affect
the validity of the SAOP Commencement Date as fixed and determined by Landlord,
as aforesaid. Any dispute regarding the occurrence of the SAOP Commencement
Date shall be resolved by arbitration in accordance with the provisions of
Article 41 of the Original Lease, as modified hereby.


                    D.
Tenant by entering into occupancy of the Second Additional Office Premises
shall be conclusively deemed to have agreed that Landlord had substantially
completed Landlord’s SAOP Work, unless within twenty (20) days after the date
of such occupancy Tenant shall give written notice (hereinafter called the
“SAOP Punch List Notice”) to Landlord specifying the respects in which the same
were not in satisfactory condition. The giving of the SAOP Punch List Notice
shall have no effect whatsoever upon the SAOP Commencement Date.


                    E.
(i) Tenant acknowledges that it has been advised that a portion of the 15th
Floor Portion is currently leased to another tenant (the “15th Floor
Portion Existing Tenant”), pursuant to a certain lease with Landlord (the “15th
Floor Existing Lease”), the term of which is scheduled to expire on December
31, 2012. Tenant further acknowledges and agrees that Landlord shall have no
liability to Tenant whatsoever (and the provisions of paragraph F shall not be
applicable) in the event that the SAOP Commencement Date is delayed due to the
fact that the 15th Floor Portion Existing Tenant holds over in the
demised premises under the 15th Floor Existing Lease (the “15th
Floor EL Demised Premises”) after such scheduled expiration date of the 15th
Floor Portion Existing Lease. However, in the event of such a holdover,
Landlord shall use commercially reasonable efforts to obtain vacant possession
of the 15th Floor EL Demised Premises, including, without
limitation, the commencement and diligent prosecution of a summary holdover
dispossess proceeding against the 15th Floor Portion Existing
Tenant.


3





                              (ii)
Notwithstanding anything contained herein to the contrary, in the event that
the 15th Floor Portion Existing Tenant holds over in the 15th
Floor EL Demised Premises and such holdover continues past December 31, 2012
despite the exercise by Landlord of commercially reasonable efforts to obtain
vacant possession of such space, then the SAOP Commencement Date shall occur
when Landlord delivers possession of the 18th Floor Portion and the
19th Floor Portion to Tenant in accordance with the provisions of
paragraphs A and B of this Article (but in no event prior to April 1, 2013), in
which case Tenant’s obligations under the Lease, as modified hereby, with
respect to the 15th Floor Portion, including, without limitation,
the obligations to pay fixed annual rent, real estate tax and operating expense
escalation additional rent and electricity charges with respect to such space,
shall not commence unless and until Landlord delivers possession of the entire
15th Floor Portion in accordance with the provisions of said
paragraphs A and B of this Article (but in no event prior to April 1, 2013). In
this regard, it is acknowledged that the fixed annual rental rates set forth in
Article 4A of this Agreement shall be reduced by $681,722.00 per annum (based
on a rate of $43.00 per rentable square foot per annum), and “The Percentage”
for purposes of calculating real estate tax and operating expense escalation
additional rent shall be reduced by .5827 percent (.5827%), until Landlord
delivers possession of the 15th Floor Portion to Tenant in
accordance with said paragraphs A and B of this Article (subject, however, to
Tenant’s right to defer the SAOP Commencement Date and the corresponding
increase in such fixed annual rental rate, as set forth in paragraph A of this
Article and paragraph C of Article 4 below; and subject, also, to the 12-month
free rent period between the SAOP Commencement Date and the SAOP Rent
Commencement Date, to which Tenant shall also be entitled with respect to the
15th Floor Portion when it is so delivered to Tenant).


                    F.
(i) If, for any reason, Landlord fails to cause the SAOP Commencement Date (as
same may be affected by paragraph E of this Article) to occur on or before the
date (the “First SAOP Outside Date”) which is fourteen (14) months after the
date this Agreement is executed and delivered by Landlord and Tenant, then,
notwithstanding anything contained hereinabove to the contrary, the SAOP Rent
Commencement Date (as such term is defined in Article 4A of this Agreement)
shall be extended by one (1) day for each day after the First SAOP Outside Date
that Landlord fails to cause the SAOP Commencement Date to occur; provided,
however, that if Landlord fails to cause the SAOP Commencement Date to occur on
or before the Self Help SAOP Outside Date (as such term is defined in Article
3F(ii) of this Agreement), then, notwithstanding anything contained hereinabove
to the contrary, the SAOP Rent Commencement Date shall be extended by two (2)
days for each day after the Self Help SAOP Outside Date that Landlord fails
cause the SAOP Commencement Date to occur.


                              (ii)
If, for any reason, Landlord fails to cause the SAOP Commencement Date (as same
may be affected by paragraph E of this Article) to occur on or before the date
(the “Self Help SAOP Outside Date”) which is sixteen (16) months after the date
this Agreement is executed and delivered by Landlord and Tenant, then, Tenant
(without any obligation to do so) may give Landlord written notice (“Tenant’s
SAOP Self Help Notice”) that, unless Landlord causes the SAOP Commencement Date
to occur within ten (10) days after such notice shall have been given, Tenant
intends to perform any and all work necessary to complete Landlord’s SAOP Work
and/or otherwise cause the SAOP Commencement Date to occur. Any such work by
Tenant shall be performed in accordance with all applicable laws, rules and regulations
and all applicable provisions of the Lease, as modified hereby, other than any
such 


4





provisions requiring Landlord’s prior approval with respect to any
alterations by Tenant. Tenant agrees that Tenant’s SAOP Self Help Notice shall
specify (in bold face type and capital letters) that in the event Landlord does
not cause the SAOP Commencement Date to occur within such ten (10) day period,
then Tenant may exercise its “self-help” rights under this subparagraph (ii).
Tenant shall provide Landlord with reasonable written proof of the
out-of-pocket costs incurred by Tenant in connection with the work performed by
Tenant pursuant to this subparagraph (ii), and Landlord shall reimburse Tenant
for such costs within thirty (30) days after Landlord’s receipt of such proof.
In the event that Landlord fails to reimburse Tenant all or any part of such
costs within such thirty (30) day period, then Tenant shall be entitled to a
rent credit (i.e., Tenant may offset the amount of such reimbursement due
Tenant against rent) in the amount of the portion of such reimbursement that
Landlord has failed to pay Tenant (within such thirty (30) day period), with
interest at the Applicable Rate from the date such sums were to have been
reimbursed or paid to Tenant until the date recovered in full by Tenant. Such
rent credit shall be applied, until fully depleted, against the next fixed
annual rent payable under the Lease, as modified hereby. If Tenant shall
exercise its self-help rights under this subparagraph (ii), then (1) any
extension of the SAOP Rent Commencement Date to which Tenant is then entitled
under subparagraph (i) above shall only continue until the earlier to occur of
(x) the date that Tenant substantially completes Landlord’s SAOP Work or (y)
the date (as the same may be extended by any of the causes set forth in Article
22A(i) of the Original Lease) on which Tenant, using commercially reasonable
efforts to complete Landlord’s SAOP Work, should have completed such work, and
(2) Tenant shall no longer have the right to terminate this Agreement pursuant
to subparagraph (iii) below.


                              (iii)
If, for any reason, Landlord fails to cause the SAOP Commencement Date (as same
may be affected by paragraph E of this Article) to occur on or before the date
(the “Second SAOP Outside Date”) which is eighteen (18) months after the date
this Agreement is executed and delivered by Landlord and Tenant, and Tenant
shall not have elected to use self-help pursuant to subparagraph (ii) above,
then, notwithstanding anything contained hereinabove to the contrary, Tenant
may elect by written notice given to Landlord at any time after the Second SAOP
Outside Date to terminate this Agreement, and unless Landlord causes the SAOP
Commencement Date to occur within ten (10) days after Tenant gives such notice
to Landlord, then this Agreement shall be deemed terminated and the parties
shall have no further obligations or liabilities to each other hereunder,
except those expressly stated to survive the expiration or earlier termination
of this Agreement (but the Lease shall remain in full force and effect in
accordance with its terms).


                              (iv)
Notwithstanding the foregoing, the First SAOP Outside Date, the Self Help SAOP
Outside Date and the Second SAOP Outside Date shall each be extended, for no
more than thirty (30) days in the aggregate, by one day for each day that the
performance of Landlord’s SAOP Work is delayed as a result of any of the causes
set forth in Article 22A(i) of the Original Lease.


          4. A. (i)
Subject to the provisions of paragraph C of this Article, Tenant shall pay
Landlord fixed annual rent for the Second Additional Office Premises,
commencing on the SAOP Rent Commencement Date, and otherwise in accordance with
Article 2A of the Lease, except that such fixed annual rent shall be payable at
the following rates: 


5









	
  

 	
  

 
	
  

 	
 $5,108,056.00 per annum ($425,671.33 per month) from the SAOP Rent
 Commencement Date through the last day of the fifth SAOP Lease Year (as such
 term is defined in Article 4B of this Agreement);

 
	
  

 	
  

 
	
  

 	
 $5,583,224.00 per annum ($465,268.67 per month) from the first day of
 the sixth SAOP Lease Year through the last day of the tenth SAOP Lease Year;
 and

 
	
  

 	
  

 
	
  

 	
 $6,058,392.00 per annum ($504,866.00 per month) from the first day of
 the eleventh SAOP Lease Year through January 31, 2030.

 


Should the SAOP Rent Commencement Date occur on any day other than the
first day of a month, then the fixed annual rent for the unexpired portion of
such month shall be adjusted and prorated on a per
diem basis based on the actual number of days in said month.


                              (ii)
The term “SAOP Rent Commencement Date” when used in this Agreement shall mean
the date which is twelve (12) months after the SAOP Commencement Date, as such
date may be extended pursuant to Article 3F(i) of this Agreement.


                    B.
The term “SAOP Lease Year” when used in this Agreement shall mean
the twelve (12) months commencing on the SAOP Rent Commencement Date (or if the
SAOP Rent Commencement Date is not the first day of a month, the first day of
the month following the month in which occurs the SAOP Rent Commencement Date)
and each subsequent period of twelve (12) months. The first SAOP Lease Year
shall include the period, if any, from the SAOP Rent Commencement Date to the
end of the month in which the SAOP Rent Commencement Date occurs.


                    C.
In the event Tenant exercises its option to defer the SAOP
Commencement Date pursuant to Article 3A of this Agreement, then the fixed
annual rental rates set forth in subparagraph A(i) of this Article shall not be
applicable and Tenant shall pay Landlord fixed annual rent for the Second
Additional Office Premises, commencing on the SAOP Rent Commencement Date, at
the following rates:


                              (i)
in the event of a one (1) month deferment of the SAOP
Commencement Date:


	
  

 	
  

 
	
  

 	
 $5,137,754.00 per annum ($428,146.17 per month) from the SAOP Rent
 Commencement Date through the last day of the fifth SAOP Lease Year;

 
	
  

 	
  

 
	
  

 	
 $5,612,922.00 per annum ($467,743.50 per month) from the first day of
 the sixth SAOP Lease Year through the last day of the tenth SAOP Lease Year;
 and

 
	
  

 	
  

 
	
  

 	
 $6,088,090.00 per annum ($507,340.83 per month) from the first day of
 the eleventh SAOP Lease Year through January 31, 3030; and

 


                              (ii)
in the event of a two (2) month deferment of the SAOP Commencement Date:


6









	
  

 	
  

 
	
  

 	
 $5,203,089.60 per annum ($433,590.80 per month) from the SAOP
 Commencement Date through the last day of the fifth SAOP Lease Year;

 
	
  

 	
  

 
	
  

 	
 $5,678,257.60 per annum ($473,188.13 per month) from the first day of
 the sixth SAOP Lease Year through the last day of the tenth SAOP Lease Year;
 and

 
	
  

 	
  

 
	
  

 	
 $6,153,425.60 per annum ($512,785.47 per month) from the first day of
 the eleventh SAOP Lease Year through January 31, 2030; and

 
	
  

 	
  

 
	
                               (iii)
 in the event of a three (3) month deferment of the SAOP Commencement Date:

 
	
  

 	
  

 
	
  

 	
 $5,280,304.40 per annum ($440,025.37 per month) from the SAOP Rent
 Commencement Date through the last day of the fifth SAOP Lease Year;

 
	
  

 	
  

 
	
  

 	
 $5,755,472.40 per annum ($479,622.70 per month) from the first day of
 the sixth SAOP Lease Year through the last day of the tenth Lease Year; and

 
	
  

 	
  

 
	
  

 	
 6,230,640.40 per annum ($519,220.03 per month) from the first day of
 the eleventh SAOP Lease Year through January 31, 2030; and

 
	
  

 	
  

 
	
                               (iv)
 in the event of a four (4) month deferment of the SAOP Commencement Date:

 
	
  

 	
  

 
	
  

 	
 $5,363,458.80 per annum ($446,954.90 per month) from the SAOP Rent
 Commencement Date through the last day of the fifth SAOP Lease Year;

 
	
  

 	
  

 
	
  

 	
 $5,838,626.80 per annum ($486,552.23 per month) from the first day of
 the sixth SAOP Lease Year through the last day of the tenth SAOP Lease Year;
 and

 
	
  

 	
  

 
	
  

 	
 $6,313,794.80 per annum ($526,149.57 per month) from the first day of
 the eleventh SAOP Lease Year through January 31, 3030.

 


          5. Tenant
shall pay Landlord operating expense escalation additional rent for the Second
Additional Office Premises, in accordance with Article 2B of the Original
Lease, except that the term “Base Year” shall mean the calendar year 2013; the
term “The Percentage” shall mean 4.3664 percent (4.3664%); and the term
“comparative year” shall mean the calendar year 2014, and each twelve (12)
month period thereafter, in which occurs any part of the term of the Lease, as
modified hereby, with respect to the Second Additional Office Premises;
provided, however, that in the event that the SAOP Commencement Date shall not
occur by or before the First SAOP Outside Date (other than due to a deferral of
the SAOP Commencement Date pursuant to Article 3A of this Agreement), then the
“Base Year” shall mean the twelve (12) month period commencing on the SAOP
Commencement Date, and the “comparative year” shall mean the twelve (12) month
period immediately following such Base Year, and each twelve (12) month period
thereafter, in which occurs any part of the term of the Lease, as modified
hereby, 


7





with respect to the Second Additional Office Premises; provided,
further, that if the SAOP Commencement Date does not occur on the first day of
a month, then the “Base Year” shall mean as follows: (i) the twelve (12) month
period beginning on the first day of the month in which the SAOP Commencement
Date occurs, if the SAOP Commencement Date occurs on or before the fifteenth
day of such month, or (ii) the twelve (12) month period beginning on the first
day of the month following the month in which the SAOP Commencement Date
occurs, if the SAOP Commencement Date occurs after the fifteenth day of the
month in which such date occurs; and the “comparative year” shall mean the
twelve (12) month period immediately following such Base Year, and each twelve
(12) month period thereafter, in which occurs any part of the term of the
Lease, as modified hereby, with respect to the Second Additional Office
Premises (subject, however, to the provisions of Article 2G of the Original
Lease with respect to any partial comparative year in which the SAOP
Commencement Date or the scheduled expiration date or sooner termination of the
term of the Lease, as modified hereby, occurs). The rent credit set forth in
the last sentence of Article 2B(ii) of the Original Lease shall not be
applicable to the Second Additional Office Premises.


          6. Tenant
shall pay Landlord real estate tax escalation additional rent for the Second
Additional Office Premises, in accordance with Article 2C of the Original
Lease, except that the term “base tax year” shall mean the New York City real
estate tax year commencing July 1, 2013 and ending June 30, 2014; the term “The
Percentage” shall mean 4.3664 percent (4.3664%); and the term “comparative
year” shall mean the New York City real estate tax year commencing July 1, 2014
and ending June 30, 2015, and each subsequent period of twelve (12) months (or
such other period of twelve (12) months occurring during the term of the Lease,
as modified hereby, as hereafter may be duly adopted as the tax year for real
estate tax purposes by the City of New York). The rent credit set forth in the
last sentence of Article 2C(ii)(a) of the Original Lease shall not be
applicable to the Second Additional Office Premises. However, notwithstanding
the foregoing, if the SAOP Commencement Date shall not occur until after the
First SAOP Outside Date (other than due to a deferral of the SAOP Commencement
Date pursuant to Article 3A of this Agreement), then Tenant shall be entitled
to a rent credit in the amount of all real estate tax escalation additional
rent due under the Lease, as modified hereby, with respect to the Second
Additional Office Premises for the period from July 1, 2014 through the date
which is fifteen (15) months after the SAOP Commencement Date; and provided,
further that if the SAOP Commencement Date shall not occur by or before the
date which is nine (9) months after the First SAOP Outside Date (other than due
to a deferral of the SAOP Commencement Date pursuant to Article 3A of this
Agreement), then the “base tax year” for the Second Additional Office Premises
shall be the calendar year 2014, and the comparative year for such space shall
be the calendar year 2015 and each subsequent period of twelve (12) months in
which occurs any part of the term of the Lease, as modified hereby, with
respect to such space.


          7.
Landlord shall redistribute and furnish electricity to Tenant for
the Second Additional Office Premises, on a submetering basis, in accordance
with the provisions of Article 3 of the Original Lease, except as follows:


                    A.
Landlord shall perform such work (“Landlord’s SAOP Submetering Work”) as is
necessary to furnish redistributed electricity to the Second Additional Office
Premises on a submetering basis. Such work shall include, without limitation,
the installation of 


8





a submeter or submeters and the connection of such submeter or
submeters to the electrical panels for the Second Additional Office Premises
(it being acknowledged and agreed, however, that such work that is necessary to
connect the submeter(s) to such electrical panels may not be performed by
Landlord unless and until Tenant performs such work as is necessary to connect
Tenant’s local electrical distribution to such panels (“Tenant’s SAOP
Electrical Panel Work”)). Landlord shall perform Landlord’s SAOP Submetering
Work at its sole cost and expense, except that Tenant shall reimburse Landlord
for the cost of connecting more than a total of twenty-four (24) electrical
panels to such submeter or submeters, which sums shall be deemed additional
rent under the Lease, as modified hereby, and due within thirty (30) days after
demand. Landlord shall, subject to the terms, covenants and conditions of
Article 22 of this Agreement, complete Landlord’s SAOP Submetering Work within
thirty (30) days after Landlord receives notice from Tenant that Tenant has
completed Tenant’s SAOP Electrical Panel Work (and Tenant has in fact completed
such work). If Landlord’s SAOP Submetering Work has not been completed by the
SAOP Commencement Date (so that Landlord may not yet furnish electricity to the
Second Additional Office Premises on a submetering basis), then Tenant shall
pay, for the distribution of electric power and use of Landlord’s facilities to
provide electrical power to the Second Additional Office Premises, a charge equal
to the amount that results from (i) multiplying $1.25 by the number of rentable
square feet within the Second Additional Office Premises (i.e., 118,792), (ii)
dividing the result of (i) by 360, and then (iii) multiplying the result of
(ii) by the number of days, if any, until the appropriate submeter(s) are
installed and are properly functioning; provided, however, that if Landlord’s
SAOP Submetering Work has not been completed by the date that Tenant occupies
all or any part of the Second Additional Office Premises for the conduct of its
business, as a result of the failure of Tenant to complete Tenant’s SAOP
Electrical Panel Work or any other act or omission of Tenant, its agents,
employees or contractors that actually delays the completion of Landlord’s SAOP
Submetering Work, then the foregoing charge shall be changed as follows: the
reference to “$1.25” shall be changed to “$3.45”, effective as of such date
that Tenant occupies all or any part of the Second Additional Office Premises
for the conduct of its business.


                    B.
The electrical capacity which Landlord shall be obligated to provide to the
Second Additional Office Premises, for all purposes other than any Building
air-conditioning systems and equipment and any other Building Systems servicing
the Second Additional Office Premises, shall be the SAOP Electrical Capacity,
as hereinafter defined (and not the 6 watts per rentable square foot of demand
load described in Article 3C(ii) of the Original Lease). The term “SAOP
Electrical Capacity” when used herein, initially, shall mean the electrical
capacity which is currently available in the Second Additional Office Premises
for Tenant’s use (for all purposes other than such Building air-conditioning
equipment and Building Systems) as of the date of this Agreement; provided,
however, that if at any time after the date of this Agreement Tenant shall
provide Landlord with a “load letter” from Tenant’s engineer or from a
reputable electrical consultant which substantiates (to the reasonable satisfaction
of Landlord) Tenant’s need for any additional electrical capacity for its
operations in the Second Additional Office Premises, then Landlord, at
Landlord’s sole cost and expense, and subject to the terms, covenants and
conditions of Article 22 of this Agreement, shall perform all such work
(collectively, “Landlord’s SAOP Additional Electrical Capacity Work”) as is
necessary to provide such additional electrical capacity to the Second
Additional Office Premises (at the existing electrical panels or then existing
electrical busways located on each applicable floor, as determined by 


9





Landlord) and the “SAOP Electrical Capacity” shall be the total of such
increased electrical capacity which is then available to the Second Additional
Office Premises, provided that in no event shall the SAOP Electrical Capacity
ever exceed six (6) watts per usable square foot of demand load (based on a
usable square foot area of 88,862 square feet). Subject to the terms, covenants
and conditions of Article 22 of this Agreement, Tenant agrees that such
additional electrical capacity may be obtained from any excess capacity then
available in the Original Demised Premises or the First Additional Office
Premises.


          8. A.
Tenant expressly acknowledges that it has inspected the Second Additional
Office Premises and agrees to accept the Second Additional Office Premises
broom clean but otherwise in their “as is” condition, subject to Landlord’s
obligation to perform Landlord’s SAOP Work pursuant to Article 8B of this
Agreement. Tenant acknowledges that Landlord (i) has made no representation
respecting the physical condition of the Second Additional Office Premises and
(ii) shall have no obligation to do any work in and to the Second Additional
Office Premises in order to make them suitable and ready for occupancy and use
by Tenant, except as otherwise specifically provided in this Article.


                    B.
Landlord, at its expense, shall perform the following work (“Landlord’s SAOP
Work”) in order to prepare the Second Additional Office Premises for Tenant’s
use and occupancy and as a condition precedent to the SAOP Commencement Date
(except for the work set forth in the second sentence of subparagraph (ii)
below, which work, if necessary, will not occur until after the SAOP
Commencement Date):


                              (i)
Landlord shall perform demolition work in the Second Additional Office
Premises, including removal of ceiling, ductwork (except for duct work which
services other space in the Building), lighting and flooring, so as to create a
“slab to slab” condition in the Second Additional Office Premises.


                              (ii)
Landlord shall perform all work necessary to remove all asbestos from the
Second Additional Office Premises (other than shafts that run through the core
of the Building), and will obtain and provide to Tenant a duplicate original
counterpart of a Form ACP-5 and/or ACP-7 (as appropriate) for the Second
Additional Office Premises. If during the performance of Tenant’s SAOP Initial
Installation Work, Tenant discovers any asbestos containing materials within
the Second Additional Office Premises (a) that is required by law to be removed
in connection with such work or (b) that is located within the shafts that run
through the Second Additional Office Premises (excluding the core of the
Building, other than piping and duct work required for tie-ins or connections,
which shall be abated as herein provided), then Landlord shall promptly remove
such asbestos containing materials at Landlord’s sole cost and expense. All
work required to be performed by Landlord pursuant to the subparagraph (ii) is
hereinafter referred to, collectively, as “Landlord’s SAOP Asbestos Removal
Work.” If Landlord is required to perform Landlord’s SAOP Asbestos Removal Work
pursuant to this subparagraph (ii) at any time after the occurrence of the SAOP
Commencement Date but before the occurrence of the SAOP Rent Commencement Date,
then, notwithstanding anything contained hereinabove to the contrary, the SAOP
Rent Commencement Date shall be extended on a day-for-day basis for each day
Landlord is performing such work and such performance actually delays the
completion of Tenant’s SAOP Initial Installation Work; it being understood and
agreed, however, that if Tenant is entitled to such an extension of the SAOP
Rent 


10





Commencement Date, the same shall continue until Landlord has completed
Landlord’s SAOP Asbestos Removal Work (including, without limitation, obtaining
any sign-offs or approvals that are required for Tenant to legally use the
Second Additional Office Premises) and has vacated the Second Additional Office
Premises. If Landlord is required to perform Landlord’s SAOP Asbestos Removal
Work pursuant to this subparagraph (ii) after the occurrence of the SAOP Rent
Commencement Date, then, notwithstanding anything contained hereinabove to the
contrary, all fixed annual rent, operating expense escalation additional rent
and real estate tax escalation additional rent attributable to the portion of
the Second Additional Office Premises that Tenant is unable to use or occupy
during the performance of such work by Landlord shall be equitably and
proportionately abated until Landlord has completed Landlord’s SAOP Asbestos
Removal Work (including, without limitation, obtaining any sign-offs or
approvals that are required for Tenant to legally use the Second Additional
Office Premises) and has vacated the Second Additional Office Premises.


                              (iii)
Landlord shall flash patch the floors of the Second Additional
Office Premises where necessary and perform all work necessary to cause the
floors to be reasonably smooth and reasonably flat in accordance with industry
standards.


                              (iv)
Landlord shall perform all work necessary to provide Tenant with
adequate points of connection to the Building’s Class E fire alarm system, but
in no event fewer than (x) ten (10) such points in a location or locations on
the 18th Floor Portion, (y) ten (10) such points in a location or
locations in the 19th Floor Portion, and (z) four (4) such points in
a location or locations in the 15th Floor Portion, so that Tenant
may connect the fire alarm system for the Second Additional Office Premises to
such Building System. Any modifications, upgrades, additional panels, devices
or equipment shall be furnished and installed by Tenant.


                              (v)
Landlord shall effect all work necessary to provide a stand pipe connection to
the Building’s sprinkler system, in a location designated by Landlord in each
of the 18th Floor Portion and the 19th Floor Portion, so
that Tenant may provide sprinkler service in such portions of the Second
Additional Office Premises (it being acknowledged that there is already a
standpipe connection to the Building’s sprinkler system on the 15th
floor of the Building). Tenant, as part of Tenant’s SAOP Initial Installation
Work, shall effect all work necessary to distribute such sprinkler service
throughout the Second Additional Office Premises.


                              (vi)
Landlord shall install fireproofing and stopping at all locations required by
code and perform all other work in and to the Second Additional Office Premises
so that such space may be delivered by Landlord to Tenant in compliance with
all applicable laws, rules and regulations and free of any violations of
record.


                              (vii)
Landlord shall (a) install new, Building standard radiator convector covers and
grills so that the same are primed and ready for painting and (b) perform all
work necessary to cause the existing radiators in the Second Additional Office
Premises to be in good working order.


                              (viii)
Landlord shall effect all work necessary to cause the elevator call buttons,
lanterns, doors (including the hardware thereon) and service closets in the 18th
Floor Portion and the 19th Floor Portion or which service the Second
Additional Office Premises (whether or not in the Second Additional Office
Premises) to comply with the requirements of 


11





the ADA.


                              (ix)
Landlord shall perform all work necessary to provide to Tenant
the existing electric closets located on each of the 18th Floor Portion and the
19th Floor Portion stripped with main feeds in place.


                              (x)
Landlord shall install new, Building standard radiator valves
which are compatible with the Building’s direct digital control system.


Landlord shall perform Landlord’s SAOP Work in a good and workerlike
manner, and in a prompt and expeditious fashion after this Agreement has been
executed and delivered by Landlord and Tenant.


                    C.
(i) Tenant, at its expense (except as provided in subparagraph (iii) below),
shall perform all other work (“Tenant’s SAOP Initial Installation Work”) in and
to the Second Additional Office Premises as is necessary for Tenant to conduct
its business therein, and in order to make such space suitable and ready for
Tenant’s initial occupancy and use. Tenant shall perform Tenant’s SAOP Initial
Installation Work in a prompt and expeditious manner following the SAOP
Commencement Date, in accordance with the provisions of Article 8 of the
Original Lease, this Article and all other applicable provisions of the Lease,
as modified hereby, and in compliance with all applicable laws, rules and
regulations.


                              (ii)
Tenant shall submit to Landlord for Landlord’s approval, which approval shall
not be unreasonably withheld, conditioned or delayed with respect to nonstructural
interior alterations which do not adversely affect the proper functioning of
utility services, plumbing and electrical lines or other systems of the
Building (collectively, “Building Systems”), a full set of architectural and
engineering plans and specifications (including architectural plans and
specifications comprised of partition plans, reflected ceiling plans as well as
air conditioning, heating and all other mechanical drawings and electric plans)
in form suitable for filing with the appropriate agencies of the City of New
York to obtain such alteration or building permit to perform Tenant’s SAOP
Initial Installation Work. If Landlord withholds its approval of the plans and
specifications (in accordance with the foregoing), Landlord shall specify in
reasonable detail the basis for withholding such approval and Tenant shall make
appropriate modifications to the plans and specifications to correct or
eliminate the objections specified by Landlord in such disapproval and shall
resubmit the modified plans and specifications to Landlord within a reasonable
period of time after they are returned to Tenant unapproved. If Landlord fails
to respond to any such request for approval within ten (10) days after such
plans and specifications shall have been given to Landlord, Tenant may send
Landlord a second request for approval of such plans and specifications. If
Landlord fails to respond to such second request for approval within five (5)
Business Days after the same shall have been given to Landlord, then Landlord
shall be deemed to have approved such plans and specifications (provided such
second request specifies in bold face type and capital letters that Landlord
shall be deemed to have approved such plans and specifications if it fails to
respond to such second request within such five (5) Business Day period). The
terms and provisions set forth in this subparagraph (ii) governing the approval
and disapproval of plans and specifications shall apply equally to approving
and disapproving revised plans and specifications and all change orders. No
work may be performed without Landlord’s prior approval of the plans and 


12





specifications and all contractors and sub-contractors engaged to
perform Tenant’s SAOP Initial Installation Work. No such work shall be
commenced without the plans and specifications therefor having been approved by
Landlord and the appropriate permits and approvals therefor having been issued
by the City of New York Department of Buildings and any other governmental
agency having jurisdiction thereof. Approval by Landlord of any plans or
specifications shall not be deemed to constitute a warranty or representation
that such plans or specifications shall conform to applicable laws and
regulations or shall be approved by the Department of Buildings or any other
governmental agency. At Tenant’s request, Landlord shall execute all required
permit applications and other forms upon submission of Tenant’s plans and
specifications by Tenant but prior to Landlord’s review of same, but execution
of such forms by Landlord shall not constitute approval of the alterations in
question.


                              (iii)
Landlord shall provide Tenant an allowance of up to $8,079,874.00 to defray the
cost of construction of any Tenant’s SAOP Initial Installation Work which is
performed prior to the fourth anniversary of the SAOP Commencement Date. Such
sum (“Landlord’s SAOP Contribution”) shall be payable (as hereinafter provided)
against requisitions therefor accompanied by (a) the certification by Tenant’s
architect that the work described on such requisition has been completed
substantially in accordance with the plans and specifications theretofor
approved (or deemed approved) by Landlord, (b) a list specifying the work
performed for which such requisition is being submitted and (c) partial
conditional waivers of mechanics liens for all work for which such installment
of Landlord’s SAOP Contribution has been requisitioned, and partial
unconditional waivers of mechanics liens for all work for which payments were
made by Landlord with respect to previous requisitions, from each contractor,
sub-contractor, vendor and supplier of labor and materials for whom and to the
extent such installment of Landlord’s SAOP Contribution is being requisitioned;
it being agreed, however, that Tenant shall not be required to submit such lien
waivers for (x) any such contractor or subcontractor performing work the cost
of which shall be less than $10,000.00, or (y) for any such vendor or supplier
providing materials the cost of which (in the aggregate for the entire job, and
not for such installment) shall be less than $250,000.00. Payments on account
of Landlord’s SAOP Contribution shall not be payable more frequently than
monthly. Each such installment of Landlord’s SAOP Contribution shall be equal
to (1) the total amount of Landlord’s SAOP Contribution requisitioned by Tenant
as of the date of the most recent requisition (including the amount of the most
recent requisition), less (2) the total amount of Landlord’s SAOP Contribution
paid to Tenant as of the date the most recent requisition. To illustrate such
calculation, and assuming, for example, that the total of all requisitions
submitted by Tenant (including the most recent requisition) is $100,000, of
which $60,000 has been paid to Tenant, and $40,000 is the unpaid amount of the
most recent requisition, then the amount of such installment shall be $40,000,
calculated as follows: (1) $100,000, less (2) $60,000, equals $40,000.
Notwithstanding anything contained herein to the contrary, no portion of
Landlord’s SAOP Contribution shall be applied by Tenant against expenses for
furniture, office equipment or other personal property, and not more than
$1,211,981.00 may be applied by Tenant for architectural and engineering fees
or other soft costs relating to Tenant’s SAOP Initial Installation Work (which
payments of Landlord’s SAOP Contribution for such architectural and engineering
fees and other soft costs shall be made by Landlord upon Tenant’s submission of
invoices therefor (whether before or after the SAOP Commencement Date) which
have been approved for payment by an officer of Tenant, anything contained
herein to the contrary 


13





notwithstanding). Any dispute regarding Landlord’s SAOP Contribution
shall be resolved by expedited arbitration in accordance with the provisions of
Article 41 of the Original Lease. In the event that any such dispute shall be
resolved in Tenant’s favor, so that Landlord shall be obligated to pay Tenant
all or any part of Landlord’s SAOP Contribution, but Landlord fails to do so
within fifteen (15) days after such decision is rendered in such arbitration
proceeding, then Tenant shall be entitled to a rent credit (i.e., Tenant may
offset such amount due Tenant against rent) in the amount of the portion of
Landlord’s SAOP Contribution which Landlord has failed to pay Tenant (within
such fifteen (15) day period) in accordance with the decision in such
arbitration proceeding, with interest at the Applicable Rate from the date such
sums were to have been reimbursed or paid to Tenant from Landlord’s SAOP
Contribution until the date recovered in full by Tenant, and with all
reasonable legal fees incurred by Tenant in connection with such dispute
(provided Tenant furnishes Landlord with paid invoices or other reasonably
sufficient evidence of such fees). Such rent credit shall be applied, until
fully depleted, against the next fixed annual rent payable under the Lease, as
modified hereby. As an inducement to Tenant to execute and deliver this
Agreement, Landlord shall deposit in escrow with Landlord’s attorneys, David J.
Bleckner, P.C. (“Escrowee”), concurrently with the execution and delivery of
this Agreement by Landlord and Tenant, the sum of $8,079,874.00 to be held by
Escrowee as security for the payment of Landlord’s SAOP Contribution to Tenant,
in accordance with the terms, covenants and conditions of that certain letter
agreement of even date herewith among Landlord, Tenant and Escrowee, a copy of
which is attached hereto and made a part hereof as Exhibit D.


                              (iv)
The installation or connection to the Building systems of each
item of Tenant’s property and systems shall be performed at Tenant’s expense
(subject to subparagraph (iii) above) and, unless otherwise provided in the
Lease, as modified hereby, by Tenant using contractors approved by Landlord in
accordance with the applicable provisions of the Lease, as modified hereby.


                              (v)
Notwithstanding anything contained herein to the contrary, Tenant
shall maintain, at Tenant’s expense, in addition to any other insurance
required pursuant to the Lease, as modified hereby, with respect to
alterations, a Builders “All Risk” insurance policy (Broad Form) covering the
full replacement cost of Landlord’s SAOP Work and Tenant’s SAOP Initial
Installation Work and the materials and supplies delivered and stored in the
Second Additional Office Premises for the purpose of being incorporated in such
work.


                              (vi)
Notwithstanding anything contained herein to the contrary, Tenant
shall deliver to the Landlord final record drawings of Tenant’s SAOP Initial
Installation Work, including, as may be pertinent to the work performed, a
reflected ceiling plan, mechanical and electrical drawings, partition plan and
any other drawings which may be required to indicate accurately the layout and
systems of the Second Additional Office Premises. Tenant shall require its
architect to load and maintain such record plans on a CADD system and to deliver
diskettes or other medium suitable for Landlord’s needs and compatible, if
feasible, with Landlord’s computer applications, so as to enable Landlord to
use such CADD-saved plans.


                              (vii)
Landlord shall, at the request of Tenant, schedule the Building’s freight
elevator (or a passenger elevator converted for use as a freight elevator) for
Tenant’s 


14





move into the Second Additional Office Premises, after 6:00 p.m. and
before 7:00 a.m. on Business Days (and at any time on weekends). Such use shall
be subject to a prior reservation by another tenant and/or the need by Landlord
for the use of such elevator for other operating or construction purposes.
Notwithstanding anything contained in the Lease, as modified hereby, to the contrary,
in connection with Tenant’s SAOP Initial Installation Work and initial move-in
to the Second Additional Office Premises, it is agreed that Tenant shall not be
required to pay for the first eighty (80) hours of such freight elevator use on
an after-hours basis. Any other after-hours use of the freight elevator by
Tenant shall be subject to the applicable provisions of the Lease, including,
without limitation, Landlord’s standard charges therefor.


                              (viii)
Tenant agrees that Tenant’s SAOP Initial Installation Work shall include,
without limitation, all work necessary to tie all HVAC controls for the Second
Additional Office Premises into the Building’s direct digital control system.


                              (ix)
In connection with Tenant’s SAOP Initial Installation Work,
Landlord agrees that it shall sign Tenant’s Landmarks Louver application to
coincide with Tenant’s schedule in order to allow for an early Louver filing.
Upon submission of Tenant’s plans and specifications for Tenant’s SAOP Initial
Installation Work, as described in subparagraph (ii) above, Landlord shall
review the same for a Landmarks “no effect” filing, and shall sign the
application for such filing, within a period of five (5) days of Landlord’s receipt
of such plans and specifications, provided the final approved set of plans and
specifications which Tenant submits to the Building Department in connection
with its building permit application for Tenant’s SAOP Initial Installation
Work shall be consistent with any drawing included in such “no effect” filing.


                    D.
It is acknowledged and agreed that Tenant, at its expense (except as
hereinabove provided) and as part of Tenant’s SAOP Initial Installation Work,
shall provide, and shall effect all work (the “Tenant’s SAOP A/C Work”)
necessary to install, new chilled water cooled air-conditioning units for the
Second Additional Office Premises (the “SAOP A/C Units”), with a total cooling
capacity of 120 tons for each of the 18th Floor Portion and the 19th Floor Portion, and 35 tons for the 15th Floor Portion (for a total
cooling capacity in the Second Additional Office Premises of 275 tons), each of
which units shall be of equal or better quality to the current Building
standard air-conditioning unit, the York Floor Mounted Model Solution XTI.
Tenant’s SAOP A/C Work shall include, without limitation, (i) the connection of
the SAOP A/C Units to the Building Chilled Water and Warm Water Circulating
System, and (ii) all work necessary to install all associated duct work, fans,
diffusers and other equipment necessary to distribute air-conditioning service
throughout the Second Additional Office Premises from the SAOP A/C Units.


                    E.
It is acknowledged and agreed that Tenant, at its expense (except as
hereinabove provided) and as part of Tenant’s SAOP Initial Installation Work,
shall effect all work (the “SAOP Bathroom Renovation Work”) necessary to
renovate and refurbish all of the existing core bathrooms in each of the 18th
Floor Portion and the 19th Floor
Portion, so that the condition of, and quality of installation in, all such
bathrooms shall be at least equivalent to the condition of, and quality of
installation in, the core bathrooms located in 14th floor portion of
the Original Demised Premises as of the date of this Agreement.


15





                    F.
Reference is hereby made to the Environmental Design Guidelines set forth in
Exhibit B attached hereto and made a part hereof, which include certain
materials and/or items of work required in order to obtain LEED-CI designation
with respect to an office space construction project (it being understood and
agreed, however, that the intent of the Environmental Design Guidelines is to
optimize performance of the Second Additional Office Premises, not just to
obtain LEED-CI designation). Notwithstanding anything contained in the Lease,
as modified by this Agreement, to the contrary, Tenant shall (i) submit its
plans and specifications for Tenant’s SAOP Initial Installation Work to Landlord’s
project manager, Jones Lang LaSalle (“JLL”), concurrently with Tenant’s
submission of such plans and specifications to Landlord, and (ii) incorporate
into such plans and specifications as part of Tenant’s SAOP Initial
Installation Work such sustainability measures as are recommended by JLL to
Tenant (the “Recommended Sustainability Measures”); provided, however, that (a)
the Recommended Sustainability Measures shall be limited solely to the items
set forth in said Exhibit B, and JLL shall designate such Recommended
Sustainability Measures to Tenant in reasonable detail and within the same time
periods applicable to Landlord with respect to Tenant’s request for Landlord’s
approval of such plans and specifications (as such time periods are more particularly
set forth in Article 8C(ii) of this Agreement); (b) with respect to items A1,
A2 and A4 of the Environmental Design Guidelines, JLL demonstrates, to the
reasonable satisfaction of Tenant and Tenant’s consultants, that such
Recommended Sustainability Measures will result in the payback to, or the
recouping by, Tenant of the cost thereof over a period of not more than five
(5) years; (c) in no event shall the Recommended Sustainability Measures
materially delay the performance of Tenant’s SAOP Initial Installation Work (as
reasonably determined by Tenant); and (d) in no event shall Tenant be required
to perform any structural alterations, alterations to any of the Building
Systems or alterations outside of the Second Additional Office Premises, in connection
with the Recommended Sustainability Measures.


          9. A. (i)
Reference is hereby made to certain space on the 18th floor of the
Building, designated as Suites 18A-18C, which is approximately as shown on the
space diagram attached hereto and made a part hereof as Exhibit E (“18th
Floor Must Take Premises”). Tenant acknowledges that it has been advised that a
portion of the 18th Floor Must Take Premises is currently occupied
by a certain tenant (the “18th Floor Must Take Existing Tenant”) pursuant to a
certain lease with Landlord, the term of which is scheduled to expire on
December 31, 2018 (the 18th Floor Must Take Existing Lease”). It is
hereby agreed that the 18th Floor Must Take Premises shall be deemed
to be, and hereby is, added to the premises demised under the Lease, as
modified hereby, for a term commencing on the 18th Floor Must Take
Commencement Date (as such term is hereinafter defined) and ending on January
31, 2030, unless such term shall sooner terminate as in the Lease, as modified hereby,
provided. It is further acknowledged and agreed that, for all purposes under
the Lease, as modified hereby, the rentable square foot area of the 18th
Floor Must Take Premises shall be deemed to be 890 rentable square feet.


                              (ii)
The term “18th Floor Must Take Commencement Date” when used herein
shall mean the date on which the last of the following shall have occurred: (i)
Landlord delivers vacant possession of the 18th Floor Must Take
Premises to Tenant, free of any occupancies or tenancies, in broom clean
condition and free of any construction debris, materials and equipment and
otherwise in safe condition for the performance of Tenant’s 18th
Floor Must 


16





Take Initial Installation Work (as such term is hereinafter defined);
and (ii) Landlord substantially completes Landlord’s 18th Floor Must
Take Work (as such term is hereinafter defined); provided, however, that in no
event shall the 18th Floor Must Take Commencement Date occur prior
to April 1, 2013. Landlord shall use commercially reasonable efforts to cause
the 18th Floor Must Take Commencement Date to occur on the same date
as the SAOP Commencement Date, including, without limitation, by seeking to
relocate the 18th Floor Must Take Existing Tenant to other space in
the Building or by terminating the 18th Floor Must Take Existing
Lease prior to such date. However, if despite the exercise of such commercially
reasonable efforts by Landlord, Landlord is unable to cause the 18th
Floor Must Take Commencement Date to occur simultaneously with the SAOP
Commencement Date, then Landlord shall have no liability whatsoever to Tenant
in connection therewith, but Landlord shall give Tenant at least three (3)
months’ prior written notice of the date that Landlord reasonably anticipates
that the 18th Floor Must Take Commencement Date will actually occur.


                              (iii)
Landlord’s 18th Floor Must Take Work shall be deemed
to have been substantially completed despite the fact that minor insubstantial
details of construction and mechanical adjustments (i.e., “punch list items”)
remain to be completed, provided the 18th Floor Must Take Premises
are accessible and reasonably usable by Tenant for the purpose of effecting
Tenant’s 18th Floor Must Take Initial Installation Work; and
provided, further, that the Building Systems
through which any services which are required to be provided by Landlord to the
18th Floor Must Premises under the Lease, as modified hereby, are
also available in the 18th Floor Must Take Premises (or in locations
outside of the 18th Floor Must Take Premises, if so provided under
the Lease, as modified hereby) and capable of providing the services that they
are designed to provide, so that, upon completion of such Tenant’s 18th
Floor Must Take Initial Installation Work (or upon completion of certain
temporary or interim work by Tenant which is necessary to provide electricity
and/or chilled water service to the 18th Floor Must Take Premises
during the construction period), such services can be provided by Landlord as
required hereunder. Subject to the terms, covenants and conditions of Article
22 of this Agreement, Landlord shall nevertheless perform all work (“Landlord’s
18th Floor Must Take Punch List Work”) required in order to complete
such punch list items within thirty (30) days of the 18th Floor Must
Take Commencement Date.


                              (iv)
Landlord shall, in accordance with the foregoing, fix the 18th Floor
Must Take Commencement Date and notify Tenant of the date so fixed. When the 18th
Floor Must Take Commencement Date has so been determined, the parties hereto
shall, within thirty (30) days thereafter, at the request of either Landlord or
Tenant, execute a written agreement confirming such date as the 18th
Floor Must Take Commencement Date. Any failure of the parties to execute such
written agreement shall not affect the validity of the 18th Floor
Must Take Commencement Date as fixed and determined by Landlord, as aforesaid.
Any dispute regarding the occurrence of the 18th Floor Must Take
Commencement Date shall be resolved by arbitration in accordance with the
provisions of Article 41 of the Original Lease, as modified hereby.


                              (v)
Tenant by entering into occupancy of the 18th Floor Must Take Premises
shall be conclusively deemed to have agreed that Landlord had substantially
completed Landlord’s 18th Floor Must Take Work, unless within twenty
(20) days after the date of such occupancy Tenant shall give written notice
(hereinafter called the “18th Floor Must Take Punch


17





List Notice”) to Landlord specifying the respects in which the same
were not in satisfactory condition. The giving of the 18th Floor
Must Take Punch List Notice shall have no effect whatsoever upon the 18th
Floor Must Take Commencement Date.


                    B.
The 18th Floor Must Take Premises shall be leased to Tenant pursuant
to all of the same terms, covenants and conditions of the Lease, as modified
hereby, as are applicable to the Second Additional Office Premises, except as
follows:


                              (i)
Commencing on the date which is twelve (12) months after the 18th
Floor Must Take Commencement Date (the “18th Floor Must Take Rent
Commencement Date”), Tenant shall pay Landlord fixed annual rent for the 18th
Floor Must Take Premises at the following rates: $38,270.00 per annum
($3,189.17 per month) from the 18th Floor Must Take Rent
Commencement Date through the last day of the fifth SAOP Lease Year; $41,830.00
per annum ($3,485.83 per month) from the first day of the sixth SAOP Lease Year
through the last day of the tenth SAOP Lease Year; and $45,390.00 per annum
($3,782.80 per month) from the first day of the eleventh SAOP Lease Year
through January 31, 2030.


                              (ii)
Tenant shall pay Landlord operating expense escalation additional
rent for the 18th Floor Must Take Premises, in accordance with
Article 5 of this Agreement, except that “The Percentage” shall be .03271
percent (.03271%).


                              (iii)
Tenant shall pay Landlord real estate tax escalation additional
rent for the 18th Floor Must Take Premises, in accordance with
Article 6 of this Agreement, except that “The Percentage” shall be .03271
percent (.03271%).


                              (iv)
Landlord shall redistribute and furnish electricity to Tenant for
the 18th Floor Must Take Premises, on a submetering basis, in
accordance with the provisions of Article 7 of this Agreement, except that
Landlord shall have no obligation to perform any of the work described in
paragraph A of said Article 7 in the 18th Floor Must Take Premises
(it being understood and agreed that Landlord shall not be obligated to install
a separate submeter for such space, and that Tenant shall effect all work
necessary to connect Tenant’s local electrical distribution in such space to
the electrical panels on the 18th floor); and that the reference to
“88,862 usable square feet” in paragraph B of said Article 7 shall be deemed to
be “668 square feet” with respect to the 18th Floor Must Take
Premises. The SAOP Electrical Capacity shall be applicable to the 18th
Floor Must Take Premises.


                              (v)
Tenant expressly acknowledges that it has inspected the 18th
Floor Must Take Premises and agrees to accept the 18th Floor Must
Take Premises broom clean but otherwise in their “as is” condition as of the
date hereof, subject to reasonable wear and tear, damage by fire or other
casualty and Landlord’s obligation to perform Landlord’s 18th Floor
Must Take Work pursuant to the terms hereof. Tenant acknowledges that Landlord
(a) has made no representation respecting the physical condition of the 18th
Floor Must Take Premises and (b) shall have no obligation to do any work in and
to the 18th Floor Must Take Premises in order to make them suitable
and ready for occupancy and use by Tenant, except as otherwise specifically
provided in this Article. Landlord, at its expense, shall effect the following
work (“Landlord’s 18th Floor Must Take Work”) in and to the 18th
Floor Must Take Premises: the items of 


18





Landlord’s SAOP Work which are set forth in subparagraphs (i), (ii),
(iii) and (vi) of Article 8B of this Agreement, which items Landlord shall
perform in the 18th Floor Must Take Premises in accordance with the
applicable provisions of said Article 8B (it being agreed that the provisions
of said subparagraph (ii) regarding the performance of Landlord’s SAOP Asbestos
Removal Work during the period between the SAOP Commencement Date and the SAOP
Rent Commencement Date shall apply, also, with respect to any such asbestos
removal work which Landlord is required to perform in the 18th Floor
Must Take Premises during the period between the 18th Floor Must
Take Commencement Date and the 18th Floor Must Take Rent
Commencement Date). Tenant, at its expense (except as hereinafter provided)
shall effect all other work which is necessary to make the 18th
Floor Must Take Premises suitable and ready for Tenant’s occupancy and use
(“Tenant’s 18th Floor Must Take Initial Installation Work”). Tenant
shall perform Tenant’s 18th Floor Must Take Initial Installation
Work in accordance with the provisions of paragraphs C and F of Article 8 of
this Agreement, except that the amount of Landlord’s contribution with respect
to such work (for purposes of subparagraph C(iii) of said Article 8) shall be
$48,950.00, of which $7,343 may be applied to architectural and engineering
fees and other soft costs, and Tenant shall not be entitled to any additional
free hours of after-hours freight elevator usage for the 18th Floor
Must Take Premises. The provisions of paragraphs D and E of Article 8 shall not
be applicable to the 18th Floor Must Take Premises.


                              (vi)
The 18th Floor Must Take Premises shall be deemed part of the Second
Expanded Demised Premises for purposes of Articles 10B, 11, 12, 13, 15 and 22
of this Agreement.


                    C.
In the event that the 18th Floor Must Take Commencement Date shall not occur
simultaneously with the SAOP Commencement Date, then the amount of Landlord’s
SAOP Contribution shall be increased by $300,000.00 to a total of $8,379,874.00
(with the maximum amount to be applied to architectural and engineering fees to
be increased by $45,000.00 to a total of $1,256,981.00).


                    D.
In the event that the 18th Floor Must Take Commencement Date shall
occur simultaneously with the SAOP Commencement Date, but Tenant shall exercise
its right to defer the SAOP Commencement Date pursuant to Article 3A of this
Agreement, then the 18th Floor Must Take Commencement Date shall be
deemed deferred to the same date as the deferred SAOP Commencement Date, and
the fixed annual rental rates for the 18th Floor Must Take Premises,
as set forth in subparagraph B(i) above, shall be increased by the same amounts
(on a dollars per rentable square foot basis) as the fixed annual rental rates
for the Second Additional Office Premises are increased pursuant to Article 4C
of this Agreement (i.e., $0.25 per rentable square foot per annum for a
one-month deferral; $0.80 per rentable square foot per annum for a two-month
deferral; $1.45 per rentable square foot per annum for a three-month deferral;
and $2.15 per rentable square foot per annum for a four-month deferral).


          10. Article
4 of the Lease shall be deemed to be, and hereby is, modified as follows:


                    A.
With respect to the Second Additional Office Premises, the references in
Article 4J(ii) of the Original Lease to “Tenant’s Initial Installation Work”
shall mean “Tenant’s 


19





SAOP Initial Installation Work” (and with respect to the 18th
Floor Must Take Premises, shall mean “Tenant’s 18th Floor Must Take
Initial Installation Work”).


                    B.
The reference to the number “twelve (12)” in Article 4F(iii)(d) of the Lease
shall be changed to the number “eighteen (18)”. Additionally, in no event may
any assignment or subletting be made which results in the occupancy of any full
floor included in the Second Expanded Demised Premises by more than three (3)
occupants (including Tenant).


          11. Article
31 of the Lease shall be deemed to be, and hereby is, modified with respect to
the Second Additional Office Premises as follows:


                    A.
The third sentence of Article 31A(i) of the Original Lease shall be deemed to
be, and hereby is, modified so that Landlord shall furnish heat to the Second
Additional Office Premises so as to provide for reasonably comfortable
occupancy thereof, for normal office use, during all Business Hours on all
Business Days, during the cold season, at no charge to Tenant. Air conditioning
service shall be provided by the SAOP A/C Units to be installed by Tenant, and
Landlord shall provide Tenant with 275 tons per annum of chilled water from the
Building Chilled Water and Warm Water Circulating System in connection with the
operation of such Units, at no charge to Tenant during Business Hours. Such
chilled water service shall be provided to Tenant for the First Additional
Office Space and the Second Additional Office Space (it being acknowledged that
the Original Demised Premise is currently serviced by air-cooled
air-conditioning units) in accordance with the provisions of Article 24C of the
Original Lease, and for purposes of subparagraph (v) of said Article 24C of the
Original Lease, Tenant acknowledges that it has been advised by Landlord that
the Second Expanded Demised Premises and all of the Option Space/ROFO Space are
in the same zone and Landlord agrees that such space will remain in the same
zone during the term of the Lease (as modified hereby). Tenant acknowledges
that it has been advised as follows with respect to the Building Chilled Water
and Warm Water Circulating System: that it is currently operated on a
year-around basis; that the temperature of the chilled water generated by such
system is allowed to modulate to maintain suitable indoor temperatures (68 to
75 degrees F); that for the period from May 15th to September 15 (i.e., the
cooling season), the system will deliver chilled water to the FAOP A/C Units
and the SAOP A/C Units within a temperature range of 42 – 54 degrees F utilizing the mechanical cooling produced by the base Building
refrigeration plant; that during such cooling season, the chillers will only be
operated during Business Hours on Business Days; and that during the period
from September 16th to May 14th
(i.e., the heating season), the chillers will not be operated at all, but warm
water will be circulated on a 24/7 basis, by the base Building’s pumps. It is
further acknowledged and agreed that Landlord may from time to time modify or
amend the manner in which the Building Chilled Water and Warm Water Circulating
System operates, provided same does not materially and adversely affect the
operation of the FAOP A/C Units or the SAOP A/C Units (including, without limitation,
their ability comply with the temperature specifications set forth in (and
pursuant to the provisions of) Article 10B of the Second Modification with
respect to the FAOP A/C Units, and paragraph B of this Article with respect to
the SAOP A/C Units), or result in any additional material expense to Tenant.


                    B.
Article 31A(ii) of the Original Lease shall be deemed to be, and hereby is,
modified with respect to the Second Additional Office Premises, so that if (i)
the SAOP A/C 


20





Units to be installed by Tenant shall provide a minimum of 275 tons of
cooling capacity to the Second Additional Office Premises (with a minimum of
120 tons to the 18th Floor Portion, 120 tons to the 19th Floor
Portion and 35 tons to the 15th
Floor Portion), (ii) occupancy levels in the Second Additional Office Premises
will not exceed one (1) person per one hundred (100) square feet of rentable
area (and such occupants are evenly distributed throughout the Second
Additional Office Premises), (iii) the electrical load in the Second Additional
Office Premises shall not exceed six (6) watts per usable square foot on a
demand load basis and (iv) Tenant shall at all times comply with applicable and
relevant Building regulations affecting the operation of the SAOP A/C Units,
then the SAOP A/C Units and the Building heating system shall be capable of
maintaining the following conditions: (a) a minimum average indoor dry bulb
temperature of not less than 68 degrees Fahrenheit, whenever the outdoor
dry-bulb temperature, during Business Hours, is lower than 65 degrees and not
lower than 0 degrees Fahrenheit; and (b) a minimum average indoor dry-bulb
temperature of no higher than 75 degrees Fahrenheit, whenever the outdoor
dry-bulb temperature, during Business Hours, is higher than 65 degrees and not
higher than 95 degrees Fahrenheit, and the outdoor wet-bulb temperature does
not exceed 75 degrees Fahrenheit.


                    C.
Article 31C of the Original Lease shall be deemed to be, and hereby is,
modified with respect to the Second Additional Office Premises, so that any
Supplemental A/C Unit(s) to be installed by or on behalf of Tenant in and for
the Second Additional Office Premises shall be of the Direct Expansion (DX)
water-cooled type (and not an air-cooled unit), and shall be equipped with a
free cooling water-side economizer coil; and with respect to any such
Supplemental A/C Unit(s) with an outside-air connection, Tenant shall be
responsible for providing suitable electric duct heaters in order to prevent
coil freezing. Additionally, as a condition to the installation of any such
Supplemental A/C Unit(s) in and for the Second Additional Office Premises,
Tenant shall provide Landlord with a letter from a reputable HVAC consultant or
Tenant’s engineer confirming that the installation of such equipment is
required or desired based on Tenant’s plans and specifications for Tenant’s
SAOP Initial Installation Work and Tenant’s proposed business operations in the
Second Additional Office Premises. In the event that Tenant provides such
confirmation letter and thereafter installs any such Supplemental A/C Unit(s)
in and for the Second Additional Office Premises, then Landlord shall provide
Tenant with up to 30 tons per annum of chilled water from the Building Chilled
Water and Warm Water Circulating System for the operation of such unit(s)
(which 30 tons of chilled water shall be in addition to the 275 tons per annum
of chilled water to be supplied by Landlord for the SAOP A/C Units pursuant to
paragraph A above). It is acknowledged and agreed by Tenant that the use of
such chilled water for any Supplemental A/C Unit(s) in the Second Additional
Office Premises shall be subject to the following limitations: (i) during
Business Hours on Business Days, it shall be used as chilled water (which runs
through a coil in such Supplemental A/C Unit(s)) in order to provide cooling in
the Second Additional Office Premises; and (ii) outside of Business Hours on
Business Days, the chilled water shall be used as if it were condenser water (which
utilizes a compressor in such Supplemental A/C Unit(s)) in order to provide
cooling to the Second Additional Office Premises. Landlord, at Tenant’s
expense, shall (a) modify one (1) of the existing taps on the 18th
Floor Portion and/or one of the existing taps on the 19th Floor
Portion and/or one of the existing taps in the 15th Floor Portion in
order to provide up to a total of thirty (30) tons of additional chilled water
service for any such Supplemental A/C Unit(s) (it being acknowledged that there
are currently two (2) taps on each such floor, each with the 


21





capacity to provide sixty (60) tons of chilled water service), and (b)
a BTU submeter(s) to measure Tenant’s actual consumption of such chilled water.
Tenant shall reimburse Landlord for any and all actual out-of-pocket costs
incurred by Landlord in connection with the modification of such taps and the
purchase and installation of such BTU submeter(s), which costs shall be deemed
additional rent under the Lease, as modified hereby, and due within thirty (30)
days after demand, accompanied by documentation reasonably supporting such
costs. Tenant shall pay Landlord a charge in the amount of $2,000 per ton per
annum (“Landlord’s Annual Supplemental Chilled Water Charge”) for chilled water
used in connection with any Supplemental A/C Unit(s) in the Second Additional
Office Premises, as measured by such BTU submeter(s), which Landlord’s Annual
Supplemental Chilled Water Charge shall be subject to adjustment as hereinafter
provided, and shall be deemed additional rent under the Lease, as modified
hereby, and due within thirty (30) days after demand. Except as otherwise
provided above, there shall be no tap-in fees or charges associated with
accessing the Building’s Chilled Water and Warm Water Circulating System.
Landlord’s Annual Supplemental Chilled Water Charge shall be adjusted effective
as of the first month of each SAOP Lease Year hereunder (but never decreased
below $2,000) by multiplying Landlord’s Annual Supplemental Chilled Water
Charge by the percentage difference between the Price Index (as such term is
hereinafter defined) for the month prior to such first month and the Base Price
Index (as such term is hereinafter defined), and by adding the result to the
Landlord’s Annual Supplemental Chilled Water Charge. The term “Price Index”
when used herein shall mean the “Consumer Price Index” published by the Bureau
of Labor Statistics of the U.S. Department of Labor, All Items, New York, NY –
Northeastern, N.J., for urban wage earners and clerical workers, or a successor
or substitute index approximately adjusted. The term “Base Price Index” shall
mean the Price Index for December 2013. Anything contained herein to the
contrary notwithstanding, in the event that the Price Index ceases to use 1982-84=100
as the basis of calculation, or if a substantial change is made in the terms or
number of items contained in the Price Index, then the Price Index shall be
adjusted to the figure that would have been arrived at had the manner of
computing the Price Index in effect at the date of this Agreement not been
altered. In the event such Price Index (or a successor or substitute index) is
not available, a reliable governmental or other non-partisan publication
evaluating the information theretofore used in determining the Price Index
shall be used.


          12.
The following provisions of the Original Lease shall not be
applicable to the Second Additional Office Premises: paragraphs A, B, C, D, E,
F and H of Article 1; the fixed annual rental rates set forth in Article 2A;
paragraphs A, B, C, E and F of Article 23; Article 40; Article 43A; and
Exhibits A, I and J. Article 9B of the Second Modification shall be deemed to
be, and hereby is, deleted from the Lease.


          13.
Article 3 of the Lease shall be deemed to be, and hereby is,
modified, so that Landlord may, from time to time, following the expiration of
the first SAOP Lease Year (but not more frequently than once in any SAOP Lease
Year), cause Landlord’s electrical consultant to determine Tenant’s electrical
requirements for the Second Expanded Demised Premises over the twelve (12)
months immediately preceding each such determination. If Landlord’s electrical
consultant shall determine that Tenant’s electrical requirements are less than
the electrical capacity which Landlord is responsible hereunder to provide to
the Second Expanded Demised Premises (i.e., six (6) watts per rentable square
foot of demand load in the Original Demised 


22





Premises and the FAOP Electrical Capacity in the First Additional Office
Premises and the SAOP Electrical Capacity in the Second Additional Office
Premises), then Landlord may, in its sole discretion, at any time following the
sixtieth (60th) day after giving Tenant notice (hereinafter referred to as the
“Electric Recapture Notice”) of Landlord’s intent to do so, perform all work
(collectively, “Landlord’s Excess Capacity Recapture Work”) required in order
to recapture up to eighty percent (80%) of any such excess electrical capacity
then so determined to exist (provided such recapture of electrical capacity has
no adverse impact (other than to a de minimis extent) on the operation of
Tenant’s business in the Second Expanded Demised Premises), unless Tenant shall
have objected to such recapture in the manner hereinafter provided within such
sixty (60) day period. The Electric Recapture Notice shall be (a) given not
later than sixty (60) days following the determination of such excess capacity
and (b) accompanied by an explanation in reasonable detail of how the
determination of such excess capacity was made (including, without limitation,
calculations thereof prepared by a licensed electrical engineer). Any objection
to such recapture of excess electrical capacity shall be in writing specifying
in reasonable detail the reasons for such objection, including, without
limitation, calculations of Tenant’s electrical requirements prepared by a
licensed electrical engineer. Any such dispute shall be resolved pursuant to
the dispute resolution provisions of Article 3B(iv) of the Original Lease. If
it then shall be determined that excess capacity exists, then upon not less
than thirty (30) days’ notice to Tenant and subject to the terms, covenants and
conditions of Article 22 of this Agreement, Landlord may perform Landlord’s
Excess Capacity Recapture Work in order to recapture up to eighty percent (80%)
of such excess capacity. Tenant acknowledges that the purpose of this Article
is to foster conservation of electric consumption in the Building.
Notwithstanding the foregoing, if Landlord recaptures any such excess capacity
and Tenant thereafter provides Landlord with a “load letter” from Tenant’s
engineer or from a reputable electrical consultant which substantiates (to the
reasonable satisfaction of Landlord) Tenant’s need for any additional
electrical capacity for its operations in the Second Expanded Demised Premises,
then Landlord, at Landlord’s sole cost and expense and subject to the terms,
covenants and conditions of Article 22 of this Agreement, shall as
expeditiously as reasonably possible perform all work (collectively,
“Landlord’s Electrical Restoration Work”) as is necessary to provide such
additional electrical capacity to the Second Expanded Demised Premises (at the
existing electrical panels or then existing electrical busways located on each
applicable floor, as determined by Landlord), provided that in no event shall
Landlord be responsible for providing any electrical capacity in excess of six
(6) watts per rentable square foot of demand load in the Original Demised Premises,
the FAOP Electrical Capacity in the First Additional Office Premises and the
SAOP Electrical Capacity in the Second Additional Office Premises.


          14. A.
Reference is hereby made to the following subordination, non-disturbance and
attornment agreements (each an “Existing SNDA” and collectively, the “Existing
SNDA’s”): (i) SNDA between Empire State Building L.L.C. and Tenant dated as of
July 14, 2008; and (ii) SNDA between Empire State Land Associates L.L.C. and
Tenant dated as of July 14, 2008. Landlord agrees to obtain and deliver to
Tenant an agreement from the grantor under each of the Existing SNDA’s
confirming that its Existing SNDA will remain in full force and effect with
respect to the Lease, as modified by this Agreement, executed by the applicable
grantor, and acknowledged. Landlord shall deliver such confirmation from Empire
State Building Associates 


23





L.L.C. and Empire State Land Associates L.L.C. to Tenant simultaneously
with the execution and delivery of this Agreement by Landlord and Tenant.


                    B.
As of the date hereof, the real property of which the Building forms a part is
encumbered by a certain mortgage made by Empire State Land Associates L.L.C.
and Empire State Building Associates L.L.C. in favor of HSBC Bank USA, National
Association (“HSBC”), as agent. Notwithstanding anything contained in the
Lease, as modified hereby, to the contrary, Landlord shall obtain from HSBC,
for the benefit of Tenant, a subordination, non-disturbance and attornment
agreement, substantially in the form attached hereto and made a part hereof as
Exhibit C. Landlord shall deliver such subordination, non-disturbance and
attornment agreement to Tenant executed by HSBC, Landlord, Empire State Land
Associates L.L.C. and Empire State Building Associates L.L.C., and
acknowledged, within forty-five (45) days of the date that this Agreement is
executed and delivered by Landlord and Tenant. In the event that Landlord fails
to so deliver such subordination, non-disturbance and attornment agreement to
Tenant within such forty-five (45) day period, then, at Tenant’s election, to
be made by notice to Landlord given within ten (10) days after the end of such
forty-five (45) day period, this Agreement shall be deemed to be null and void
and of no further force and effect, and neither party shall have any further
obligation or liability to the other hereunder. Tenant shall promptly execute,
have acknowledged and deliver any such subordination, non-disturbance and
attornment agreement.


          15.
The renewal option set forth in Article 32 of the Lease shall
continue to be applicable with respect to the Lease, as modified by this
Agreement, except that the term “EP Renewal Premises” shall mean the portion of
the Second Expanded Demised Premises as to which Tenant exercises its renewal
option pursuant to said Article 32, as modified hereby; it being understood and
agreed, however, that Tenant may only exercise such renewal option with respect
to the entire Second Expanded Demised Premises or any portion thereof
consisting of two (2) or more contiguous floors, provided there is no
separation of any floors which are included in the Second Expanded Demised
Premises but not part of the EP Renewal Premises). If Tenant exercises such
renewal option with respect to less than all of the Second Expanded Demised
Premises, then “The Percentage” for purposes of calculating operating expense
and real estate tax escalation additional rents payable under paragraphs B and
C of Article 2 of the Lease, as modified hereby, respectively, during the
Extended Term shall be calculated in the same manner as under the Original
Lease with respect to the Original Demised Premises.


          16.
A. Tenant represents and warrants that it neither consulted nor
negotiated with any broker or finder with regard to this Agreement other than
Newmark & Company Real Estate, Inc., d/b/a Newmark Knight Frank and Cassidy
Turley New York, Inc. (collectively, the “Brokers”). Tenant shall indemnify,
defend and hold Landlord harmless from and against any claims for fees or
commissions from anyone other than the Brokers with whom Tenant has dealt in
connection with this Agreement.


                    B.
Landlord represents and warrants that it neither consulted nor negotiated with
any broker or finder with regard to this Agreement other than the Brokers.
Landlord shall indemnify, defend and hold Tenant harmless from and against any
claims for fees or commissions from anyone including the Brokers, with whom
Landlord has dealt in connection 


24





with this Agreement. Landlord agrees to pay any commission or fee owing
to the Brokers pursuant to separate agreements with them. Nothing in this
Article shall be construed to be a third party beneficiary contract.


          17.
A. Tenant hereby represents that, to the best of its knowledge:
(i) Landlord is in full compliance with the Lease, (ii) Landlord is not in
default beyond any applicable grace period of any of its respective obligations
under the Lease, and (iii) there exists no defense or counterclaim to the
payment of any fixed annual rent or additional rent Landlord has billed Tenant
to date under the Lease.


                    B.
Landlord hereby represents that, to the best of its knowledge: (i) Tenant is in
full compliance with the Lease, and (ii) Tenant is not in default beyond any
applicable grace period of any of its respective obligations under the Lease.


          18.
This Agreement shall not in any way bind Landlord or Tenant until
such time as it has been executed by both Landlord and Tenant, and thereafter
has been duly delivered to the respective parties.


          19.
Except as herein modified, all of the terms, covenants and
conditions of the Lease are and shall remain in full force and effect and are
hereby ratified and confirmed.


          20.
This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective legal representatives,
successors and assigns. This Agreement constitutes the entire agreement of the
parties concerning the matters and transactions covered by this Agreement.


          21. This
Agreement may be executed in one (1) or more counterparts, each of which shall
be deemed an original, but all of which when taken together will constitute one
and the same instrument. The signature page of any counterpart of this
Agreement may be detached therefrom without impairing the legal effect of the
signature(s) thereon provided such signature page is attached to any other
counterpart of this Agreement identical thereto except having an additional signature
page executed by the other party to this Agreement attached thereto. Any
counterpart of this Agreement may be delivered via facsimile, email or other
electronic transmission, and shall be legally binding upon the parties hereto
to the same extent as originals.


          22. Tenant
shall reasonably cooperate with Landlord in connection with any Landlord’s SAOP
Punch List Work, Landlord’s SAOP Asbestos Removal Work, Landlord’s SAOP
Submetering Work, Landlord’s SAOP Additional Electrical Capacity Work,
Landlord’s Excess Capacity Recapture Work and Landlord’s Electrical Restoration
Work, including, without limitation, by providing Landlord and its contractors
with such access to the Second Expanded Demised Premises as is reasonably
necessary for the performance of such work. Landlord shall use commercially
reasonable efforts to effect such access and work in a manner which minimizes
any interference with, as the case may be, the performance of Tenant’s SAOP
Initial Installation Work or the conduct of Tenant’s business at the Second
Expanded Demised Premises; it being understood and agreed, however, that any
such work may be performed on Business Days during Business Hours unless (a)
such entry or work (1) results in a denial of any 


25





reasonable means of access to the Second Expanded Demised Premises or
use of the Second Expanded Demised Premises for the performance of Tenant’s
SAOP Initial Installation Work or for the conduct of Tenant’s business in the
normal course thereof or (2) imminently threatens the health or safety of any
authorized occupant of the Second Expanded Demised Premises; or (b) Tenant
shall request that Landlord perform the work on an overtime or premium basis
and Tenant shall agree to reimburse Landlord for the cost of same (provided
such work is capable of being performed on such overtime or premium basis and
it is possible to do so), in which event Tenant shall pay to Landlord, within
thirty (30) days after demand therefor, an amount equal to the difference
between overtime or premium pay rates and the regular pay rates for performing
such work.


          23. It is
acknowledged and agreed that Tenant shall be entitled to the $45,000.00 rent
credit set forth in Article 25 of the Second Modification, which rent credit
shall be applied, until fully depleted, against the first fixed annual rent due
under the Lease, as modified hereby, with respect to the 15th Floor
Portion.


          24. A. If,
at any time during the term of the Lease, as modified hereby, Landlord issues a
written proposal to a prospective tenant (or its agent) for the leasing of all
or any part of the 20th and/or 21st floor of the Building
(whether or not such proposal includes space on any other floor of the
Building), then Landlord shall simultaneously give Tenant a copy of such
proposal (but with the identity of the prospective tenant and any terms and
conditions which are not applicable to the 20th and/or 21st
floor space redacted), which shall include a diagram showing the 20th
and/or 21st floor space covered thereby, as well as the following
proposed terms for the leasing of such space: the term, the term commencement
date, the rent commencement date, the fixed annual rental rates, the escalation
additional rents (including base years), the electricity charges, the rentable
square foot area of the space, the condition in which Landlord is willing to
lease such space, including, without limitation, any base building work which
Landlord is willing to perform and/or work allowance or contribution which
Landlord is willing to make towards the cost of Tenant’s initial installation
in such space, and the amount of any security required by Landlord in
connection with the leasing of such space (each such proposal being a “Landlord
Proposal”). If and so long as Tenant is not in default under the Lease, as
modified hereby, beyond any applicable notice and/or cure period, Tenant shall
have the option, with respect to the 20th and/or 21st
floor space included in the Landlord Proposal (the “Landlord Proposal Space”),
exercisable by written notice to Landlord given within five (5) business days
after Tenant has been given the Landlord Proposal (time being of the essence),
to add to the Second Expanded Demised Premises all but not part of such
Landlord Proposal Space, pursuant to the terms and conditions set forth in the
Landlord Proposal; it being understood and agreed, however, that Tenant shall
only be required to provide the security required under the Landlord Proposal
if there has been a material adverse change in the financial condition of
Tenant following the date of this Agreement which remains in effect on the date
Tenant exercises such option. If Tenant duly and timely exercises such option,
then Landlord and Tenant shall enter into an amendment of the Lease, as
modified hereby, confirming the inclusion of the Landlord Proposal Space in the
Second Expanded Demised Premises pursuant to the terms and conditions set forth
in the Landlord’s Proposal. In all other respects, the terms and conditions
contained in the Lease, as modified hereby, shall remain unmodified. Any such
amendment of the Lease, as modified hereby, shall be in Landlord’s then
standard form for the Building (but in any event 


26





shall be substantially similar to this Agreement). In the event that
Tenant fails to exercise its option as aforesaid within such five (5) business
day period, then Tenant shall be deemed to have waived its rights under this
Article with respect to the leasing of such Landlord Proposal Space based on
the Landlord Proposal. However, the foregoing provisions shall again apply with
respect to any subsequent Landlord Proposal which Landlord issues with respect
to such Landlord Proposal Space, even if it is to the same prospective tenant
(or its agent) to whom the original Landlord Proposal was issued; provided,
however, that with respect to any such subsequent Landlord Proposal to the same
prospective tenant (or its agent) to whom the original Landlord Proposal was
issued which is sent on a “Best and Final” basis, such five (5) business day
period in which Tenant must respond to such subsequent Landlord Proposal shall
be reduced to a period of twenty-four (24) hours (time being of the essence).


                    B.
The foregoing provisions are intended to reflect the intention of
the parties that Tenant shall have no other rights with respect to Landlord’s
renting of the above described space or any other space in the Building, except
as specifically set forth in Article 43 of the Lease.


                    C.
The exercise by Tenant of its rights under this Article (or under
said Article 43) shall be conditioned upon the occupancy of at least eighty
percent (80%) of the then rentable square foot area of the Second Expanded
Demised Premises by Tenant and/or any Affiliate of Tenant and/or Desk Space
User.


          IN WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.


	
  

 	
  

 	
  

 
	
  

 	
 LANDLORD:

 
	
  

 	
 EMPIRE STATE
 BUILDING COMPANY L.L.C.

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
 /s/ Peter L.
 Malkin

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Peter L.
 Malkin, Member

 
	
  

 	
  

 	
  

 
	
  

 	
 TENANT: 

 
	
  

 	
 COTY INC.

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
   Name: 

 
	
  

 	
  

 	
   Title: 

 


27





shall be substantially similar to this Agreement). In the event that
Tenant fails to exercise its option as aforesaid within such five (5) business
day period, then Tenant shall be deemed to have waived its rights under this
Article with respect to the leasing of such Landlord Proposal Space based on
the Landlord Proposal. However, the foregoing provisions shall again apply with
respect to any subsequent Landlord Proposal which Landlord issues with respect
to such Landlord Proposal Space, even if it is to the same prospective tenant
(or its agent) to whom the original Landlord Proposal was issued; provided,
however, that with respect to any such subsequent Landlord Proposal to the same
prospective tenant (or its agent) to whom the original Landlord Proposal was
issued which is sent on a “Best and Final” basis, such five (5) business day
period in which Tenant must respond to such subsequent Landlord Proposal shall
be reduced to a period of twenty-four (24) hours (time being of the essence).


                    B.
The foregoing provisions are intended to reflect the intention of
the parties that Tenant shall have no other rights with respect to Landlord’s
renting of the above described space or any other space in the Building, except
as specifically set forth in Article 43 of the Lease.


                    C.
The exercise by Tenant of its rights under this Article (or under
said Article 43) shall be conditioned upon the occupancy of at least eighty
percent (80%) of the then rentable square foot area of the Second Expanded
Demised Premises by Tenant and/or any Affiliate of Tenant and/or Desk Space
User.


          IN WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.


	
  

 	
  

 	
  

 
	
  

 	
 LANDLORD:

 
	
  

 	
 EMPIRE STATE
 BUILDING COMPANY L.L.C.

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
   Peter L.
 Malkin, Member

 
	
  

 	
  

 	
  

 
	
  

 	
 TENANT: 

 
	
  

 	
 COTY INC.

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Jules
 Kaufman

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
   Name: Jules
 Kaufman

 
	
  

 	
  

 	
   Title:
 Senior VP, General Counsel and Secretary

 


27





EXHIBIT A


SECOND ADDITIONAL OFFICE PREMISES






[Floor Plan]






[Floor Plan]






[Floor Plan]






EXHIBIT B


BUILDING STANDARD

ENVIRONMENTAL DESIGN AND CONSTRUCTION GUIDELINES





BUILDING STANDARD ENVIRONMENTAL DESIGN

AND CONSTRUCTION GUIDELINES


	
  

 	
  

 
	
 A.

 	
 Energy Efficiency:

 


          1. Reduce
lighting power density from ASHRAE/IESNA 90.1-2007 standards by at least 10%
and up to 35%, as long as the measures required in order to do so do not affect
the design intent of the Second Additional Office Premises in any material
respect. This may be achieved through efficient lighting design, use of low
wattage fixtures and reflective surfaces as well as LED task lights and
day-lighting optimization strategies.


          2.
Implement lighting controls, including daylight dimming controls, for lighting
within the perimeter zone (approximately fifteen (15) feet from the perimeter
walls), except for non windowed areas that have no penetration of natural
light. Install occupancy sensors for a target of 75% of the connected lighting
load of the useable space.


          3. Optimize
energy performance of HVAC systems through zoning controls, VFD’s on pumps and
motors, and VAV distribution systems, and specify CFC-free refrigerants.


          4.
Implement Demand Controlled Ventilation through the use of CO2 sensors in the
Second Additional Office Premises and in the return air stream to the Air
Handling Unit serving the Second Additional Office Premises and tie in to
controls.


          5. Tie in
radiators to VAV box controls and building management system.


          6. Install
local instantaneous hot water heaters.


          7. Target
lighting and plug load of 2.0-2.5 Watts per usable square foot of demand load.


          8. Reduce
plug loads by specifying equipment and appliances (including, without
limitation, computers, printers, refrigerators, copiers, and A/V and IT
equipment) that meet or exceed Energy Star requirements in effect as of the
date hereof. This provision shall only apply to new equipment and appliances
purchased by Tenant for use within the Second Additional Office Premises.


          9.
Perform a one-time commissioning of energy systems within the
Second Additional Office Premises (including, without limitation, lighting,
HVAC and electrical) after substantial completion of Tenant’s SAOP Initial Installation
Work in order to ensure design optimizes performance and systems are
constructed and function per efficient design.









	
  

 	
  

 
	
 B.

 	
 Water Efficiency:

 


          1. Specify
low flow fixtures, including, without limitation, lavatories, water closets, urinals
and pantry sinks.


	
  

 	
  

 
	
 C.

 	
 Materials and Resources:

 


          1.
Divert construction waste from landfills through recycling and
donation programs.


          2.
Reuse materials whenever possible, including construction
materials.


          3.
Specify recycled content materials whenever reasonably possible,
which may include, without limitation, gypsum board, acoustical tiles, carpet
and carpet backing.


          4.
Specify regionally produced and extracted materials whenever
possible.


          5.
Specify rapidly renewable resources whenever reasonably possible,
including, without limitation, bamboo, wool, linoleum and cork.


          6.
Specify and use wood products certified by the Forest Stewardship
Council (FSC) whenever reasonably possible, provided that the cost of such wood
products is consistent with the market price of comparable non-certified
products.


	
  

 	
  

 
	
 D.

 	
 Indoor Environmental Quality:

 


          1.
Monitor delivery of outside air to ensure indoor air quality
compliance with ASHRAE 62.1 and 55.


          2.
Implement Construction Indoor Air Quality Management Plans during
performance of Tenant’s SAOP Initial Installation Work and prior to occupancy
to minimize the presence and spread of air pollutants.


          3.
Specify and install low-emitting (low or no Volatile Organic
Compounds) adhesives, sealants, paints, coatings, flooring systems, composite
wood and agrifiber products, systems furniture and seating.


          4.
Offer occupants control of lighting.


          5.
Design and build to optimize daylight and views for occupants,
which may be achieved through interior rather than exterior offices, or
perimeter offices with glass fronts.


2






EXHIBIT C


HSBC SNDA









	
  

 
	

 


 
	
  

 
	
 HSBC BANK USA, NATIONAL ASSOCIATION,
 as agent

 
	
 (Agent)

 
	
  

 
	
 - and -

 
	
  

 
	
 COTY INC.

 
	
 (Tenant)

 
	
  

 
	

 


 
	
  

 
	
 SUBORDINATION, NON-DISTURBANCE

 
	
 AND ATTORNMENT AGREEMENT

 
	
  

 
	

 


 






	
  

 	
  

 	
  

 
	
  

 	
 Dated:

 	
 April ____,
 2012

 
	
  

 	
  

 	
  

 
	
  

 	
 Location:

 	
 Empire State
 Building 

 
	
  

 	
  

 	
 350 Fifth
 Avenue

 
	
  

 	
  

 	
 New York,
 New York

 
	
  

 	
  

 	
  

 
	
  

 	
 Block:

 	
 00835

 
	
  

 	
 Lot:

 	
 0041

 
	
  

 	
 County:

 	
 New York

 
	
  

 	
  

 	
  

 
	
  

 	
 PREPARED BY
 AND UPON 

 
	
  

 	
 RECORDATION
 RETURN TO:

 
	
  

 	
  

 
	
  

 	
 Cadwalader,
 Wickersham & Taft LLP 

 
	
  

 	
 One World
 Financial Center

 
	
  

 	
 New York,
 New York 10281

 
	
  

 	
 Attention:
 Steven M. Herman, Esq.

 
	
  

 	
  

 
	

 


 










SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT


          THIS SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this “Agreement”)
is made as of the _________ day of April 2012 by and between HSBC BANK
USA, NATIONAL ASSOCIATION, a bank organized under the laws of the United States of America (“HSBC”),
having an address at 452 Fifth Avenue, New York, New York 10018, as
administrative agent (“Agent”) for itself in its individual capacity as
a lender and the other co-lenders that may exist from time to time (together
with HSBC in its individual capacity as a lender, collectively, “Lenders”)
and COTY INC., having an
address at 350 Fifth Avenue, Suite 1400, New York, New York 10118 (“Tenant”).


RECITALS:


          A.
Empire State Land Associates L.L.C. (“Ground Lessor”), as
successor-in-interest to The Prudential Insurance Company of
America, and Empire
State Building Associates L.L.C. (“Ground Lessee”), as
successor-in-interest to Alglan Realty Corporation, Rostev Realty Corporation
and Bentob Realty Corporation, are parties to that certain Indenture of Ground
Lease dated December 21, 1951 and recorded December 21, 1951 in the Office of
the Register of the City of New York (the “City Register’s Office”) at
book 4759, page 534 (the “Original Ground Lease”), which Original Ground
Lease was amended by that certain (i) Modification of Indenture of Lease dated
December 27, 1961 and recorded December 27, 1961 in the City Register’s Office
at book 5173, page 49, (ii) Second Modification of Indenture of Lease dated
February 15, 1965 and recorded February 15, 1965 in the City Register’s Office
at book 5314, page 479, and (iii) Agreement and Declaration dated December 2,
1965 and recorded December 10, 1965 in the City Register’s Office at book 5353,
page 260 (the Original Ground Lease, as so amended, the “Ground Lease”).


          B.
Ground Lessee and Empire State Building Company L.L.C. (“Landlord”),
as successor-in-interest to Lawrence A. Wien, Harry B. Helmsley, Martin Weiner
Realty Corporation and Parempco Inc., as joint venturers associated under the
name Empire State Building Company, are parties to that certain Agreement of
Sublease dated December 27, 1961 and recorded December 27, 1961 in the City
Register’s Office at book 5173, page 155 (the “Original Sublease”),
which Original Sublease was amended by that certain (i) First Modification of
Sublease dated February 15, 1965 and recorded February 15, 1965 in the City
Register’s Office at book 5315, page 1, (ii) Second Modification of Sublease
dated February 25, 2009 (which was not recorded) and (iii) Third Modification of
Sublease dated July 26, 2011 and recorded August 9, 2011 in the City Register’s
Office as CRFN 2011000279922 (the Original Sublease, as amended, the “Sublease”).


          C.
Lenders have made a loan and will in the future advance
additional amounts thereunder (collectively, the “Loan”) to Ground
Lessor and Ground Lessee (Ground Lessor and Ground Lessee are hereinafter
referred to collectively as “Borrower”), which Loan is given pursuant to
the terms and conditions of that certain Loan Agreement (the “Loan Agreement”)
dated July 26, 2011 by and among Agent, Lenders and Borrower. The Loan is
secured by a certain Consolidated, Amended and Restated Mortgage, Assignment of
Leases and Rents and Security Agreement dated July 26, 2011 and recorded August
9, 2011 in the City 






Register’s Office as CRFN 2011000279924 by and between Agent and
Borrower (together with any and all future advances, renewals, increases,
modifications, spreaders, consolidations, replacements and extensions thereof,
the “Mortgage”), which Mortgage encumbers, among other things, the fee
estate of Ground Lessor in and to the leasehold estate of Ground Lessee under
the Ground Lease and the Sublease in the land more particularly described in Exhibit
A attached hereto (the “Land”) and the building erected thereon
commonly known as the Empire State Building (the “Building;” the Land
and the Building are hereinafter referred to collectively as the “Property”);


          D.
Tenant subleases a portion of the Building from Landlord under
and pursuant to the provisions of that certain lease described on Exhibit B
attached hereto (the “Lease”); and


          E.
Tenant has agreed to subordinate the Lease to the Mortgage and to
the lien thereof and Agent has agreed to grant non-disturbance to Tenant under
the Lease on the terms and conditions hereinafter set forth and, accordingly,
Tenant and Agent desire to confirm their understanding with respect to the
Lease and the Mortgage.


AGREEMENT:


          For good
and valuable consideration, Tenant and Agent agree as follows:


          1. Subordination.
Subject to the terms, covenants and conditions of this Agreement, Tenant agrees
that the Lease and all of the terms, covenants and provisions thereof and all
rights, remedies and options of Tenant thereunder shall at all times be subject
and subordinate in all respects to the lien of the Mortgage including, without
limitation, all sums secured thereby, with the same force and effect as if the
Mortgage had been executed, delivered and recorded prior to the execution and
delivery of the Lease.


          2. Non-Disturbance.
If any action or proceeding is commenced by Agent or any Lender for the
foreclosure of the Mortgage or the sale of the Property, or to enforce any
other right or remedy of Agent or any Lender, Tenant shall not be named as a
party therein (unless such joinder shall be required by law, provided, however,
such joinder shall not result in the termination of the Lease or adversely
affect Tenant’s rights under the Lease including, without limitation, Tenant’s
rights to possess and use the premises demised thereunder), and the sale of the
Property in any such action or proceeding and the exercise by Agent or Lender
of any of its or their other rights or remedies under the Mortgage and the
other documents executed in connection therewith (the “Loan Documents”)
shall be made subject to all rights and remedies of Tenant under the Lease
which Lease shall continue in full force and effect upon all of the terms,
covenants and conditions set forth in the Lease except as otherwise expressly
set forth in Section 3 below, provided, that, at the time of the
commencement of any such action or proceeding or at the time of any such sale
or exercise of any such other rights or remedies, Tenant shall not be in
default under any of the terms, covenants or conditions of the Lease on
Tenant’s part to be observed or performed beyond the expiration of all
applicable notice, grace and cure periods provided under the Lease or under
applicable law and the Lease shall be in full force and effect.


2






          3. Attornment.
Upon any conveyance of the Property by reason of the foreclosure of the
Mortgage or the acceptance of a deed or assignment in lieu of foreclosure or
otherwise, and if the conditions set forth in Section 2 above have been
met at the time of such transfer or, if such conditions have not been met at
such time, at the option of the transferee of the Property (the “Transferee”),
the Lease shall not be terminated or affected thereby but shall continue in
full force and effect as a direct lease between the Transferee and Tenant upon
all of the terms, covenants and conditions set forth in the Lease and in that
event, Tenant agrees to attorn to the Transferee and the Transferee by virtue
of its acquisition of the Property shall be deemed to have agreed to accept
such attornment, provided, however, that the Transferee shall not
be (a) liable (i) for Landlord’s failure to perform any of its obligations
under the Lease which have accrued prior to the date (the “Transfer Date”)
on which the Transferee shall become the owner of the Property (such
obligations, “Landlord’s Obligations”) or (ii) for any act or omission
of Landlord (whether prior to or after such foreclosure or sale); provided,
however, that nothing contained in clauses (i) and (ii) above shall exculpate,
or be construed as exculpating, the Transferee from liability for any default
of Landlord under the Lease continuing after the Transfer Date, (b) subject to
any offsets, defenses, abatements or counterclaims which shall have accrued to
Tenant against Landlord prior to the Transfer Date; provided, however, that the
Transferee shall be subject to such offsets, defenses, abatements and
counterclaims in favor of Tenant as are expressly permitted pursuant to the
terms of the Lease, including, without limitation, any offsets available to
Tenant with respect to Landlord’s FAOP Contribution and Landlord’s SAOP
Contribution (as such terms are defined in the Lease), (c) liable for the
return of rental security deposits, if any, paid by Tenant to Landlord in
accordance with the Lease unless such sums are actually received by or credited
to the Transferee, (d) bound by any payment of rents, additional rents or other
sums which Tenant may have paid more than one (1) month in advance of their
date due pursuant to the provisions of the Lease to Landlord unless (i) such
sums are actually received by or credited to the Transferee or such sums are an
estimated payment against annual pass-through charges, or (ii) such prepayment
shall have been expressly approved of by the Transferee, (e) bound by any
agreement amending, modifying or terminating the Lease made without the Agent’s
prior written consent prior to the Transfer Date, except for any such
agreements made pursuant to provisions of the Lease which contemplate the
making of such agreements, and (f) liable for any tenant improvement allowance
payable to Tenant as reimbursement for the costs incurred by Tenant in
preparing the premises demised under the Lease for Tenant’s occupancy. Notwithstanding
the foregoing, in no event shall the Transferee be liable to make any
out-of-pocket payments to Tenant in order to reimburse Tenant for any
overpayments of additional rent with respect to escalations in Expenses (as
such term is defined in the Lease) and/or real estate taxes made by Tenant to
Landlord prior to the Transfer Date, so long as the Transferee, at least twenty
(20) days prior to the Transfer Date, requests Tenant in writing to inform the
Transferee of any such amounts that may be payable to Tenant pursuant to the
Lease and Tenant fails to do so before the Transfer Date and provided further
that the foregoing shall not be deemed to abrogate Tenant’s audit rights under
the Lease. If, as a result of any such audit, any such reimbursements are
determined in accordance with the terms of the Lease to be due and payable to
Tenant, Tenant shall have the right to offset the amount thereof against the
next installment(s) of fixed annual rent payable under the Lease and in no
event shall the Transferee be liable to make any out-of-pocket payments to
Tenant on account thereof.


3





          4.
Notice to Tenant. After notice is given to Tenant by Agent
that Landlord is in default under the Loan Agreement, the Mortgage and the
other Loan Documents and that the rentals under the Lease should be paid to
Agent pursuant to the terms of the assignment of leases and rents executed and
delivered by Landlord to Agent in connection therewith, Tenant shall thereafter
pay to Agent or as directed by Agent, all rentals and all other monies due or
to become due to Landlord under the Lease and Landlord hereby (i) expressly
authorizes Tenant to make such payments to Agent or as Agent may direct, (ii)
releases and discharges Tenant from any liability to Landlord on account of any
such payments and (iii) agrees that all such payments shall be fully credited
against Tenant’s obligations under the Lease as and when they become due.


          5.
Agent’s Consent. Tenant shall not, without obtaining the
prior written consent of Agent (a) enter into any agreement amending, modifying
or terminating the Lease (except for any such agreements made pursuant to
provisions of the Lease which expressly contemplate the making of such
agreements including, without limitation, Articles 32 and 43 of the Lease), (b)
prepay any of the rents, additional rents or other sums due under the Lease for
more than one (1) month in advance of their dates due pursuant to the
provisions of the Lease, or (c) voluntarily surrender the premises demised
under the Lease or terminate the Lease without cause or shorten the term
thereof; and any such amendment, modification, termination, prepayment or
surrender, shall not be binding upon Agent. Agent shall not unreasonably
withhold, condition or delay its consent to any agreement amending or modifying
the Lease so long as such agreement does not amend or modify the rent, term or
other material terms of the Lease.


          6.
Agent to Receive Notices. Tenant shall notify (the “Default
Notice”) Agent concurrently with any notice sent to Landlord pursuant to
the Lease alleging any default by Landlord under the Lease which would entitle
Tenant to cancel or terminate the Lease (a “Landlord Default”). Tenant
agrees that, notwithstanding any provisions of the Lease to the contrary, no
Default Notice shall be effective unless it shall have been given to Agent in
accordance with the terms of Section 7 of this Agreement and Agent shall
have failed to cure such Landlord Default within thirty (30) days thereafter
(the “Cure Period”). Notwithstanding the foregoing, if a Landlord
Default cannot with due diligence be cured by Agent within the Cure Period,
then Agent shall have a reasonable period for curing such Landlord Default so
long as Agent (i) within the Cure Period, advises Tenant, in writing, of
Agent’s intention to cure such Landlord Default and (ii) duly commences curing
such Landlord Default within the Cure Period and thereafter diligently
prosecutes the same to completion; provided, however, that in no event shall
Agent’s entire cure period exceed sixty (60) days. In addition to the
foregoing, Tenant shall endeavor to notify Agent concurrently with any notice
sent to Landlord pursuant to the Lease alleging any right of Tenant to abate
the rents, additional rents or any other sums payable thereunder.


          7.
Notices. All notices or other written communications
hereunder shall be deemed to have been properly given (a) upon delivery, if
delivered in person or by facsimile transmission with receipt acknowledged by
the recipient thereof, (b) one (1) Business Day (hereinafter defined) after
having been deposited for overnight delivery with any reputable overnight
courier service, or (c) three (3) Business Days after having been deposited in
any post 


4






office or mail depository regularly maintained by the U.S. Postal Service and sent by
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:


	
  

 	
  

 
	
 If to
 Tenant:

 	
 Coty Inc.

 
	
  

 	
 Two Park
 Avenue

 
	
  

 	
 New York,
 New York 10016 

 Attention: Chief Financial Officer 

 Facsimile No.: (212) 479-4317

 
	
  

 	
  

 
	
 with a copy
 to:

 	
 Coty Inc.

 
	
  

 	
 Two Park
 Avenue

 
	
  

 	
 New York,
 New York 10016 

 Attention: General Counsel 

 Facsimile No.: (212) 479-4375

 
	
  

 	
  

 
	
 If to Agent:

 	
 HSBC Bank
 USA, National Association, as Agent 

 545 Washington Boulevard, 10th Floor

 
	
  

 	
 Jersey City,
 New Jersey 07310

 
	
  

 	
 Attention:
 Commercial Mortgage Servicing Department 

 Facsimile No. (212) 525-1152

 
	
  

 	
  

 
	
 With a copy
 to:

 	
 Cadwalader,
 Wickersham & Taft LLP 

 One World Financial Center

 
	
  

 	
 New York,
 New York 10281

 
	
  

 	
 Attention:
 Steven M. Herman, Esq. 

 Facsimile No. (212) 504-6666

 


or addressed as such party may from time to time designate by written
notice to the other parties. For purposes of this Agreement, the term “Business
Day” shall mean a day on which commercial banks are not authorized or
required by law to close in New York, New York. Either party by notice to the
other may designate additional or different addresses for subsequent notices or
communications.


          8.
Joint and Several Liability. If Tenant consists of more
than one person, the obligations and liabilities of each such person hereunder
shall be joint and several. This Agreement shall be binding upon and inure to
the benefit of Agent, Tenant, Landlord (as to Section 4), the Transferee
and their respective successors and assigns.


          9.
Definitions. The term “Landlord” as used herein
shall mean and include the present landlord under the Lease and such landlord’s
predecessors in interest under the Lease, but shall not mean or include Agent.
The term “Property” as used herein shall mean the Property, the
improvements now or hereafter located thereon and the estates therein
encumbered by the Mortgage.


          10.
No Oral Modifications. This Agreement may not be modified
in any manner or terminated except by an instrument in writing executed by the
parties hereto.


5





          11. Governing
Law. This Agreement shall be deemed to be a contract entered into pursuant
to the laws of the State where the Property is located and shall in all
respects be governed, construed, applied and enforced in accordance with the
laws of the State where the Property is located without regard to conflicts of
laws principles.


          12. Inapplicable
Provisions. If any term, covenant or condition of this Agreement is held to
be invalid, illegal or unenforceable in any respect, this Agreement shall be
construed without such provision.


          13. Duplicate
Originals; Counterparts. This Agreement may be executed in any number of
duplicate originals and each duplicate original shall be deemed to be an
original. This Agreement may be executed in several counterparts, each of which
counterparts shall be deemed an original instrument and all of which together
shall constitute a single Agreement.


          14. Number
and Gender. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice versa.


          15. Further
Acts. Tenant will execute, acknowledge and deliver all instruments as Agent
shall, from time to time, reasonably require in order to confirm to Agent the
rights hereby granted to Agent, carry out the intention or facilitate the
performance of the terms of this Agreement or to record this Agreement, so long
as such instruments do not in any event increase the obligations and
liabilities of Tenant hereunder or otherwise abrogate the rights granted to
Tenant hereunder. Agent will, at no cost or expense to Agent, execute, acknowledge
and deliver all instruments as Tenant shall, from time to time, reasonably
require in order to record this Agreement, so long as such instruments do not
in any event increase the obligations and liabilities of Agent hereunder or
otherwise abrogate the rights granted to Agent hereunder.


          16. Limitations
on Agent’s and Lenders’ Liability. Tenant acknowledges that Lenders are
obligated only to Landlord to make the Loan upon the terms and subject to the
conditions set forth in the Loan Agreement, the Mortgage and the other Loan
Documents. In no event shall Agent, Lenders or the Transferee, nor any heir,
legal representative, successor, or assignee of Agent or Lenders or the
Transferee (Agent, Lender, the Transferee and any such heir, legal representative,
successor or assignee are hereinafter referred to collectively as the “Subsequent
Landlord”) have any liability for the obligations of Landlord under the
Lease unless and until the Subsequent Landlord succeeds to the interests of
Landlord under the Lease. If the Subsequent Landlord succeeds to the interests
of Landlord under the Lease, then Tenant shall look only to the Subsequent
Landlord’s interest in and to the Property and the proceeds thereof for the
satisfaction of Tenant’s remedies for the collection of a judgment (or other
judicial process) requiring the payment of money in the event of any default by
the Subsequent Landlord as landlord under the Lease, and no other property or
assets of the Subsequent Landlord shall be subject to levy, execution or other
enforcement procedure for the satisfaction of such remedies; provided, however,
that Tenant may exercise any other right or remedy provided under the Lease or
by law in the event of any such default by the Subsequent Landlord.


6





          17. Consent
by Landlord. Landlord is executing this Agreement for the purpose of (i)
evidencing its consent hereto, (ii) agreeing to be bound by the provisions of
Section 4 hereof and (iii) acknowledging that nothing contained herein or
resulting from the parties’ performance hereof creates any offsets, defenses or
claims under the Loan Documents.


[SIGNATURE PAGE TO FOLLOW]


7





          IN
WITNESS WHEREOF, Agent and Tenant have duly executed this Agreement as of the
date first above written.


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 AGENT:

 
	
  

 	
  

 
	
  

 	
 HSBC BANK
 USA, NATIONAL 

 ASSOCIATION, as agent

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
   Name: 

 
	
  

 	
  

 	
   Title: 

 
	
  

 	
  

 	
  

 
	
  

 	
 COTY INC.

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
   Name: 

 
	
  

 	
  

 	
   Title: 

 
	
  

 	
  

 
	
 The
 undersigned accepts and agrees to 

 the provisions of Section 4 hereof:

 	
  

 
	
  

 	
  

 
	
 LANDLORD:

 	
  

 
	
  

 	
  

 
	
 EMPIRE STATE
 BUILDING COMPANY L.L.C.

 	
  

 
	
  

 	
  

 
	
 By:

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
   Name: 

 	
  

 
	
  

 	
   Title: 

 	
  

 










ACKNOWLEDGMENTS


	
  

 	
  

 
	
 STATE OF NEW YORK

 	
 )

 
	
  

 	
 ss.:

 
	
 COUNTY OF NEW YORK

 	
 )

 


          On the ___
day of April, 2012, before me, the undersigned, a Notary Public in and for said
State, personally appeared __________________, personally known to me or proved
to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity, and that by his signature on the instrument, the
individuals, or the persons upon behalf of which the individual acted, executed
the instrument.


	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Notary
 Public

 	
  

 






	
  

 	
  

 
	
 STATE OF NEW YORK

 	
 )

 
	
  

 	
 ss.:

 
	
 COUNTY OF NEW YORK

 	
 )

 


          On the ___
day of April, 2012, before me, the undersigned, a Notary Public in and for said
State, personally appeared ________________, personally known to me or proved
to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity, and that by his signature on the instrument, the
individuals, or the persons upon behalf of which the individual acted, executed
the instrument.


	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Notary
 Public

 	
  

 













	
  

 	
  

 
	
 STATE OF NEW YORK

 	
 )

 
	
  

 	
 ss.:

 
	
 COUNTY OF NEW YORK

 	
 )

 


          On the ___
day of April, 2012, before me, the undersigned, a Notary Public in and for said
State, personally appeared _________________, personally known to me or proved
to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity, and that by his signature on the instrument, the
individuals, or the persons upon behalf of which the individual acted, executed
the instrument.


	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Notary
 Public

 	
  

 









EXHIBIT A 

LEGAL DESCRIPTION


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


          BEGINNING
at the corner formed by the intersection of the southerly side of West 34th
Street with the westerly side of Fifth Avenue;


          THENCE
Southerly along the westerly side of Fifth Avenue, 197 feet 6 inches to the northerly
side of West 33rd Street;


          THENCE
Westerly along the northerly side of West 33rd Street, 500 feet;


          THENCE
Northerly and parallel with the westerly side of Fifth Avenue, 98 feet 9 inches
to the middle line of the block;


          THENCE
Easterly and parallel with the northerly side of West 33rd Street, 75 feet;


          THENCE
again Northerly and parallel with the westerly side of Fifth Avenue and part of
the distance through a party wall, 98 feet 9 inches to the southerly side of
West 34th Street;


          THENCE
Easterly along the southerly side of West 34th Street, 425 feet to the comer
aforesaid, the point or place of BEGINNING.





EXHIBIT B 

LEASE DESCRIPTION


Agreement of Lease between Empire State Building Company L.L.C. and
Coty Inc. dated July 14, 2008 as modified by that certain (i) Commencement Date
Agreement dated as of January 14, 2009, (ii) First Lease Modification Agreement
dated as of March 17, 2009, (iii) Second Lease Modification Agreement dated May
19, 2011 and (iv) Third Lease Modification Agreement dated April ____ , 2012.


Leased Premises: The entire rentable area of the fourteenth (14th)
floor, a portion of the fifteenth (15th) floor, Storerooms 15A & 15C, and
the entire rentable area of the sixteenth (16th) and seventeenth (17th) floors
of the Building.






EXHIBIT A


LEGAL DESCRIPTION






EXHIBIT B 

LEASE DESCRIPTION


	
  

 	
  

 	
  

 	
  

 
	
 Lease:

 	
  

 	
  

 
	
  

 	

 


 
	
  

 	
  

 
	
 Amendments
 (if any):

 	
  

 
	
  

 	

 


 
	
  

 	
  

 
	
 Leased
 Premises:

 	
  

 
	
  

 	

 


 
	
  

 	
  

 










EXHIBIT D


ESCROW AGREEMENT FOR LANDLORD’S SAOP
CONTRIBUTION





EMPIRE STATE BUILDING COMPANY L.L.C.

350 Fifth Avenue, Third Floor

New York, New York 10118


As of April ___ , 2012


Coty Inc.

Two Park Avenue

New York, New York 10016


          Re:
Empire State Building, New York, New York


Ladies and
Gentlemen:


          Reference
is hereby made to the following documents:


          (i)
that certain lease (“Original Lease”) dated as of July 14, 2008
between Empire State Building Company L.L.C., as landlord (“Landlord”) and Coty
Inc., as tenant (“Tenant”), covering certain space (the “Original Demised
Premises”) consisting of the entire rentable area of the 14th floor, and a portion of the
15th floor, of the building (“Building”) known as the Empire State
Building, 350 Fifth Avenue, New York, New York, which Original Lease was
modified by a certain Commencement Date Agreement dated as of January 14, 2009
(“Commencement Date Agreement”), by a certain First Lease Modification
Agreement dated as of March 17, 2009 (“First Modification”), and by a certain
Second Lease Modification Agreement dated as of May 19, 2011 (which Original
Lease, as so modified, is hereinafter called the “Lease”); and


          (ii)
that certain proposed Third Lease Modification Agreement,
pursuant to which 15th and 18th portions of the floors of
the Building, and the entire rentable area of the 19th floor of the
Building, will be added to the premises demised under the Lease (the “Proposed
Modification”).


          Pursuant to
the First Modification, certain storage space on the fifteenth floor of the
Building (the “Storage Space”) was added to the premises demised under the
Original Lease.


          Pursuant to
the Second Modification, certain office space consisting of the entire rentable
area of the 16th and 17th floors of the Building (the
“First Additional Office Space”) was added to the premises demised under the
Original Lease, as modified by the Commencement Date Agreement and the First
Modification, so that, as of the date hereof, the premises demised under the
Lease consists of the Original Demised Premises, the Storage Space and the
First Additional Office Space (which are hereinafter collectively called the
“Existing Demised Premises”).


          HSBC Bank
USA, National Association (“HSBC”), the holder of a certain first mortgage
currently encumbering the Building (the “HSBC Mortgage”), is not willing to
assume 





responsibility for the payment of any unpaid portion of Landlord’s SAOP
Contribution (as such term is defined in Article 8C(iii) of the Proposed
Modification) if HSBC succeeds to the interest of Landlord under the Lease, as
modified by the Proposed Modification, notwithstanding its agreement to enter
into a non-disturbance agreement with Tenant. Tenant is not willing to execute
and deliver the Proposed Modification unless and until Landlord provides Tenant
with adequate security for the payment of any portion of Landlord’s SAOP
Contribution remaining unpaid if, as and when HSBC succeeds to the interest of
Landlord under the Lease, as modified by the Proposed Modification. As an
inducement to Tenant to execute and deliver the Proposed Modification, Landlord
is willing to provide such adequate security by depositing the amount of
Landlord’s SAOP Contribution (i.e., $8,079,874.00) into escrow, in accordance
with the terms and conditions hereinafter set forth.


          Therefore,
it is hereby agreed as follows:


          1.
Capitalized terms not defined herein shall have the meanings ascribed to such
terms in the Lease and the Proposed Modification.


          2.
Simultaneously with the execution and delivery of this letter
agreement by Landlord and Tenant, Landlord deposited the sum of $8,079,874.00
(the “SAOP Escrow Deposit”) with Landlord’s attorneys, David J. Bleckner, P.C.
(“Escrowee”), which shall hold such sum in escrow, in an interest bearing
attorney escrow account at Citibank, N.A. (or another bank selected by
Escrowee, notice of which shall be given to Landlord and Tenant), in accordance
with the terms and conditions of this letter agreement.


          3. The SAOP
Escrow Deposit shall be disbursed by Escrowee as follows:


                    A.
If, following HSBC’s succeeding to Landlord’s interest under the Lease, as
modified by the Proposed Modification, HSBC shall refuse to pay any unpaid
portion of Landlord’s SAOP Contribution (or interest or legal fees due in
connection therewith) when due, then, within two (2) business days after
Escrowee’s receipt of Tenant’s written demand therefor (accompanied by the
documentation set forth in clauses (a), (b) and (c) of Article 8C(iii) of the
Proposed Modification), Escrowee shall advise Landlord of Tenant’s demand by
sending a copy thereof and the accompanying supporting documentation. If
Landlord shall fail to object in writing to Escrowee’s disbursement of the
amount so demanded within five (5) business days after the date Escrowee’s
notice is given, Escrowee shall pay Tenant the amount so demanded on account of
Landlord’s SAOP Contribution. If Landlord shall timely object to such
disbursement (which objection, if made, shall be based solely on the claim that
Tenant has failed to satisfy the conditions to the disbursement of such funds
pursuant to the provisions of Article 8C(iii) of the Proposed Modification, and
shall be accompanied by an explanation of the reason(s) therefor and details
sufficient to enable Tenant to cure such objection), then Escrowee shall advise
Tenant of Landlord’s objection by sending a copy thereof to Tenant, and
Escrowee shall continue to hold such funds until resolution of the dispute (or,
at its election, shall deposit such funds into court, as hereinafter provided
in Article 4A). Any such dispute shall be resolved by arbitration in accordance
with the provisions of Article 41 of the Original Lease, and if Tenant prevails
in such arbitration proceeding, then Escrowee shall be required to pay Tenant
(from the SAOP Escrow Deposit) the full amount awarded to Tenant in such
proceeding, including, without limitation, 







any attorneys’ fees and/or interest awarded to Tenant in such
proceeding in accordance with the provisions of said Article 8C(iii).


                    B.
In the event that Landlord shall pay Tenant any portion of
Landlord’s SAOP Contribution in accordance with the terms of the Proposed
Modification, then Landlord shall notify Escrowee thereof. Within two (2)
business days after Escrowee’s receipt of Landlord’s notice of such payment,
Escrowee shall notify Tenant that Escrowee intends to refund to Landlord, from
the SAOP Escrow Deposit, an amount equal to the portion of Landlord’s SAOP
Contribution so paid by Landlord. If Tenant shall fail to object in writing to
such refund by Escrowee, within five (5) business days after the date
Escrowee’s notice is given, then Escrowee shall refund such portion of the SAOP
Escrow Deposit to Landlord (and the amount of the SAOP Escrow Deposit which is
required to maintained hereunder shall be deemed reduced by such amount). If
Tenant shall timely object to such refund by Escrowee (which objection, if
made, shall be based solely on the claim that Landlord has failed to actually
pay such portion of Landlord’s SAOP Contribution (or interest or legal fees due
in connection therewith), and shall be accompanied by a reasonably detailed
explanation of the reason(s) therefor), then Escrowee shall advise Landlord of
Tenant’s objection by sending a copy thereof to Landlord, and Escrowee shall
continue to hold such funds until resolution of the dispute (or, at its
election, shall deposit such funds into court, as hereinafter provided in
Article 4A). Any such dispute shall be resolved by arbitration in accordance
with the provisions of Article 41 of the Original Lease.


                    C.
In the event that Tenant shall fail by the fourth anniversary of
the SAOP Commencement Date to perform sufficient Tenant’s SAOP Initial
Installation Work for Landlord’s SAOP Contribution to be fully applied, then
Landlord shall notify Escrowee thereof. Within two (2) business days after
Escrowee’s receipt of such notice from Landlord, Escrowee shall notify Tenant
that Escrowee intends to refund to Landlord, from the SAOP Escrow Deposit, an
amount equal to the then remaining balance of the SAOP Escrow Deposit. If
Tenant shall fail to object in writing to such refund by Escrowee, within five
(5) business days after the date Escrowee’s notice is given, then Escrowee
shall refund such remaining balance of the SAOP Escrow Deposit to Landlord. If
Tenant shall timely object to such refund by Escrowee (which objection, if
made, shall be based solely on the claim that Tenant has, prior to the fourth
anniversary of the SAOP Commencement Date, performed sufficient Tenant’s SAOP
Initial Installation Work for Landlord’s SAOP Contribution to be fully applied,
or that Landlord has not paid interest or legal fees which are then due to
Tenant under the provisions of the Proposed Modification governing Landlord’s
SAOP Contribution, and which objection shall be accompanied by a reasonably
detailed explanation of the reason(s) therefor), then Escrowee shall advise
Landlord of Tenant’s objection by sending a copy thereof to Landlord, and Escrowee
shall continue to hold such funds until resolution of the dispute (or, at its
election, shall deposit such funds into court, as hereinafter provided in
Article 4A). Any such dispute shall be resolved by arbitration in accordance
with the provisions of Article 41 of the Original Lease.


                    D.
All interest earned on the SAOP Escrow Deposit shall be added onto and become
part of the SAOP Escrow Deposit and, to the extent it has not been applied in
accordance with the terms hereof, shall be released to Landlord when Landlord’s
obligations 





under the Lease, as modified by the Proposed Modification, with respect
to Landlord’s SAOP Contribution have been fully satisfied.


          4. A. In
the event of any dispute regarding this letter agreement or the SAOP Escrow
Deposit, or uncertainty as to the duties of Escrowee hereunder, then except as
otherwise expressly provided for herein, Escrowee shall pay the SAOP Escrow
Deposit or disputed portion thereof, as the case may be, into court pursuant to
the relevant statute.


                    B.
The parties agree jointly to defend (by attorneys selected by Escrowee),
indemnify and hold harmless Escrowee against and from any claim, judgment,
loss, liability, cost or expense resulting from any dispute or litigation
arising out of or concerning Escrowee’s duties or services hereunder. This
indemnity shall include, without limitation, reasonable attorneys’ fees and
disbursements either paid to retain attorneys or representing the fair value of
legal services rendered by Escrowee itself.


                    C.
Escrowee shall not be liable for any error in judgment or for any act done or
step taken or omitted in good faith, or for any mistake of fact or law, except
for Escrowee’s own gross negligence or willful misconduct. Notwithstanding
anything contained in this letter agreement to the contrary, Escrowee shall
have no obligation or responsibility to determine the validity of any objection
by either Landlord or Tenant to the disbursement of all or any part of the SAOP
Escrow Deposit; it being understood and agreed that such determination shall be
made solely by the arbitrators in any arbitration proceeding relating to such
objection.


                    D.
The parties acknowledge that Escrowee is merely a stakeholder. Upon payment of
the SAOP Escrow Deposit pursuant to this letter agreement, Escrowee shall be
fully released from any and all liability and obligations with respect to the
SAOP Escrow Deposit.


                    E.
It is acknowledged and agreed that Escrowee is the attorney for Landlord and
that Escrowee shall be entitled to represent Landlord in any lawsuit, except if
same relates to the Escrow Deposit, unless the SAOP Escrow Deposit has been
deposited into court by Escrowee, as hereinabove provided (in which case
Escrowee shall be entitled to represent Landlord in such lawsuit).


                    F.
Any notice or communication to Escrowee shall be in writing and either (a)
delivered by hand or by overnight courier, with receipt acknowledged in either
case, to Escrowee at 350 Fifth Avenue, Suite 2816, New York, New York 10118, or
(b) given by telecopier to (212) 279-4495, in either case, Attn: David J.
Bleckner, Esq. Each notice to Escrowee shall be deemed given when received (or
refused). Any notice or communication to Landlord or Tenant shall be governed
by the notice provisions of the Original Lease.


          5. The
provisions of this letter agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed wholly in the State of New York, without
regard to principles of conflicts of law.





          6. This
letter agreement shall bind and inure to the benefit of the parties hereto,
their heirs, personal representatives, successors and permitted assigns.


          7. This
letter agreement may not be modified, amended, altered or discharged except by
an instrument in writing signed by the parties hereto.


          8. This
letter agreement may be executed in counterparts, each of which shall be an
original and all of which counterparts taken together shall constitute one and
the same agreement.


          9. This
letter agreement supersedes any and all understandings and agreements between
the parties with respect to the subject matter hereof.


          10. In the
event that any provision of this letter agreement shall be held to be invalid
or unenforceable in any respect, the validity, legality or enforceability of
the remaining provisions of this letter agreement shall be unaffected thereby.


          11. This
letter agreement may be executed in two or more counterparts and all
counterparts so executed shall for all purposes constitute one agreement
binding on all of the parties hereto, notwithstanding that all parties shall
not have executed the same counterparts. Facsimile and photocopy signatures on
this letter agreement shall have the same force and effect as originals.


          Please sign
and return a copy of this letter to the undersigned so as to confirm your
agreement with the foregoing.


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Very truly
 yours,

 
	
  

 	
  

 
	
  

 	
 EMPIRE STATE
 BUILDING COMPANY L.L.C., 

 Landlord

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
   Name: Peter L. Malkin

 
	
  

 	
  

 	
   Title: Member

 
	
  

 	
  

 
	
 AGREED:

 	
  

 
	
  

 	
  

 
	
 COTY INC.,
 Tenant

 	
  

 
	
  

 	
  

 
	
 By:

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
   Name: 

 	
  

 
	
  

 	
   Title: 

 	
  

 













	
  

 	
  

 	
  

 
	
 DAVID J.
 BLECKNER, P.C., Escrowee

 	
  

 
	
  

 	
  

 
	
 By:

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Name: David
 J. Bleckner, Esq.

 	
  

 
	
  

 	
 Title:
 President

 	
  

 










EXHIBIT E


18TH FLOOR MUST TAKE PREMISES





[Floor Plan]