**Exhibit10.60**

 

AGREEMENT OF LEASE

 

between

 

Fisher-Park Lane Owner LLC,Landlord

 

and

 

General Maritime Corporation,Tenant

 

As of November 30, 2004

 

----

 

PREMISES:

 

299 Park AvenueNew York, New YorkThe Entire Second Floor

 

----

 

**TABLE OF CONTENTS**

 
| ARTICLE 1   | RENT                                              |   |
|-------------|---------------------------------------------------|--------|
| ARTICLE 2   | OCCUPANCY AND USE                                 |   |
| ARTICLE 3   | PREPARATION OF THE DEMISED PREMISES               |   |
| ARTICLE 4   | TAX ESCALATION                                    |   |
| ARTICLE 5   | EXPENSE ESCALATION                                |   |
| ARTICLE 6   | INSURANCE                                         |   |
| ARTICLE  7  | ELECTRICITY                                       |   |
| ARTICLE  8  | ALTERATIONS  AND INSTALLATIONS                    |   |
| ARTICLE  9  | REPAIRS  AND MAINTENANCE                          |   |
| ARTICLE  10 | REQUIREMENTS  OF LAW; FIRE INSURANCE              |   |
| ARTICLE  11 | SUBORDINATION,  NOTICE TO LESSORS AND MORTGAGEES  |   |
| ARTICLE  12 | LOSS,  DAMAGE, REIMBURSEMENT, LIABILITY, ETC      |   |
| ARTICLE  13 | DAMAGE  OR DESTRUCTION                            |   |
| ARTICLE  14 | EMINENT  DOMAIN                                   |   |
| ARTICLE  15 | ASSIGNMENT,  SUBLETTING AND MORTGAGING            |   |
| ARTICLE  16 | ACCESS  TO DEMISED PREMISES; CHANGES              |   |
| ARTICLE  17 | CERTIFICATE  OF OCCUPANCY                         |   |
| ARTICLE  18 | BANKRUPTCY                                        |   |
| ARTICLE  19 | DEFAULT                                           |   |
| ARTICLE  20 | REMEDIES  OF LANDLORD; WAIVER OF REDEMPTION       |   |
| ARTICLE  21 | CURING  TENANT’S DEFAULTS; FEES AND EXPENSES |   |
| ARTICLE  22 | NO  REPRESENTATIONS BY LANDLORD                   |   |
| ARTICLE  23 | END  OF TERM                                      |   |
| ARTICLE  24 | QUIET  ENJOYMENT                                  |   |
| ARTICLE  25 | DEFINITIONS                                       |   |
| ARTICLE  26 | ADJACENT  EXCAVATION — SHORING               |   |
| ARTICLE  27 | RULES  AND REGULATIONS                            |   |
| ARTICLE  28 | NO  WAIVER                                        |   |
| ARTICLE  29 | WAIVER  OF TRIAL BY JURY                          |   |
| ARTICLE  30 | INABILITY  TO PERFORM                             |   |

 

i

----

 
| ARTICLE  31                                       | NOTICES                           |   |
|---------------------------------------------------|-----------------------------------|--------|
| ARTICLE  32                                       | SERVICES                          |   |
| ARTICLE  33                                       | ARBITRATION                       |   |
| ARTICLE  34                                       | CONSENTS  AND APPROVALS           |   |
| ARTICLE  35                                       | INDEMNITY                         |   |
| ARTICLE  36                                       | CERTIFICATES                      |   |
| ARTICLE  37                                       | NAME  OF BUILDING                 |   |
| ARTICLE  38                                       | MEMORANDUM  OF LEASE              |   |
| ARTICLE  39                                       | BROKERAGE                         |   |
| ARTICLE  40                                       | INVALIDITY  OF ANY PROVISION      |   |
| ARTICLE  41                                       | MISCELLANEOUS                     |   |
| ARTICLE  42                                       | SECURITY                          |   |
| ARTICLE  43                                       | ROOFTOP  COMMUNICATIONS EQUIPMENT |   |
|                                              |                              |
| Exhibits  ***Delete inapplicable exhibits*** |                              |
|                                              |                              |
| EXHIBIT A Floor Plan                              |                              |
| EXHIBIT B Cleaning Fee Calculation                |                              |
| EXHIBIT C Wage Rate Calculation                   |                              |
| EXHIBIT D Landlord Work                           |                              |
| EXHIBIT E Rules and Regulations                   |                              |
| EXHIBIT F Cleaning Specifications                 |                              |
| EXHIBIT G Form of Letter of Credit                |                              |
| EXHIBIT H Pre-Approved Contractors                |                              |

 

ii

----

 

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

 

W I T N E S S ET H:

 

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

 

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

 

The term of this Lease, for which the demised premisesare hereby leased, shall commence on the date December 1, 2004 (herein calledthe “**Commencement Date**“), and shall endon the fifteenth (15th) anniversary of the Rent Commencement Date (hereincalled the “**Expiration Date**“) or shall endon such earlier date upon which said term may expire or be cancelled orterminated pursuant to any of the terms, provisions, conditions and covenantsof this Lease or pursuant to law. Tenant acknowledges that Landlord hascompleted Landlord’s Work.

 

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

 

ARTICLE 1

 

RENT

 

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

 

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

 

----

 

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

 

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

 

(iii)          One Million FiveHundred Thirty-Six Thousand One Hundred Thirty-Six Dollars ($1,536,136) perannum ($128,011 per month) for the period commencing on the day immediatelyfollowing the last day of the 2nd Rental Period and ending on the ExpirationDate (herein called the “**3rd Rental Period**“).

 

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

 

(c)           The first fullcalendar month’s installment of fixed annual rent due under this Lease shall bepaid by Tenant upon execution of this Lease.

 

1.2.  Tenant shall pay the fixedannual rent and additional rent as above and as hereinafter provided, withoutnotice or demand therefor, without any abatement, setoff or deductionwhatsoever, except as expressly set forth herein.  All sums other than fixed annual rent payableby Tenant under this Lease to Landlord shall be deemed additional rent andpayable within thirty (30) days after demand, unless other payment dates arehereinafter provided.  Fixed annual rentand recurring monthly installments of additional rent shall be paid by wiretransfer of immediately available “**FederalReserve Funds**“ to Landlord or its designee pursuant to thewiring instructions set forth below, which wiring instructions Landlord maychange from time to time upon not less than thirty (30) days prior writtennotice to Tenant.  Non-recurringinstallments of additional rent shall be paid by Tenant to Landlord in lawfulmoney of the United States of America by good and sufficient check (subject tocollection), drawn on Nordea Bank, a bank having an office in New York City, orsuch other bank as Landlord may reasonably approve, at the office of Landlordor such other place in the United States of America as Landlord maydesignate.  As used herein, the term “**Federal Reserve Funds**“ shall mean thereceipt by a bank or banks in the continental United States designated byLandlord of U.S. dollars in form that does not require further clearance, andmay be applied at the direction of Landlord by such recipient bank or banks onthe day of receipt of advice that such funds have been wire transferred.  As of the date hereof, Landlord’s wiringinstructions for the payment of fixed annual rent and recurring installments ofadditional rent are as follows:

 

Name of Institution:             JPMorganTrust Operations

Account Number:                160676.1

 

2

----

 

Account Name:    299Park Avenue Lockbox

ABA Number       021-000-021

 

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

 

1.4.  No payment by Tenant orreceipt or acceptance by Landlord of a lesser amount than the correct fixedannual rent or additional rent shall be deemed to be other than a payment onaccount, nor shall any endorsement or statement on any check or any letteraccompanying any check or payment be deemed an accord and satisfaction, andLandlord may accept such check or payment without prejudice to Landlord’s rightto recover the balance or pursue any other remedy in this Lease or at lawprovided.

 

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

 

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

 

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

 

3

----

 

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

 

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

 

ARTICLE 2

 

OCCUPANCY AND USE

 

2.1.  The demised premises shallbe used solely as and for executive and general offices, and for no otherpurpose.

 

2.2.  If any governmental licenseor permit (other than a Certificate of Occupancy) shall be required for theproper and lawful conduct of Tenant’s business in the demised premises or anypart thereof, Tenant, at its expense, shall duly procure and thereaftermaintain such license or permit and submit the same to Landlord forinspection.  Tenant shall at all timescomply with the terms and conditions of each such license or permit.  Additionally, should Alterations or Tenant’suse of the demised premises for other than executive and general officesrequire any modification or amendment of any Certificate of Occupancy for theBuilding, Tenant shall, at its expense, take all actions reasonably requestedby Landlord in order to procure any such modification or amendment and shallreimburse Landlord (as additional rent) for all reasonable costs and expensesLandlord incurs in effecting said modifications or amendments.  The foregoing provisions are not intended tobe deemed Landlord’s consent to any Alterations or to a use of the demisedpremises not otherwise permitted hereunder nor to require Landlord to effectsuch modifications or amendments of any Certificate of Occupancy.

 

2.3.  Tenant shall not at anytime use or occupy the demised premises or the Building, or suffer or permitanyone to use or occupy the demised premises, or do anything in the demisedpremises or the Building, or suffer or permit anything to be done in, broughtinto or kept on the demised premises, which in any manner (a) violates theCertificate of Occupancy for the demised premises or for the Building as itcurrently exists; (b) causes injury to the demised premises or theBuilding or any equipment, facilities or systems therein; (c) constitutesa violation of the laws and requirements of any public authorities or therequirements of insurance bodies; (d) impairs the character, reputation orappearance of the Building as a first-class office building; (e) impairsthe proper and economic maintenance, operation and repair of the Buildingand/or its equipment, facilities or systems; (f) constitutes a nuisance,public or private; (g) makes unobtainable from reputable insurancecompanies authorized to do business in New York State all-risk propertyinsurance, or liability, elevator, boiler or other insurance at

 

4

----

 

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

 

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

 

ARTICLE 3

 

PREPARATION OF THEDEMISED PREMISES

 

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

 

5

----

 

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

 

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

 

3.2.  (a)  Landlord shall allow Tenant a credit in theamount of ONE MILLION THREE HUNDRED SEVENTY ONE THOUSAND FIVE HUNDRED FIFTY AND00/100 ($1,371,550) DOLLARS (herein called the “**Work Credit**“), which credit may be applied against thecost and expense incurred by Tenant in connection with Tenant’s initialalterations in and to the demised premises (“**Tenant’s Work**“) and the cost and expense of architectural,consulting, engineering fees in connection with Tenant’s Work as well as Tenant’smove into the demised premises.  In theevent that the costs and expenses of Tenant’s Work shall exceed the amount ofthe Work Credit, Tenant shall be entirely responsible for such excess.  Any portion of the Work Credit not used forthe express purposes described in the immediately preceding sentence shall bepaid to Tenant within thirty (30) days following demand made at any time afterTenant has completed Tenant’s Work and begun occupying the demised premises forthe conduct of its business.  Landlordshall pay to Tenant installments of the Work Credit within thirty (30) daysafter Landlord’s receipt of a written request for disbursement together withthe required accompanying documentation.

 

(b)           The Work Creditshall be payable to Tenant in installments as Tenant’s Work progresses, but inno event more frequently than monthly. Prior to the payment of any such installment, Tenant shall deliver toLandlord a written request for disbursement which shall be accompanied by (1)invoices for the portion of Tenant’s Work or other item referenced in suchrequisition, (2) a certificate signed by Tenant’s architect certifying that theportion of Tenant’s Work referenced in said requisition and represented by theaforesaid invoices has been satisfactorily completed substantially inaccordance with Tenant’s final plan, (3) partial lien waivers from the generalcontractor, performing any such work releasing Tenant for liability for thesame.  Reasonably

 

6

----

 

promptly following thecompletion of Tenant’s Work, Tenant shall provide Landlord with (i) acertificate signed by Tenant’s architect certifying that Tenant’s Work has beensatisfactorily completed substantially in accordance with the final plan, (ii)all Building Department sign-offs, inspection certificates and any permitsrequired to be issued by any governmental entities having jurisdictionthereover, and (iii) a final lien waiver from the general contactor performingTenant’s Work.

 

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

 

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

 

3.3.  (a)  As part ofthe performance of Tenant’s Work, Tenant shall perform certain renovation workin the core bathrooms of the demised premises and, in connection therewith,shall bring such core bathrooms of the demised premises into compliance withthe Americans With Disabilities Act (“**Tenant’s Bathroom Work**”).  In addition to the Work Credit, Landlordshall allow Tenant a credit of One Hundred Fifty Thousand and 00/100 ($150,000.00)DOLLARS (herein called the “**Bathroom WorkCredit**“), which credit shall be applied solely against the costand expense incurred by Tenant for the actual construction of Tenant’s BathroomWork, including architectural, consulting, engineering fees, and for no otherpurposes.  In the event that the costsand expenses of Tenant’s Bathroom Work shall exceed the amount of the BathroomWork Credit, Tenant shall be entirely responsible for such excess.  If upon completion of Tenant’s Bathroom Work,and complete payment by Tenant of all costs and expenses thereof there shallremain unused portions of the Bathroom Work Credit, then, provided Tenant isnot in default under any of the terms, covenants or conditions of this Lease onthe part of Tenant to be observed or performed beyond applicable grace and cureperiods, the amount of such unused Bathroom Work Credit shall be applied as arent credit against the next accruing installments of fixed annual rent payableby Tenant under this Lease.  Landlordshall pay to Tenant installments of the Bathroom Work Credit within thirty (30)days after Landlord’s receipt of a written request for disbursement togetherwith the required accompanying documentation.

 

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

 

7

----

 

(3) partial lienwaivers from the contractor who shall have performed work which was the subjectof the immediately preceding distribution by Landlord to Tenant of a portion ofthe Bathroom Work Credit.  Reasonablypromptly following the completion of Tenant’s Bathroom Work, Tenant shallprovide Landlord with (i) a certificate signed by Tenant’s architectcertifying that Tenant’s Bathroom Work has been satisfactorily completedsubstantially in accordance with the final plan, (ii) all BuildingDepartment sign-offs, inspection certificates and any permits required to beissued by any governmental entities having jurisdiction thereover, and(iii) a final lien waiver from the contractor performing Tenant’s BathroomWork.

 

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

 

(d)           During theperformance of Landlord’s Work and Tenant’s Work, Landlord at its expense shallexpeditiously demolish the existing women’s room area and slab patch the areaprior to the commencement of Tenant’s Bathroom Work.  Landlord shall use its best efforts toaccomplish the foregoing by November 30, 2004.  Such demolition and patching shall not bedeemed Landlord’s Work.

 

3.4.  Notwithstanding anything tothe contrary contained in this Lease, in connection with the performance ofTenant’s Work and Tenant’s Bathroom Work by Plaza Construction Corp., neitherTenant nor Tenant’s contractors or subcontractors shall be charged for freightelevator usage in connection with the performance of Tenant’s Work and Tenant’sBathroom Work, or during Tenant’s initial move-in, provided, (i) such freeusage of the freight elevator shall not exceed (a) twelve (12) consecutivehours of usage on business days (eight (8) of such twelve (12) hours occurringbetween the hours of 8:00 a.m. and 6:00 p.m.) and (b) eight (8)consecutive hours on Saturdays, and (ii) (a) Tenant shall be entitledto free usage of the freight elevators in order to meet Tenant’s reasonableneeds for freight elevator usage on Sundays in connection with Tenant’s Workand Tenant’s Bathroom Work and (b) Tenant shall be entitled to unlimitedfree usage of the freight elevators on Sundays in connection with Tenant’sinitial move-in.  Landlord hereby agreesthat during such time as Tenant shall be entitled to free usage of the freightelevators as hereinbefore provided, Tenant shall not be charged for Landlord’scost of providing an elevator operator and/or security guard in connectiontherewith.

 

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

 

8

----

 

ARTICLE 4

 

TAX ESCALATION

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

9

----

 

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

 

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

 

4.2.  (a)  If the real estate taxes paid for anycomparative year shall exceed the amount of the real estate taxes payableduring the base tax year, commencing after the Rent Abatement Period Tenantshall pay to Landlord, as additional rent for such comparative year, an amountequal to The Percentage of the excess. Before or after the start of each comparative year, Landlord shallfurnish to Tenant a statement of the real estate taxes payable for suchcomparative year, and a statement of the real estate taxes payable during thebase tax year.  If the real estate taxespayable for such comparative year exceed the real estate taxes payable duringthe base tax year, additional rent for such comparative year, in an amountequal to The Percentage of the excess, shall be due from Tenant to Landlord,and such additional rent shall be payable by Tenant to Landlord asfollows:  after Landlord has furnishedTenant with the aforesaid statement, Tenant shall pay Landlord with the monthlyinstallments of rent due on June 1 and December 1 of such comparative year anamount equal to one-half (1/2) of the total sum of additional rent due fromTenant to Landlord pursuant to such statement for such comparative year, untilsuch time as a new statement for a subsequent comparative year shall becomeeffective.  If there shall be anyincrease in the real estate taxes for any comparative year, whether during orafter such comparative year, or if there shall be any decrease in the realestate taxes for any comparative year, the tax escalation payment for suchcomparative year shall be appropriately adjusted and paid or refunded, as thecase may be, in accordance herewith; in no event, however, shall real estatetaxes be deemed to have been reduced below the real estate taxes payable duringthe base tax year.  If during the term ofthis Lease, real estate taxes are required to be paid (either to theappropriate taxing authorities or as tax escrow payments to a SuperiorMortgagee) in full or in monthly, quarterly, or other installments, on anyother date or dates than as presently required, then at Landlord’s option,Tenant’s tax escalation payments shall be correspondingly accelerated orrevised so that said Tenant’s tax escalation payments are due on the datepayments are due to the taxing authorities or such Superior Mortgagee.  If a statement is furnished to Tenant afterthe commencement of the comparative year in respect of which such statement isrendered, Tenant shall, within thirty (30) days thereafter pay to Landlord anamount equal to those installments or the total tax escalation payable asprovided in this Section 4.2(a) during the period prior to the first dayof the month next succeeding the month in which the applicable statement hasbeen furnished.

 

10

----

 

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

 

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

 

(d)           The statements ofthe real estate taxes to be furnished by Landlord as provided above shallconstitute a final determination as between Landlord and Tenant of the realestate taxes for the periods represented thereby, unless Tenant within onehundred eighty (180) days after they are furnished shall in writing challengetheir accuracy or their appropriateness. If Tenant shall dispute said statements, then pending the resolution ofsuch dispute Tenant shall pay the additional rent to Landlord in accordancewith the statements furnished by Landlord.

 

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

 

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

 

11

----

 

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

 

(g)           Landlord’s andTenant’s obligation to make the adjustments referred to in Sections 4.2(b) and4.2(f) hereof shall survive any expiration or sooner termination of this Lease.

 

(h)           Nothing contained inthis Lease shall obligate Landlord to bring any application or proceedingseeking a reduction in real estate taxes or assessed valuation.  However, Landlord will abide prudent andcustomary practice in seeking a reduction in real estate taxes and assessedvaluation.  Tenant, for itself and itsimmediate and remote subtenants and successors in interest hereunder, herebywaives, to the extent permitted by law, any right Tenant may now or in thefuture have to protest or contest any real estate taxes or to bring anyapplication or proceeding seeking a reduction in real estate taxes or assessedvaluation or otherwise challenging the determination thereof.

 

(i)            The benefit of anydiscount for the early payment or prepayment of real estate taxes shall accruesolely to the benefit of Landlord and such discount shall not be subtractedfrom real estate taxes.

 

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

 

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

 

ARTICLE 5

 

EXPENSE ESCALATION

 

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

 

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

 

12

----

 

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

 

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

 

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

 

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

 

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

 

13

----

 

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

 

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

 

The term “**Wage Rate**“shall mean the minimum regular hourly wage rate (including fringe benefits) foremployment of porters in Class A office buildings from time to time establishedby Agreement between The Realty Advisory Board on Labor Relations, Inc. andLocal 32B-32J of the Building Service Employees International Union AFL-CIO(the “**Union**“) or by the successors toeither or both of them.  If the Union orits successor shall cease to exist or function, increases in fees for cleaningfor purposes of computing Expenses shall be based upon Landlord’s reasonabledetermination of the then-standard practice for escalating cleaning fee chargesin first-class office buildings in the Borough of Manhattan that are comparableto the Building, provided that if there is more than one standard practice,Landlord shall select the standard practice that will put the parties, asclosely as possible, in the same economic position with respect to fees forcleaning included in Expenses that the parties are in on the date of thisLease.  The manner of calculation used tocompute the Wage Rate for the Base Cleaning Year, and which will be used tocompute the Wage Rate for each Comparative Year thereafter, is shown on ExhibitC annexed hereto.

 

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

 

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

 

14

----

 

(2)           salaries, fringebenefits and other compensation for personnel above the grade of buildingmanager;

 

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

 

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

 

(5)           advertising,entertaining and promotional expenditures;

 

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

 

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

 

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

 

(9)           depreciation, exceptas otherwise expressly provided herein;

 

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

 

15

----

 

or legal or accountingfees in connection with tax returns, tax reporting or accounting at thelandlord entity level;

 

(11)         any expense to theextent of which Landlord is compensated by insurance and any deductible amountthereunder;

 

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

 

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

 

(14)         costs incurred withrespect to removal or encapsulation or other treatment of hazardous material asdefined under present or future state, federal or local laws relating to theenvironment but excepting costs of normal and customary testing and monitoring;

 

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

 

(16)         any cost representingan amount paid to an affiliate of Landlord to the extent the same is in excessof the amount which would reasonably have been paid in the absence of suchrelationship;

 

(17)         costs otherwiseincludable in Expenses to the extent reimbursed to Landlord directly by Tenantor other tenants (other than through provisions similar to this Article 5);

 

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

 

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

 

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

 

16

----

 

(21)         costs relating towithdrawal liability or unfunded pension liability under the Multi-EmployerPension Plan Act or similar laws;

 

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

 

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

 

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

 

(25)         that portion of costsincurred in connection with the Building and other properties that arereasonably attributable to such other properties;

 

(26)         real estate, franchise,transfer gains, estate, inheritance, transfer, corporate, unincorporatedbusiness, succession, gift, capital stock or income taxes imposed uponLandlord;

 

(27)         any compensation paidto clerks, attendants or other persons in commercial concessions operated byLandlord;

 

(28)         any interest orpenalty charges incurred by Landlord due to the negligent or willful violationof any Legal Requirement by Landlord;

 

(29)         lease takeover costsand costs incurred by Landlord in connection with enforcement of other leasesor subleases in the Building;

 

(30)         mail center servicesfor other tenants in the Building if such services are not made available toTenant;

 

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

 

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

 

17

----

 

be based on no more than1,500 rentable square feet of space as if same were located in the basement ofthe Building), and all Building office expenses, such as telephone, utility,stationery and similar expenses incurred in connection therewith;

 

(33)         dues and fees fortrade and industry associations and costs of their related activities to theextent such dues, fees and costs exceed those customarily incurred by an ownerof an office building that is similarly situated;

 

(34)         expenses for repairsand maintenance which are covered by warranties or guarantees (except to theextent that Landlord, acting diligently, is unable to enforce such warrantiesor guarantees);

 

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

 

(36)         the cost of electricenergy furnished directly by Landlord to Tenant and other tenants in theBuilding; and

 

(37)         Building reserves.

 

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

 

(e)           If during all orpart of fiscal year December 1, 2004 through November 30, 2005 or anycomparative year, Landlord shall not furnish any particular item(s) of work orservice (which would constitute Expenses hereunder) to portions of theBuilding, due to the fact that such portions are not occupied or leased, orbecause such item of work or service is not required or desired by the tenantof such portion, or such tenant is itself obtaining and providing such item ofwork or service, then, for the purposes of computing the additional rentpayable hereunder, the amount of Expenses for such item for such period shallbe increased by an amount equal to the additional Expenses which wouldreasonably have been incurred during such period by Landlord if it had at itsown expense furnished such item of work or services to such portion of theBuilding.

 

18

----

 

5.2.  (a)  If Expenses for any comparative year shall begreater than the Expense Base Factor, commencing after the Rent AbatementPeriod, Tenant shall pay to Landlord, as additional rent for such comparativeyear in the manner hereinafter provided, an amount equal to The Percentage ofthe excess of the Expenses for such comparative year over the Expense BaseFactor (such amount being herein called the “**ExpensePayment**“).

 

Landlord may furnish to Tenant, prior to thecommencement of each comparative year, a written statement setting forth inreasonable detail Landlord’s reasonable estimate of the Expense Payment forsuch comparative year.  Tenant shall payto Landlord on the first day of each month during the comparative year in whichthe Expense Payment will be due, an amount equal to one-twelfth (1/12th) ofLandlord’s reasonable estimate of the Expense Payment for such comparativeyear.  If, however, Landlord shall notfurnish any such estimate for a comparative year or if Landlord shall furnishany such estimate for a comparative year subsequent to the commencementthereof, then (i) until the first day of the month following the month inwhich such estimate is furnished to Tenant, Tenant shall pay to Landlord on thefirst day of each month an amount equal to the monthly sum payable by Tenant toLandlord under this Article 5 in respect of the last month of thepreceding comparative year; (ii) after such estimate is furnished to Tenant,Landlord shall give notice to Tenant stating whether the installments of theExpense Payment previously made for such comparative year were greater or lessthan the installments of the Expense Payment to be made for the comparativeyear in which the Expense Payment will be due in accordance with such estimate,and (A) if there shall be a deficiency, Tenant shall pay the amountthereof within thirty (30) days after demand therefor, or (B) if thereshall have been an overpayment, Landlord shall concurrently with the deliveryof such notice refund to Tenant the amount thereof; and (iii) on the firstday of the month following the month in which such estimate is furnished toTenant and monthly thereafter throughout the remainder of such comparative yearTenant shall pay to Landlord an amount equal to one-twelfth (1/12th) of theExpense Payment shown on such estimate. Landlord may, during each comparative year, furnish to Tenant a revisedstatement of Landlord’s reasonable estimate of the Expense Payment for suchcomparative year, and in such case, the Expense Payment for such comparativeyear shall be adjusted and paid or refunded or credited, as the case may be,substantially in the same manner as provided in the preceding sentence.

 

(b)           Landlord shallfurnish to Tenant a statement setting forth the Expense Payment payable byTenant (a “**Landlord’s Statement**“)for each comparative year (and shall endeavor to do so within one hundredeighty (180) days after the end of each comparative year).  Such statement shall set forth in reasonabledetail the Expenses for such comparative year. If the Landlord’s Statement shall show that the sums paid by Tenant, ifany, under Section 5.2(a) hereof exceeded the Expense Payment to be paidby Tenant for the comparative year for which such Landlord’s Statement isfurnished, Landlord’s Statement shall be sent to Tenant together with a refundto Tenant of the

 

19

----

 

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

 

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

 

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

 

20

----

 

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

 

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

 

21

----

 

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

 

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

 

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

 

ARTICLE 6

 

INSURANCE

 

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

 

22

----

 

progress, the insurancespecified in Section 8.5 hereof. The limits of such insurance shall not limit the liability ofTenant.  All such policies shall beissued by companies of recognized responsibility licensed to do business in NewYork State and rated by Best’s Insurance Reports or any successor publicationof comparable standing and carrying a rating of A-VIII or better or the thenequivalent of such rating.  Tenant herebyagrees to furnish Landlord with certificates evidencing the maintenance of suchinsurance and evidence that the premiums therefore have been paid prior to theCommencement Date.  Tenant shall alsofurnish Landlord with renewals thereof and evidence of the payment of thepremiums therefor prior to the expiration of any such policy or policies.  All insurance certificates Tenant delivers toLandlord shall provide that the insurer shall endeavor to give Landlord atleast thirty (30) days’ (ten (10) days in the case of non-payment of premiums) priorwritten notice of the cancellation or alteration of the policies evidenced bysuch certificates.  In all events, Tenantshall give notice to Landlord of any cancellation or alteration of any suchpolicy or policies within five (5) business days after receipt by Tenant ofnotice thereof.  The parties shallcooperate with each other in connection with the collection of any insurancemonies that may be due in the event of loss and each party shall execute anddeliver to the other such proofs of loss and other instruments which may bereasonably required to recover any such insurance monies.

 

6.2.  Landlord may from time totime require that the amount of the insurance to be maintained by Tenant under Section 6.1hereof be reasonably increased, so that the amount thereof adequately protectsLandlord’s interest;  provided, however,that the amount to which such insurance requirements may be increased shall notexceed an amount then being required by landlords of comparable first-classoffice buildings in midtown Manhattan.

 

ARTICLE 7

 

ELECTRICITY

 

7.1.  Landlord shall furnishelectric energy for the demised premises through presently installed electricalfacilities.  Tenant covenants and agreesthat in no event shall its use of electric current in the demised premisesexceed six (6) watts demand load per useable square foot per floor, exclusive ofheating, ventilation and air conditioning, together with any increased demandload as may be made available pursuant to a written agreement between Landlordand Tenant in accordance with the provisions hereof after the installation byLandlord, at Tenant’s sole cost and expense, of such additional risers, feedersand other equipment as may be required in connection with such additionaldemand load.  Landlord shall notunreasonably withhold its consent to Tenant’s use of electric current in excessof six (6) watts demand load per usable square foot and the installation of anyadditional risers, feeders or other proper or necessary equipment required inconnection therewith if:  (i) poweris available in the Building for use by Tenant and (ii) the installationof such additional risers, feeders or other proper or necessary equipment willnot cause permanent damage or injury to the Building or the

 

23

----

 

demised premises, orcause or create a dangerous or hazardous condition or entail excessive orunreasonable alterations.  Landlordrepresents that electric current to the demised premises shall be not less thansix (6) watts demand load per usable square foot (exclusive of HVAC).

 

7.2.  (a)  Landlord shall, at or about the date Tenantoccupies the demised premises for the conduct of its business (and at anysubsequent time that additional demand load is provided to the demised premisesin accordance with the provisions of Section 7.1 hereof), at Landlord’sexpense, install a sufficient number of check meters and all of the equipmentancillary thereto on each floor of the demised premises (herein called the “**Check Meters**“) to (i) measureand record and provide printouts of the measurement of the demand andconsumption in the demised premises of electric current during each monthoccurring during the term of this Lease and (ii) operate such meters toascertain Tenant’s consumption of kilowatt hours (herein called “**KWH**“), by time of day, ifapplicable, and demand in kilowatts (herein called “**KW**“)for each month.  The Check Meters shallbe read and billed conjunctively. Landlord, at Landlord’s expense, shall maintain and keep the CheckMeters in good repair (including replacement, if necessary), working order andcondition during the term of this Lease. All costs and expenses of maintaining and repairing the Check Metersshall be the responsibility of Landlord. During any period that a Check Meter is non-operational the ElectricityAdditional Rent attributable to such Check Meter(s) shall be an amountreasonably estimated based upon the historical readings previously orthereafter received by Landlord from such non-operational Check Meter(s).

 

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

 

24

----

 

7.3.  Landlord reserves the rightto discontinue furnishing electric energy to Tenant at any time upon sixty (60)days’ written notice to Tenant, and from and after the effective date of suchtermination, Landlord shall no longer be obligated to furnish Tenant withelectric energy; provided, however, that such termination date may be extendedfor a time reasonably necessary for Tenant to make arrangements to obtainelectric service directly from the public utility company and/or other serviceprovider servicing the Building.  IfLandlord exercises such right of termination, this Lease shall remainunaffected thereby and shall continue in full force and effect; and thereafterTenant shall diligently arrange to obtain electric service directly from thepublic utility company and/or other service provider servicing the Building,and may utilize the then existing electric feeders, risers and wiring servingthe demised premises to the extent available and safely capable of being usedfor such purpose and only to the extent of Tenant’s then authorized demandload.  Landlord shall be obligated to payno part of any cost required for Tenant’s direct electric service if (a) Landlordis compelled to discontinue furnishing electricity to Tenant and UBS by thepublic utility company and/or other service provider or pursuant to law unlessLandlord is required to pay such cost on behalf of or for the benefit of UBSpursuant to its lease, or (b) such discontinuance arises out of thenegligence or willful misconduct of Tenant. Otherwise, all costs associated with Tenant obtaining direct service tothe demised premises shall be borne by Landlord.  Commencing with the date when Tenant receivessuch direct service, and as long as Tenant shall continue to receive suchservice, the Electricity Additional Rent and any adjustments made theretopursuant to this Article 7 shall no longer be due and payable by Tenant.

 

7.4.  Save for Landlord’snegligence or willful misconduct, Landlord shall not in any way be liable orresponsible to Tenant for any loss, damage or expense which Tenant may sustainor incur if (a) the supply of electric energy to the demised premises istemporarily interrupted or (b) the quantity or character of electricservice is changed or is no longer available or suitable for Tenant’srequirements.

 

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

 

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

 

ARTICLE 8

 

ALTERATIONS ANDINSTALLATIONS

 

8.1.  Tenant shall make noalterations, installations, additions, improvements or changes (herein called “**Alterations**“) in or to the demised premises

 

25

----

 

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

 

8.2.  (a)  Before proceeding with any Alteration inrespect of which Landlord’s approval is required hereunder, Tenant shall submitto Landlord, for Landlord’s approval, plans and specifications for the work tobe done, and Tenant shall not proceed with such work until it obtains Landlord’swritten approval of such plans and specifications, which approval shall not beunreasonably withheld, conditional or delayed (except with respect to MaterialAlterations).  Landlord agrees to respondto Tenant’s written request for approval of plans and specifications for anyAlterations within ten (10) days after delivery thereof to Landlord.  In addition, Landlord agrees to respond toany resubmission of any plans and specifications for any Alterations withinfive (5) days after written resubmission, unless substantial revisions arerequired to such plans and specifications, in which event Landlord shallrespond to Tenant within ten (10) days thereafter.  If Landlord fails to approve or disapprovethe plans and specifications proposed by Tenant within the applicable reviewperiod set forth above, Tenant shall have the right to provide Landlord with a secondrequest that specifically identifies the applicable plans and specificationsand contains the following statement in bold capital letters:  **IF LANDLORD FAILS TORESPOND WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE, THEN TENANTSHALL BE ENTITLED TO COMMENCE CONSTRUCTION IN ACCORDANCE WITH THE PLANS ANDSPECIFICATIONS PREVIOUSLY SUBMITTED TO LANDLORD AND TO WHICH LANDLORD HASFAILED TO TIMELY RESPOND.**  IfLandlord fails to respond to a second request within five (5) business daysafter receipt by Landlord, the plans and specifications or revisions as towhich the second request is submitted shall be deemed approved by Landlord, andTenant may commence construction of the Alterations or portion thereof to whichthe plans and specifications relate, provided that the plans and specificationshave been appropriately filed in accordance with applicable Legal Requirements,all permits and approvals required to be issued by any governmental authorityshall have been duly issued, and Tenant shall otherwise have complied with allprovisions of this Lease applicable to Alterations.

 

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

 

26

----

 

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

 

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

 

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

 

8.4.  Tenant, at its expense,shall obtain (and furnish true and complete copies to Landlord of) allnecessary governmental permits and certificates for the commencement andprosecution of Alterations and for final approval thereof upon completion, andshall cause Alterations to be performed in compliance therewith, with allapplicable laws and requirements of public authorities, with all applicablerequirements of insurance bodies and in all material respects with the plansand specifications approved by Landlord. Alterations shall be diligently performed in a good and workerlikemanner, using new materials and equipment at least equal in quality and classto the then standards for the Building established by Landlord.  Alterations shall be performed in such manneras not to unreasonably interfere with or delay and as not to impose anyadditional expense upon Landlord in the maintenance, repair or operation of theBuilding.  Throughout the performance of substantialAlterations, Tenant, at its expense, shall carry, or cause to be carried,worker’s compensation insurance in statutory limits, all risk “Builders Risk”insurance and general liability insurance, with completed operationendorsement, for any occurrence in or about the building project, under whichLandlord and its agent and any Superior Lessor and Superior Mortgagee whosename and address shall previously have been furnished to Tenant shall be namedas parties insured, in such limits as Landlord may reasonably require, withinsurers rated by Best’s Insurance Reports of A-VIII or better.  Tenant shall furnish Landlord with certificatesof such insurance at or before the commencement of Alterations and, on request,at reasonable intervals thereafter during the continuance of Alterations.

 

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

 

27

----

 

Landlord agrees that itshall not discriminate as against Tenant in enforcing the foregoing prohibitionagainst interfering with the business of Landlord or other tenants in theBuilding.

 

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

 

8.7.  Tenant will promptly uponthe completion of an Alteration deliver to Landlord “as-built” or marked drawingsof any Alterations Tenant has performed or caused to be performed in thedemised premises.

 

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

 

8.9.  Tenant shall keep recordsof Tenant’s Alterations costing in excess of $50,000 and of the cost thereof (assaid $50,000 is hereafter increased by the CPI).  Tenant shall, within forty-five (45) daysafter demand by Landlord, furnish to Landlord copies of such records and costif Landlord shall require same in connection with any proceeding to reduce theassessed valuation of the building project, or in connection with anyproceeding instituted pursuant to Article 10 hereof or for any otherreasonable purpose.

 

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

 

28

----

 

earlier date upon whichthe term of this Lease shall expire, Landlord, subject to the provisions of thelast sentence of this Section 8.10, may require Tenant to remove anykitchens, cafeterias, vaults, private restrooms, security areas, staircases(other than any staircases existing as of the date of this Lease), raised orabove-slab reinforced flooring, slab cuts, generators, uninterrupted powersupply systems and preaction fire alarm systems and associated equipment, andantennas, satellite dishes and microwave communications facilities andassociated equipment, any auditorium and related audio/ visual and closedcircuit television facilities or other items which are unusually difficult orexpensive to remove (herein collectively called “**SpecialtyAlterations**“).  In suchevent Tenant shall remove the foregoing from the demised premises and theBuilding prior to the expiration of this Lease at Tenant’s expense.  Upon such removal Tenant shall immediatelyand at its expense, repair and restore the affected portion(s) of the demisedpremises and the Building to the condition existing prior to installation andrepair any damage to the affected portion(s) of the demised premises or theBuilding due to such removal. Notwithstanding anything to the contrary contained herein: (i) Tenantmay include with any initial request for Landlord’s approval of an Alterationgiven in accordance with the provisions of Section 8.2 hereof a writtenrequest that Landlord designate any Alterations that constitute SpecialtyAlterations and which Landlord will require Tenant to remove pursuant to theprovisions of this Section 8.10 and (ii) Landlord shall not have theright to require Tenant to remove any Specialty Alterations not so designatedby Landlord at such time.  Any suchrequest made by Tenant must specifically refer to the provisions of this Section 8.10and the consequences of Landlord’s failure to designate any such Alterations asSpecialty Alterations which will be required to be removed by Tenant.

 

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

 

29

----

 

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

 

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

 

ARTICLE 9

 

REPAIRS AND MAINTENANCE

 

9.1.  Subject to the provisionsof Section 12.6(a) Tenant shall, at its expense, throughout the term ofthis Lease, take good care of and maintain in good order and condition thedemised premises and the fixtures and improvements therein, including, withoutlimitation, Tenant’s Property, except as otherwise expressly provided in thelast sentence of this Section 9.1. Tenant shall be responsible for all repairs, interior and exterior,structural and non-structural, ordinary and extraordinary, foreseen orunforeseen, in and to the demised premises, and shall be responsible for thecost of all repairs, interior and exterior, structural and non-structural,ordinary and extraordinary, foreseen or unforeseen, in and to the Building andthe facilities and systems thereof, the need for any of the foregoing whicharises out of (a) the performance by Tenant or existence of Alterationsmade by Tenant, (b) the installation, use or operation by Tenant of theproperty which is deemed Landlord’s, pursuant to Section 8.10 hereof andTenant’s Property, (c) the moving by Tenant of the property which isdeemed Landlord’s pursuant to Section 8.10 hereof and Tenant’s Property inor out of the Building, (d) the neglect of Tenant or any of its subtenantsor its or their employees, agents, contractors or invitees or (e) designflaws in any of Tenant’s plans and specifications regardless of the fact thatsuch Tenant’s plans may have been approved by Landlord.  Tenant, at its expense, shall promptlyreplace all scratched, damaged or broken doors and glass (but not the exteriorwindows) in and about the demised premises, including, without limitation,entrance doors and shall be responsible for all repairs, maintenance andreplacement of wall and floor coverings in the demised premises and for all therepair, maintenance and replacement of all horizontal portions of the systemsand facilities of the Building within and exclusively serving the demisedpremises (save for the heating system), including,

 

30

----

 

without limitation, thesanitary and electrical fixtures and equipment therein.  All repairs in or to the demised premises forwhich Tenant is responsible shall be promptly performed by Tenant in a mannerwhich will not interfere with the use of the Building by other occupants;provided, however, any repairs in and to the Building and the facilities andsystems thereof for which Tenant is responsible shall be performed by Landlordat Tenant’s expense which expense shall be commercially reasonable.  The exterior walls of the Building, theportions of any window sills outside the windows, and the windows are not partof the premises demised by this Lease and Landlord reserves all rights to suchparts of the Building.  Notwithstandingthe foregoing provisions of this Section 9.1, Tenant shall not beresponsible for repairs to or replacements of any structural elements of theBuilding, except to the extent the need for such repairs or replacements arisesfrom the matters set forth in clauses (a), (b), (c), (d) or (e) of thesecond sentence of this Section 9.1 or from the negligence or willfulmisconduct of Tenant, its employees, agents or contractors.

 

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

 

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

 

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

 

9.5.  Except as otherwise expresslyprovided in this Lease, there shall be no allowance to Tenant for a diminutionof rental value and no liability on the part of Landlord by reason ofinconvenience, annoyance or injury to business arising from the making of anyrepairs, alterations, additions or improvements in or to any portion of theBuilding or the demised premises or in or to fixtures, appurtenances orequipment thereof.  Landlord shallexercise reasonable diligence so as to minimize any interference with Tenant’sbusiness operations.

 

31

----

 

ARTICLE 10

 

REQUIREMENTS OF LAW; FIREINSURANCE

 

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

 

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

 

32

----

 

10.3.  Except to the extent thatTenant is required by this Lease to comply therewith, Landlord shall complywith all present and future laws and requirements of public authorities asshall affect:

 

(1)           thedemised premises,

 

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

 

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

 

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

 

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

 

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

 

33

----

 

ARTICLE 11

 

SUBORDINATION, NOTICE TOLESSORS AND MORTGAGEES

 

11.1.  This Lease, and all rightsof Tenant hereunder, are and shall be subject and subordinate in all respectsto all ground leases, overriding leases and underlying leases of the Landand/or the Building and/or that portion of the Building of which the demisedpremises are a part now or hereafter existing and to all mortgages which maynow or hereafter affect the Land and/or the Building and/or that portion of theBuilding of which the demised premises are a part and/or any of such leases,whether or not such mortgages shall also cover other lands and/or buildingsand/or leases, to each and every advance made or hereafter to be made undersuch mortgages, and to all renewals, modifications, replacements and extensionsof such leases and such mortgages and spreaders and consolidations of suchmortgages.  This Section 11.1 shallbe self-operative and no further instrument of subordination shall berequired.  In confirmation of suchsubordination, Tenant shall promptly execute, acknowledge and deliver anyinstrument that Landlord, the lessor of any such lease or the holder of anysuch mortgage or any of their respective successors in interest may reasonablyrequest to evidence such subordination. The leases to which this Lease is, at the time referred to, subject andsubordinate pursuant to this Article are herein sometimes called “**Superior Leases**“ and the mortgagesto which this Lease is, at the time referred to, subject and subordinate areherein sometimes called “**Superior Mortgages**“and the lessor of a Superior Lease or its successor in interest, at the timereferred to, is sometimes herein called a “**SuperiorL****essor**,” andthe holder of a Superior Mortgage or its successor in interest, at the timereferred to, is sometimes herein called a “**SuperiorMortgagee**.”  Landlordrepresents that it is the owner of the demised premises, that it has authorityto execute and deliver this Lease, and that there are currently no SuperiorLeases that if terminated would cause this Lease to be terminated.

 

11.2.  In the event of any act oromission of Landlord which would give Tenant the right, immediately or afterlapse of a period of time, to cancel or terminate this Lease, or to claim apartial or total eviction, Tenant shall not exercise such right (i) untilit has given written notice of such act or omission to Landlord and eachSuperior Mortgagee and each Superior Lessor whose name and address shallpreviously have been furnished to Tenant in writing, and (ii) unless suchact or omission shall be one which is not capable of being remedied by Landlordor such Superior Mortgagee or Superior Lessor within a reasonable period oftime, until a reasonable period for remedying such act or omission shall haveelapsed following the giving of such notice and following the time when suchSuperior Mortgagee or Superior Lessor shall have become entitled under suchSuperior Mortgage or Superior Lease, as the case may be, to remedy the same orseek appointment of a receiver (which reasonable period shall in no event beless than the period to which Landlord would be entitled under this Lease aftersimilar notice, to effect such remedy), provided such Superior Mortgagee orSuperior Lessor shall with due

 

34

----

 

diligence give Tenantwritten notice of its intention to, and commence and continue to, remedy suchact or omission or seek appointment of a receiver.

 

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

 

(a)           liable for anyprevious act or omission of Landlord (or its predecessors in interest) unlesssame is continuing;

 

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

 

(c)           subject to anycredits, offsets, claims, counterclaims, demands or defenses which Tenant mayhave against Landlord (or its predecessors in interest);

 

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

 

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

 

(f)            required to accountfor any security deposit other than any security deposit actually delivered tothe Successor Landlord;

 

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

 

(h)           bound by anymodification of this Lease, including, without limitation, any modificationwhich reduces the fixed annual rent or additional rent or other charges payableunder this Lease, or shortens the term thereof, or otherwise

 

35

----

 

materially adverselyaffects the rights of the lessor thereunder, made without the written consentof the Successor Landlord; or

 

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

 

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

 

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

 

ARTICLE 12

 

LOSS, DAMAGE,REIMBURSEMENT, LIABILITY, ETC.

 

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

 

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

 

36

----

 

any time any window ofthe demised premises is broken, or temporarily closed, darkened or obstructedfor any reason whatsoever and Tenant shall not be entitled to any compensationtherefor or abatement of rent or to any release from any of Tenant’sobligations under this Lease, nor shall the same constitute an eviction.  Landlord shall diligently seek to minimizethe duration of any closing, darkening or obstruction.

 

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

 

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

 

12.5.  Tenant agrees to looksolely to Landlord’s estate and interest in the Land and Building, or of theLand and Building and any insurance proceeds or condemnation awards, and thedemised premises, for the satisfaction of any right or remedy of Tenant for thecollection of a judgment (or other judicial process) requiring the payment ofmoney by Landlord, in the event of any liability by Landlord, and no otherproperty or assets of Landlord (or the partners, members, directors, officers,shareholders, principals, agents, servants or employees thereof) shall besubject to levy, execution, attachment, or other enforcement procedure for thesatisfaction of Tenant’s remedies under or with respect to this Lease, therelationship of Landlord and Tenant hereunder, or Tenant’s use and occupancy ofthe demised premises, or any other liability of Landlord to Tenant.

 

12.6.  (a)  Landlord agrees that, if obtainable at noadditional cost, it will include in its fire insurance policies appropriateclauses pursuant to which the insurance companies (i) waive all right ofsubrogation against Tenant with respect to losses payable under such policiesand/or (ii) agree that such policies shall not be invalidated should the

 

37

----

 

insured waive in writingprior to a loss any or all right of recovery against any party for lossescovered by such policies; provided, however, should any additional premium beexacted for any such clause or clauses, Landlord shall be released from theobligation hereby imposed unless Tenant shall agree to pay such additionalpremium.

 

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

 

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

 

(d)           Landlord and Tenanthereby agree to advise the other promptly if the clauses to be included intheir respective insurance policies pursuant to Sections 12.6(a) and (b) hereofcannot be obtained.  Landlord and Tenanthereby also agree to notify the other promptly of any cancellation or change ofthe terms of any such policy which would affect such clauses.

 

12.7.  Except as otherwiseexpressly provided in this Lease, Landlord and Tenant each hereby expresslywaives the right to any consequential or punitive damages awarded in or as theresult of any proceeding alleging the failure of Landlord or Tenant, as thecase may be, to observe and perform any of the covenants and conditionscontained in this Lease or otherwise to be performed by Landlord or Tenant,respectively.

 

38

----

 

ARTICLE 13

 

DAMAGE OR DESTRUCTION

 

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

 

(b)           Tenant shall permitLandlord access to the demised premises for the purpose of performing the Landlord’sRestoration Work and any restoration work to the Building which is not theresponsibility of Tenant hereunder.  Ifrequired by Landlord in connection with the performance of the Landlord’sRestoration Work, Tenant shall promptly remove from the demised premises all orsuch items of Tenant’s Property as Landlord may require by written notice (hereincalled “**Tenant’s Property RemovalObligation**“).  In theevent that Tenant fails to comply with Tenant’s Property Removal Obligationwithin twenty (20) business days after the giving of such written notice byLandlord, Landlord shall have the right to remove and store such Tenant’sProperty at Tenant’s sole cost and expense and with no liability to Landlord.Tenant shall be solely responsible for arranging for any visits to the demisedpremises by Tenant’s insurance adjuster that may be desired by Tenant prior tothe performance by Landlord or Tenant of Tenant’s Property Removal Obligationor the performance by Landlord of Landlord’s Restoration Work and Landlordshall be under no obligation to delay the performance of same, nor shallLandlord have any liability to Tenant, in the event that Tenant fails to do so.

 

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

 

39

----

 

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

 

13.3.  (a)  If the Building shall be totally damaged ordestroyed by fire or other casualty, or if the Building shall be so damaged ordestroyed by fire or other casualty (whether or not the demised premises aredamaged or destroyed) that its repair or restoration requires the expenditureof more than thirty (30%) percent of the full insurable value of the Buildingimmediately prior to the casualty or if the repair of the demised premises willrequire more than two hundred seventy (270) days (as estimated in any such casewithin sixty (60) days after the fire or other casualty by a reputablecontractor, registered architect or licensed professional engineer designatedby Landlord who delivers a copy of such estimate to Tenant within such sixty(60) day period), and provided Landlord shall terminate leases covering no lessthan 50% of the office space in the Building then leased to tenants (includingTenant) in the Building, then in such case Landlord may terminate this Lease bygiving Tenant notice to such effect within one hundred fifty (150) days afterthe date of the casualty.  For thepurpose of this Section only, “full insurable value” shall mean replacementcost less the cost of footings, foundations and other structures below thestreet and first floors of the Building. In addition, if the Building or the demised premises shall besubstantially damaged or destroyed by fire or other cause at any time duringthe last two years of the term of this Lease, then Landlord or Tenant maycancel this Lease upon written notice to the other party hereto given withinsixty (60) days after such damage or destruction.

 

(b)           In case of anysubstantial damage or destruction to the demised premises.  Tenant may cancel this Lease by writtennotice to Landlord, if (i) the estimate in Section 13.3(a) exceeds twohundred seventy (270) days; (ii) within 60 days from the date of thedamage or destruction, Landlord does not file a proof of loss with its insurer;(iii) within 120 days of the date of damage or destruction Landlord doesnot let a contract or contracts which shall provide for the completerestoration of the demised premises within a period of one year from the dateof the damage or destruction; (iv) work under such contract or contractshas not commenced within 180 days of the date of said damage or destruction; or(v) said work is not prosecuted with reasonable diligence to itscompletion; provided that Tenant shall not be entitled to cancel this Leasepursuant to this sentence more than thirty (30) days after Landlord shall havegiven written notice to Tenant that the state of facts specified in clause (i),(ii), (iii), (iv) or (v) of this sentence,

 

40

----

 

as the case may be, hasoccurred.  The period for the completionof the required repairs and restoration work shall be extended by the number ofdays lost due to Force Majeure Causes.

 

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

 

13.5.  Notwithstanding any of theforegoing provisions of this Article 13, if solely by reason of some actor omission on the part of Tenant or any of its subtenants or its or theirpartners, directors, officers, servants, employees, agents or contractors ofwhich Landlord shall have given Tenant notice and a reasonable opportunity tocure either, Landlord or any Superior Lessor or any Superior Mortgagee shall beunable to collect all of the insurance proceeds (including, without limitation,rent insurance proceeds) applicable to damage or destruction of the demisedpremises or the Building by fire or other casualty, then, without prejudice toany other remedies which may be available against Tenant, there shall be noabatement or reduction of the fixed annual rent or additional rent, to theextent that Landlord was unable to collect insurance proceeds.

 

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

 

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

 

ARTICLE 14

 

EMINENT DOMAIN

 

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

 

41

----

 

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

 

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

 

14.3.  Except as otherwiseexpressly provided in Section 14.5 hereof, Landlord shall be entitled toreceive the entire award or payment in connection with any taking withoutdeduction therefrom for any estate vested in Tenant by this Lease and Tenantshall receive no part of such award except as hereinafter expressly provided inthis Article 14. Tenant hereby expressly assigns to Landlord all of itsright, title and interest in and to every such award or payment; provided,however, that Tenant shall have the right to make a separate claim for itsmoving expenses and to the extent the award otherwise payable to Landlord shallnot be diminished thereby, for any of Tenant’s Property taken.

 

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

 

42

----

 

deducting reasonableexpenses including attorneys’ and appraisers’ fees and disbursements) of theaward restore the unaffected part of the demised premises to substantially thesame condition and tenantability as existed prior to the taking to the extentthe same may be feasible (subject to reasonable changes which Landlord shalldeem desirable) and (b) Tenant, at its expense, shall proceed withreasonable diligence to repair the remaining parts of the demised premiseswhich are deemed Landlord’s property pursuant to Section 8.11 hereof (providedthat Landlord shall remit to Tenant the portion of the award therefor) andTenant’s Property, to substantially their former condition to the extent thatthe same may be feasible, subject to reasonable changes which shall be deemedAlterations.

 

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

 

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

 

43

----

 

demised premises shall beapportioned between Landlord and Tenant as of said expiration date of said termand Landlord shall receive that portion of the award which representsreimbursement for the cost of restoration of the demised premises, and allmonies paid as, or as part of, an award for temporary use and occupancy for aperiod beyond the date to which the fixed annual rent and additional rent havebeen paid shall be received, held and applied by Tenant for payment of thefixed annual rent and additional rent becoming due hereunder.

 

ARTICLE 15

 

ASSIGNMENT, SUBLETTINGAND MORTGAGING

 

15.1.  Except as otherwiseexpressly specified herein, Tenant shall not, whether voluntarily,involuntarily or by operation of law or otherwise, (a) assign in whole orin part or otherwise transfer in whole or in part this Lease or the term andestate hereby granted, (b) sublet the demised premises or any part thereofor allow the same to be used, occupied or utilized by others or in violation ofArticle 2 hereof, (c) mortgage, pledge, encumber or otherwisehypothecate this Lease or the demised premises or any part thereof in anymanner, (d) subject to the provisions of Section 15.16, permit thedemised premises or any part thereof to be occupied or used for desk space,mailing privileges or otherwise, by others or (e) advertise, or authorizea broker to advertise, for a subtenant or an assignee, without, in eachinstance, obtaining the prior consent of Landlord.  Except as hereinafter expressly specified, forpurposes of this Article 15: (i) if Tenant (or any subtenant) is acorporation, the provisions of clause (a) of this Section 15.1 shallapply to a transfer (however accomplished, whether in a single transaction orin a series of related or unrelated transactions) of stock (or any othermechanism such as, by way of example, the issuance of additional stock, a stockvoting agreement or change in class(es) of stock) which results in a change ofcontrol of Tenant (or such subtenant) as if such transfer of stock (or othermechanism) which results in a change of control of Tenant (or such subtenant)were an assignment of this Lease (including, without limitation, and by way ofexample only, the transfer of a majority of the outstanding voting stock of acompany, which company owns one hundred percent (100%) of a second tiercompany, which in turn owns fifty-one percent (51%) of the outstanding votingstock of a corporate tenant hereunder), except that the direct or indirect transferof the outstanding capital stock of Tenant, any subtenant or any corporateowner of either at any level by persons or parties though the “over the countermarket” or through any recognized stock exchange, (other than those deemed “insiders”within the meaning of the Securities Exchange Act of 1934, as amended) shallnot be deemed an assignment of this Lease, and if Tenant (or such subtenant) isa partnership or joint venture or limited liability company (herein called a “**LLC**“), said provisions shall apply withrespect to a direct or indirect transfer (by one or more transfers) of aninterest in such partnership, joint venture or LLC (or other mechanism, suchas, by way of example, the creation of additional general partnership orlimited partnership interests) which results in a change of control of suchpartnership, joint venture or LLC, or of a corporation, partnership, jointventure or LLC which

 

44

----

 

controls such entity, asif such transfer of an interest in such partnership, joint venture or LLC (orother mechanism) which results in a change of control of such partnership,joint venture or LLC were an assignment of this Lease (including, withoutlimitation, and by way of example only, the transfer of a majority of theinterests in a partnership, which partnership owns one hundred percent (100%)of a second tier partnership, which in turn owns fifty-one percent (51%) of theinterests in a partnership tenant hereunder), (ii) any person or legalrepresentative of Tenant, to whom Tenant’s interest under this Lease passes byoperation of law, or otherwise, shall be bound by the provisions of this Article 15and (iii) an extension or other material modification or amendment of a subleaseshall be deemed a sublease.  For purposesof this Section 15.1, the term “**control**“shall mean, in the case of a corporation, ownership or voting control, directlyor indirectly, of at least fifty percent (50%) of all the voting stock, and incase of a joint venture or partnership or similar entity, ownership or votingcontrol, directly or indirectly, of at least fifty percent (50%) or all thegeneral or other partnership (or similar) interests therein.  Any agreement pursuant to which(A) Tenant is relieved from the obligation to pay, or a third party agreesto pay on Tenant’s behalf, all or a part of fixed annual rent or additionalrent under this Lease, and/or (B) such third party undertakes or isgranted any right to assign or attempt to assign this Lease or sublet orattempt to sublet all or any portion of the demised premises, shall be deemed atransfer of this Lease and subject to the provisions of this Section 15.1.

 

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

 

45

----

 

is controlled by Tenantor is under common control with Tenant (herein called a “**Tenant’sAffiliate**“); provided, however that (A) Landlord shall begiven prompt written notice of any such sublease or occupancy arrangementaccompanied by reasonable evidence of such affiliate relationship, and(B) the cessation of such affiliate relationship while such sublease oroccupancy is continuing shall be deemed a transaction to which all of the termsof this Article 15 shall apply.  Forpurposes hereof, the term “net worth” shall mean the excess of total assetsover total liabilities; total assets and total liabilities each beingdetermined in accordance with generally accepted accounting principlesconsistently applied.

 

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

 

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

 

46

----

 

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

 

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

 

15.7.  Notwithstanding anythingto the contrary contained in this Article 15, if Tenant shall at any timeor times during the term of this Lease desire to assign this Lease or subletall or part of the demised premises and Landlord’s consent shall be requiredtherefore pursuant to the terms hereof, Tenant shall give notice thereof toLandlord (herein called a “**Marketing Notice**“),which notice shall set forth (a) in the case of a proposed subletting, thearea proposed to be sublet, and, in the case of a proposed assignment suchnotice shall set forth Tenant’s intention to assign this Lease, (b) theterm of the proposed subletting including the proposed dates of thecommencement and the expiration of the term of the proposed sublease or the effectivedate of the proposed assignment, as the case may be, and (c) the rents,work contributions, and all other material provisions that are proposed to beincluded in the transaction.  Tenantshall also provide Landlord with such other information as Landlord mayreasonably request.  Except for anyassignment or sublease which does not require Landlord’s consent pursuant to Section 15.2hereof, such Marketing Notice shall be deemed an irrevocable offer from Tenantto Landlord whereby Landlord (or Landlord’s designee) may, at its option, (i) terminatethis Lease (if the proposed transaction is an assignment or a sublease for allor substantially all of the balance of the term of this Lease with respect toall or substantially all of the demised premises), or (ii) terminate thisLease with respect to the space covered by the proposed sublease (if theproposed transaction is a sublease of part of the demised premises for all orsubstantially all of the

 

47

----

 

balance of the term ofthis Lease).  Said option may beexercised by Landlord by notice to Tenant at any time within thirty (30) daysafter such notice has been given by Tenant to Landlord and Landlord shall havereceived all other information required to be furnished to Landlord by Tenantpursuant to the provisions of this Section 15.7 (a), (b) and (c); andduring such thirty (30) day period Tenant shall not assign this Lease or subletsuch space to any person.

 

15.8.  If Landlord exercises itsoption to terminate this Lease in the case where Tenant desires either toassign this Lease or sublet all or substantially all of the demised premisesfor all or substantially all of the balance of the term of this Lease, then,this Lease shall end and expire on the date that such assignment or sublet wasto be effective or commence, as the case may be, and the fixed annual rent andadditional rent shall be paid and apportioned to such date.

 

15.9.  If Landlord exercises itsoption to terminate this Lease with respect to the space covered by Tenant’sproposed sublease in any case where Tenant desires to sublet part of thedemised premises for all or substantially all of the balance of the term ofthis Lease, then (a) this Lease shall end and expire with respect to suchpart of the demised premises on the date that the proposed sublease was tocommence; (b) from and after such date the fixed annual rent, additionalrent and The Percentage shall be adjusted, based upon the proportion that therentable area of the demised premises remaining bears to the total rentablearea of the demised premises; and (c) Tenant shall pay to Landlord, upondemand, as additional rent hereunder the costs incurred by Landlord inphysically separating such part of the demised premises from the balance of thedemised premises and in complying with any laws and requirements of any publicauthorities relating to such separation.

 

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

 

(a)           Tenant shall havedelivered to Landlord within one (1) year after the giving of the applicableMarketing Notice: (i) a duplicate original of the sublease or assignmentinstrument, (ii) all other documents to be executed in connectiontherewith, (iii) in reasonable detail the identity of the proposedassignee or subtenant, the nature of its business and its proposed use of thedemised premises and (iv) in connection with a proposed assignment of thisLease, current financial information with respect to the proposed assigneeincluding, without limitation, its most recent financial report;

 

48

----

 

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

 

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

 

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

 

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

 

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

 

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

 

(h)           Tenant shall nothave advertised the availability of the demised premises in an advertisementstating the name (as distinguished from the address) of the Building or theproposed rental.

 

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

 

49

----

 

Section 15.7 hereof,then in such event, Tenant’s request for consent pursuant to Section 15.11hereof shall be deemed to be an irrevocable offer from Tenant to Landlord as towhich Landlord shall have the option set forth in Section 15.7 hereof.  The terms of a proposed sublet or proposedassignment shall be deemed “**substantiallydifferent from**“ the terms set forth in the Marketing Noticedelivered to Landlord pursuant to Section 15.7 hereof if the economicterms of such proposed sublet or assignment on an aggregate basis differ bymore than five (5%) percent from the terms contained in the Marketing Noticedelivered to Landlord pursuant to Section 15.7 hereof.

 

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

 

15.12.      With respect to eachand every sublease or subletting authorized by Landlord under the provisions ofthis Lease, it is further agreed:

 

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

 

(b)           No subtenant shalltake possession of the demised premises or any part thereof, until an executedcounterpart of such sublease (and all ancillary documents executed inconnection with, with respect to or modifying such sublease) has been deliveredto Landlord.

 

(c)           Each sublease shallprovide that it is subject and subordinate to this Lease and to any matters towhich this Lease is or shall be subordinate, and that in the event oftermination, reentry or dispossess by Landlord under this Lease Landlord may,at its option, take over all of the right, title and interest of Tenant, assublessor, under such sublease, and such subtenant shall, at Landlord’s option,attorn to Landlord pursuant to the then executory provisions of such sublease,except that Landlord shall not be (i) liable for any previous act oromission of Tenant under such sublease, (ii) subject to any credit,offset, claim, counterclaim, demand or defense which such subtenant may haveagainst Tenant, (iii) bound by any previous modification of such subleaseor by any previous prepayment of more than one (1) month’s rent,(iv) bound by any covenant of Tenant to undertake or complete anyconstruction of the demised premises or any portion thereof, (v) requiredto account for any security deposit of the subtenant other than any securitydeposit actually delivered to Landlord by Tenant, (vi) bound by anyobligation to make any payment to such subtenant or grant any credits, exceptfor services, repairs, maintenance and restoration provided for under thesublease to be performed after the date of such attornment,(vii) responsible for any monies owing by Landlord to the credit

 

50

----

 

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

 

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

 

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

 

(b)           For purposes of thisSection 15.14, the term “**AssignmentProfit**“ shall mean an amount equal to all sums and otherconsideration paid to Tenant by the assignee for or by reason of suchassignment (including, without limitation, sums paid for the sale or rental ofTenant’s fixtures, leasehold improvements, equipment, furniture, furnishings orother personal property, less, in the case of the sale thereof, the netunamortized cost thereof determined on the basis of Tenant’s federal income taxreturns and, in the case of the rental thereof, the fair rental value thereof),after deducting therefrom the amount of “Tenant’s Costs”, as hereinafterdefined.

 

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

 

51

----

 

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

 

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

 

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

 

15.15.      Notwithstandinganything to the contrary contained herein, Tenant shall not be required toobtain Landlord’s consent to the use of desk space in the demised premises (*i.e.*, space which is part of the demised premisesand not separately demised from the balance of the demised premises and whichshares reception and other access and facilities therewith), consisting of notmore than six (6) offices at any one time, by other persons or entities (the “**Permitted Occupants**”), providedthat the Permitted Occupants shall use the demised premises only for thepurposes permitted under this Lease and such use shall be consistent with thecontinued operation of the Building as a first-class office building.  Permission to such Permitted Occupants to usethe demised premises shall not create a tenancy or any other interest in the demisedpremises except a license which shall cease and expire in any eventautomatically without notice upon the expiration or termination of this Leaseand all acts, omissions and operations of such Permitted Occupants shall bedeemed acts, omissions and operations of the Tenant.

 

ARTICLE 16

 

ACCESS TO DEMISEDPREMISES; CHANGES

 

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

 

52

----

 

premises and areinstalled by such methods and at such locations as will not interfere with orimpair Tenant’s layout or use of the demised premises except to a *de minimis* extent. Landlord or its agents or designees shall have the right, but only uponreasonable advance notice made to Tenant or any authorized employee of Tenantat the demised premises, except in cases of emergency, to enter the demisedpremises at reasonable times, (a) after business hours for the making ofsuch repairs, alterations, additions and improvements as Landlord may deemnecessary in or to the demised premises and/or in or to the Building or its facilitiesand equipment or which Landlord shall be required to or shall have the right tomake by the provisions of this Lease, (b) subject to the foregoing, shallalso have the right to enter the demised premises for the purpose of inspectingthem or exhibiting them to prospective purchasers or lessees of the entireBuilding or to prospective mortgagees of the fee or of the Landlord’s interestin the property of which the demised premises are a part or to prospectiveassignees of any such mortgages or to the holder of any mortgage on Landlord’sinterest in the property, its agents or designees and (c) to read anyutility meters located therein.  Landlordshall be allowed to temporarily take all material into and upon the demisedpremises that may be required for the repairs, alterations, additions and/orimprovement above mentioned as the same is required for such purpose withoutany liability to Tenant and without any reduction of Tenant’s covenants andobligations under this Lease and without the same constituting an eviction ofTenant in whole or in part, and the rent reserved shall in no wise abate,except as otherwise expressly provided in this Lease, while said repairs,alterations, additions and/or improvements are being made, by reason of loss orinterruption of the business of Tenant because of the prosecution of any suchwork.  Landlord shall diligently proceedin the prosecution of such work and shall exercise reasonable efforts tominimize any disturbance with Tenant’s business operations.

 

16.2.  Landlord reserves theright, at any time, without it being deemed a constructive eviction and withoutincurring any liability to Tenant therefor, or affecting or reducing any ofTenant’s covenants and obligations hereunder, to make or permit to be made suchchanges, alterations, additions and improvements in or to the Building and thefixtures and equipment thereof as Landlord shall deem necessary or desirable,and to change the arrangement and/or location of public entrances, passageways,doors, doorways, corridors, elevators, stairways, toilets and other publicparts of the Building; provided, however, that access to the Building shall notbe cut off and that there shall be no unreasonable obstruction of access to thedemised premises or unreasonable interference with the use or enjoymentthereof.

 

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

 

53

----

 

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

 

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

 

16.6.  Except for the spacewithin the inside surfaces of all walls, hung ceilings, floors, windows anddoors bounding the demised premises, all of the Building, including, withoutlimitation, exterior and atrium Building walls, core corridor walls and doorsand any core corridor entrance, any terraces or roofs adjacent to the demisedpremises, and any space in or adjacent to the demised premises used for shafts,stacks, pipes, conduits, fan rooms, ducts, electric or other utilities, sinksor other Building facilities, and the use thereof are reserved to Landlord andpersons authorized by Landlord.

 

ARTICLE 17

 

CERTIFICATE OF OCCUPANCY

 

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

 

ARTICLE 18

 

BANKRUPTCY

 

18.1.  Subject to the provisionsof Section 18.3 hereof, if at any time prior to the Commencement Datethere shall be filed by or against Tenant in any court pursuant to any statuteeither of the United States or of any State a petition in bankruptcy orinsolvency or for reorganization or for the appointment of a receiver or atrustee of all or a portion of Tenant’s property, or if Tenant makes anassignment for the benefit of creditors, or petitions for or enters into anarrangement with creditors, this Lease shall

 

54

----

 

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

 

18.2.  Subject to the provisionsof Section 18.3 hereof, if at the Commencement Date or if at any timeduring the term hereby demised there shall be filed by or against Tenant in anycourt pursuant to any statute either of the United States or of any State apetition in bankruptcy or insolvency or for reorganization or for theappointment of a receiver or trustee of all or a portion of Tenant’s property, orif Tenant makes an assignment for the benefit of creditors, or petitions for orenters into an arrangement with creditors, Landlord may, at Landlord’s option,serve upon Tenant or any such trustee, receiver, or assignee, a notice inwriting stating that this Lease and the term hereby granted shall cease andexpire on the date specified in said notice, which date shall be not less thanten (10) days after the serving of said notice, and this Lease and the termhereof shall then expire on the date so specified as if that date hadoriginally been fixed in this Lease as the expiration date of the term hereingranted.  Thereupon, neither Tenant norany person claiming through or under Tenant by virtue of any statute or of anorder of any court shall be entitled to possession or to remain in possessionof the demised premises but shall forthwith quit and surrender the demisedpremises, and Landlord, in addition to the other rights and remedies given by Section 18.4hereof and by virtue of any other provision herein or elsewhere in this Leasecontained or by virtue of any statute or rule of law, may retain as liquidateddamages any fixed annual rent, additional rent, security deposit or moniesreceived by it from Tenant or others in behalf of Tenant.

 

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

 

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

 

55

----

 

hereunder for theunexpired portion of the term demised and the then fair and reasonable rentalvalue of the demised premises for the same period, if lower than the rentreserved at the time of termination.  Ifthe demised premises or any part thereof be re-let by Landlord for theunexpired term of this Lease, or any part thereof, before presentation of proofof such liquidated damages to any court, commission or tribunal, the amount ofrent reserved upon such re-letting shall be prima facie the fair and reasonablerental value for the part or the whole of the demised premises so re-let duringthe term of the re-letting.  Nothingherein contained shall limit or prejudice the right of Landlord to prove forand obtain as liquidated damages by reason of such termination an amount equalto the maximum allowed by any statute or rule of law in effect at the timewhen, and governing the proceedings in which such damages are to be proved,whether or not such amount be greater, equal to, or less than the amount of thedifference referred to above.

 

18.5.  (a)  If Tenant shall have assigned its interest inthis Lease, and this Lease shall thereafter be disaffirmed or rejected by theassignee in any proceeding under the United States Bankruptcy Code or under theprovisions of any Federal, state or foreign law of like import, or in the eventof termination of this Lease by reason of any such proceeding, the assignor orany of its predecessors in interest under this Lease, upon request of Landlordgiven within ninety (90) days after such disaffirmance or rejection shall(a) pay to Landlord all fixed annual rent and additional rent then due andpayable to Landlord under this Lease to and including the date of suchdisaffirmance or rejection and (b) enter into a new lease as lessee withLandlord of the demised premises for a term commencing on the effective date ofsuch disaffirmance or rejection and ending on the Expiration Date, unlesssooner terminated as in such lease provided, at the same fixed annual rent andadditional rent and upon the then executory terms, covenants and conditions asare contained in this Lease, except that (i) the rights of the lesseeunder the new lease, shall be subject to any possessory rights of the assigneein question under this Lease and any rights of persons claiming through orunder such assignee, (ii) such new lease shall require all defaultsexisting under this Lease to be cured by the lessee with reasonable diligence,and (iii) such new lease shall require the lessee to pay all additionalrent which, had this Lease not been disaffirmed or rejected, would have becomedue after the effective date of such disaffirmance or rejection with respect toany prior period.  If the lessee shallfail or refuse to enter into the new lease within thirty (30) days afterLandlord’s request to do so and receipt of permission of the Bankruptcy Courthaving jurisdiction, then in addition to all other rights and remedies byreason of such default, under this Lease, at law or in equity, Landlord shallhave the same rights and remedies against the lessee as if the lessee hadentered into such new lease and such new lease had thereafter been terminatedat the beginning of its term by reason of the default of the lessee thereunder.

 

(b)           If pursuant to theBankruptcy Code Tenant is permitted to assign this Lease in disregard of therestrictions contained in Article 15 hereof (or if this Lease shall beassumed by a trustee), the trustee or assignee shall cure any default underthis Lease and shall provide adequate assurance of future performance by thetrustee or

 

56

----

 

assignee including(a) of the source of payment of rent and performance of other obligationsunder this Lease and that any such assignee of this Lease shall have a networth, computed in accordance with generally accepted accounting principles,equal to at least ten (10) times the aggregate of the fixed annual rentreserved hereunder plus all additional rent for the preceding calendar year asaforesaid and (b) that the use of the demised premises shall in no waydiminish the reputation of the Building as a first-class office building orimpose any additional burden upon the Building or increase the services to beprovided by Landlord.  If Tenant’strustee, Tenant or Tenant as debtor-in-possession assumes this Lease andproposes to assign the same (pursuant to Title 11 U.S.C. Section 365, asthe same may be amended) to any person, including, without limitation, anyindividual, partnership or corporate entity, who shall have made a bona fideoffer to accept an assignment of this Lease on terms acceptable to the trustee,Tenant or Tenant as debtor-in-possession, then notice of such proposedassignment, setting forth (i) the name and address of such person,(ii) all of the terms and conditions of such offer, and (iii) theadequate assurance to be provided Landlord to assure such person’s futureperformance under this Lease, including, without limitation, the assurancesreferred to in Title 11 U.S.C. Section 365(b)(3) (as the same may beamended), shall be given to Landlord by the trustee, Tenant or Tenant asdebtor-in-possession no later than twenty (20) days after receipt by thetrustee, Tenant or Tenant as debtor-in-possession of such offer, but in anyevent no later than ten (10) days prior to the date that the trustee, Tenant orTenant as debtor-in-possession shall make application to a court of competentjurisdiction for authority and approval to enter into such assignment andassumption.

 

ARTICLE 19

 

DEFAULT

 

19.1.  If

 

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

 

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

 

57

----

 

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

 

(c)           any event shalloccur or any contingency shall arise whereby this Lease or the estate herebygranted or the unexpired balance of the term hereof would, by operation of lawor otherwise, devolve upon or pass to any person, firm or corporation otherthan Tenant, except as expressly permitted by Article 15 hereof, and suchevent shall not be cured within twenty (20) days of the Landlord has secondnotice thereof on Tenant, or

 

(d)           Tenant shall abandonthe demised premises;

 

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

 

19.2.  If Tenant shall default inthe payment of any fixed annual rent or additional rent, and such default shallcontinue for ten (10) days after written notice thereof has been given toTenant, or if this Lease shall terminate as provided in Section 19.1hereof, Landlord or Landlord’s agents and employees may immediately or at anytime thereafter reenter the demised premises, or any part thereof, either bysummary dispossess proceedings or by any suitable action or proceeding at law,without being liable to indictment, prosecution or damages therefor, and mayrepossess the same, and may remove any person therefrom, to the end thatLandlord may have, hold and enjoy the demised premises.  The word “reenter,” as used herein, is notrestricted to its technical legal meaning. If this Lease is terminated under the provisions of Section 19.1hereof, or if Landlord shall reenter the demised premises under the provisionsof this Section 19.2, or in the event of the termination of this Lease, orof reentry, by or under any summary dispossess or other proceeding or action orany provision of law by reason of default hereunder on the part of Tenant,Tenant shall thereupon pay to Landlord the fixed annual

 

58

----

 

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

 

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

 

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

 

ARTICLE 20

 

REMEDIES OF LANDLORD;WAIVER OF REDEMPTION

 

20.1.  If this Lease isterminated under the provisions of Article 19 hereof, or if Landlord shallreenter the demised premises under the provisions of Article 19 hereof, orin the event of the termination of this Lease, or of reentry, by or under anysummary dispossess or other proceeding or action or any provision of law byreason of default hereunder on the part of Tenant, (a) the fixed annualrent and additional rent shall become due thereupon and be paid up to the timeof such re-entry, dispossess and/or expiration, together with such expenses asLandlord may incur for legal expenses, reasonable attorneys’ fees, brokerage,and/or putting the demised premises in good order, or for preparing the samefor rental; (b) Landlord may re-let the demised premises or any part orparts thereof, either in the name of Landlord or otherwise, for a term orterms, which may at Landlord’s option be less than or exceed the period whichwould otherwise have constituted the balance of the term of this Lease and maygrant concessions or free rent; and (c) Tenant shall also pay Landlord asdamages for the failure of Tenant to observe and perform said Tenant’sobligations herein contained either:

 

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

 

59

----

 

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

 

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

 

In computing the damages payable under clause (i)or clause (ii) of the immediately preceding sentence, there shall be addedto the lump sum payment or deficiency, as the case may be, such expenses asLandlord may incur or pay in connection with terminating this Lease or re-enteringthe demised premises and in securing possession thereof, including, withoutlimitation, reasonable attorneys’ fees and disbursements, brokerage, and forkeeping the demised premises in good order or for preparing the same forre-letting.

 

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

 

Landlord, at Landlord’s option, may make suchalterations, repairs, replacements and/or decorations in the demised premisesas Landlord, in Landlord’s sole

 

60

----

 

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

 

20.2.  Tenant hereby expresslywaives any and all rights of redemption granted by or under any present orfuture laws in the event of Tenant being evicted or dispossessed for any cause,or in the event of Landlord obtaining possession of the demised premises, byreason of the violation by Tenant of any of the covenants and conditions ofthis Lease or otherwise.

 

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

 

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

 

20.5.  In addition, if this Leaseis terminated under the provisions of Article 19 hereof, or if Landlordshall, reenter the demised premises under the provisions of Article 19hereof, Tenant agrees that:

 

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

 

(b)           Tenant shall haveperformed prior to any such termination any covenant of Tenant contained inthis Lease for the making of any Alterations or for restoring or rebuilding thedemised premises or the Building, or any part thereof; and

 

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

 

61

----

 

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

 

20.6.  In addition to any otherremedies Landlord may have under this Lease, and without reducing or adverselyaffecting any of Landlord’s rights and remedies under Article 19 hereof,if any fixed annual rent, additional rent or damages payable hereunder byTenant to Landlord are not paid within five (5) days after the due datethereof, the same shall bear interest at the prime rate of Citibank, N.A. plus2% per annum or the maximum rate permitted by law, whichever is less, from thedue date thereof until paid, and the amount of such interest shall beadditional rent hereunder.

 

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

 

ARTICLE 21

 

CURING TENANT’S DEFAULTS;FEES AND EXPENSES

 

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

 

21.2.  Bills for any expensesincurred by Landlord in connection with any such performance by it for theaccount of Tenant, and bills for all costs, expenses and disbursements of everykind and nature whatsoever, including reasonable counsel fees, involved incollecting or endeavoring to collect the fixed annual rent or additional rentor any part thereof or enforcing or endeavoring to enforce any rights againstTenant or Tenant’s obligations hereunder, under or in connection with thisLease or pursuant to law, including any such cost, expense and disbursementinvolved in instituting and prosecuting summary proceedings or in recoveringpossession of the demised premises after default by Tenant or upon theexpiration or sooner termination of this Lease, and interest on all sumsadvanced by Landlord under this Section 21.2 and/or Section 21.1hereof (at the Interest Rate or the maximum rate permitted by law, whichever isless) may be sent by Landlord to Tenant monthly, or immediately, at its option,and such amounts shall be due and payable as additional rent within thirty (30)days after Tenant’s receipt of such bills.

 

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

 

62

----

 

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

 

ARTICLE 22

 

NO REPRESENTATIONS BYLANDLORD

 

22.1.  Tenant expresslyacknowledges and agrees that Landlord has not made and is not making, andTenant, in executing and delivering this Lease, is not relying upon, anywarranties, representations, promises or statements, except to the extent thatthe same are expressly set forth in this Lease or in any other writtenagreement which may be made between the parties concurrently with the executionand delivery of this Lease and shall expressly refer to this Lease.  All understandings and agreements heretoforehad between the parties are merged in this Lease and any other writtenagreement(s) made concurrently herewith, which alone fully and completelyexpress the agreement of the parties and which are entered into after fullinvestigation, neither party relying upon any statement or representation notembodied in this Lease or any other written agreement(s) made concurrentlyherewith.

 

ARTICLE 23

 

END OF TERM

 

23.1.  Upon the expiration orother termination of the term of this Lease, or upon any re-entry by Landlordupon the demised premises, Tenant shall quit and surrender to Landlord thedemised premises, broom clean, in good order and condition and repair, ordinarywear and tear and damage by fire, the elements or other casualty andcondemnation excepted, and Tenant shall remove all of its property as hereinprovided.  Tenant’s obligation to observeor perform this covenant shall survive the expiration or other termination ofthe term of this Lease.

 

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

 

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

 

63

----

 

pay on the first day ofeach month of the holdover period as fixed annual rent, an amount equal to twotimes one-twelfth of the fixed annual rent and additional rent payable byTenant during the twelve (12) months preceding the expiration of the term ofthis Lease (annualized in the case of an early termination occurring less than12 months after the Commencement Date and, in any event, without giving effectto any abatement or offset against such rents). It is further stipulated and agreed that if Landlord shall, at any timeafter the expiration of the original term or after the expiration of any termcreated thereafter, proceed to remove Tenant from the demised premises as aholdover, the fixed annual rent for the use and occupancy of the demisedpremises during any holdover period shall be calculated in the same manner asset forth above.  In addition to theforegoing, Landlord shall be entitled to recover from Tenant any losses ordamages arising from such holdover as provided in Section 23.3(c) hereof.

 

(b)           Notwithstandinganything to the contrary contained in this Lease, the acceptance of any rentpaid by Tenant pursuant to Section 23.3(a) hereof shall not precludeLandlord from commencing and prosecuting a holdover or summary evictionproceeding, and the preceding sentence shall be deemed to be an “agreementexpressly providing otherwise” within the meaning of Section 223-c of theReal Property Law of the State of New York.

 

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

 

ARTICLE 24

 

QUIET ENJOYMENT

 

24.1.  Landlord covenants andagrees that subject to the terms and provisions of this Lease and to SuperiorLeases and Superior Mortgages, if, and so long as, Tenant keeps and performseach and every covenant, agreement, term, provision and condition hereincontained on the part or on behalf of Tenant to be kept or performed, thenTenant’s rights under this Lease shall not be cut off or ended before theexpiration of the term of this Lease. This covenant shall be construed as a covenant running with the Land,and is not, nor shall it be construed as, a personal covenant of Landlord,except to the extent of Landlord’s interest in the building project and only solong as such interest shall continue, and thereafter Landlord shall be relievedof all liability hereunder thereafter arising and this covenant shall bebinding only upon subsequent successors in interest of Landlord’s interest inthis Lease, to the extent of their respective interests, as and when they shallacquire the same, and so long as they shall retain such interest.

 

64

----

 

ARTICLE 25

 

DEFINITIONS

 

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

 

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

 

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

 

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

 

(d)           The term “**CPI**” shall mean the Consumer PriceIndex for All Urban Consumers (“CPI-AUC”), New York, New York-Northeastern NewJersey, All Items (1982-1984=100), issued and published by the Bureau of LaborStatistics of the United States Department of Labor.  In the event that CPI-AUC ceases to use a1982-84 base rate of 100 as the basis of calculation, then the CPI-AUC shall beadjusted to the figure that would have been arrived at had the manner ofcomputing the CPI-AUC in effect at the date of this Lease not beenaltered.  If CPI-AUC is not available ormay not lawfully be used for the purposes herein stated, the term “ConsumerPrice Index” shall mean (i) a successor or substitute index to CPI-AUC,appropriately adjusted; or (ii) if such a successor or substitute index isnot available or may not lawfully be used for the purposes herein stated, areliable governmental or other non-partisan publication, selected by Tenant andapproved by Landlord (which approval shall not be unreasonably withheld ordelayed), evaluating the information theretofore used in determining CPI-AUC.

 

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

 

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

 

65

----

 

of title to the Land andBuilding or said lease, or in the event of a lease of the Building, or of theLand and Building, upon notification to Tenant of such transfer or lease thesaid transferor Landlord shall be and hereby is entirely freed and relieved ofall future covenants, obligations and liabilities of Landlord hereunder, and itshall be deemed and construed as a covenant running with the land withoutfurther agreement between the parties or their successors in interest, orbetween the parties and the transferee of title to the Land and Building orsaid lease, or the said lessee of the Building, or of the Land and Building,that the transferee or the lessee has assumed and agreed to carry out any andall such covenants, obligations and liabilities of Landlord hereunder.

 

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

 

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

 

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

 

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

 

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

 

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

 

66

----

 

York Board ofUnderwriters and/or the New York Fire Insurance Rating Organization and/or anyother similar body performing the same or similar functions and havingjurisdiction or cognizance over the Building and/or the demised premises,whether now or hereafter in force.

 

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

 

ARTICLE 26

 

ADJACENT EXCAVATION —SHORING

 

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

 

ARTICLE 27

 

RULES AND REGULATIONS

 

27.1.  Tenant and Tenant’sservants, employees and agents shall observe faithfully and comply strictlywith the Rules and Regulations set forth in Exhibit E attached hereto and made part hereof entitled “**Rules and Regulations**“ and suchother and further reasonable rules and regulations as Landlord or Landlord’sagents may from time to time adopt; provided, however, that in case of anyconflict or inconsistency between the provisions of this Lease and of any ofthe Rules and Regulations as originally or as hereafter adopted, the provisionsof this Lease shall control.  Reasonablewritten notice of any additional rules and regulations shall be given toTenant.  Landlord shall not enforce theRules and Regulations in a manner discriminatory to Tenant.

 

Nothing in this Lease contained shall be construed toimpose upon Landlord any duty or obligation to enforce the Rules andRegulations or the terms, covenants or conditions in any other lease, againstany other tenant of the Building, and Landlord shall not be liable to Tenantfor violation of the same by any other tenant, its

 

67

----

 

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

 

Landlord shall not unreasonably withhold from Tenantany approval provided for in the rules and regulations and shall exercise itsjudgment in good faith.

 

ARTICLE 28

 

NO WAIVER

 

28.1.  No agreement to accept asurrender of this Lease shall be valid unless in writing signed byLandlord.  No employee of Landlord or ofLandlord’s agents shall have any power to accept the keys of the demisedpremises prior to the termination of this Lease.  The delivery of keys to any employee ofLandlord or of Landlord’s agent shall not operate as a termination of thisLease or a surrender of the demised premises. In the event of Tenant at any time desiring to have Landlord sublet thedemised premises for Tenant’s account, Landlord or Landlord’s agents areauthorized to receive said keys for such purpose without releasing Tenant fromany of the obligations under this Lease. The failure of Landlord to seek redress for violation of, or to insistupon the strict performance of, any covenant or condition of this Lease or anyof the Rules and Regulations set forth herein, or hereafter adopted byLandlord, shall not prevent a subsequent act, which would have originallyconstituted a violation, from having all the force and effect of any originalviolation.  The receipt by Landlord, orpayment by Tenant, of rent with knowledge of the breach of any covenant of thisLease shall not be deemed a waiver of such breach.  The failure of Landlord to enforce any of theRules and Regulations set forth herein, or hereafter adopted, against Tenantand/or any other tenant in the Building shall not be deemed a waiver of anysuch Rules and Regulations.  No provisionof this Lease shall be deemed to have been waived by Landlord, unless suchwaiver be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than themonthly rent herein stipulated shall be deemed to be other than on the accountof the earliest stipulated rent, nor shall any endorsement or statement on anycheck or any letter accompanying any check or payment of rent be deemed anaccord and satisfaction, and Landlord may accept such check or payment withoutprejudice to Landlord’s right to recover the balance of such rent or pursue anyother remedy in this Lease provided.

 

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

 

68

----

 

ARTICLE 29

 

WAIVER OF TRIAL BY JURY

 

29.1.  Landlord and Tenant dohereby waive trial by jury in any action, proceeding or counterclaim brought byeither of the parties hereto against the other on any matters whatsoeverarising out of or in any way connected with this Lease, the relationship ofLandlord and Tenant, Tenant’s use or occupancy of the demised premises, and/orany other claims (except claims for personal injury or property damage), andany emergency statutory or any other statutory remedy.  It is further mutually agreed that ifLandlord commences any summary proceeding to recover rent or recover possessionof the demised premises, Tenant will not interpose and does hereby waive theright to interpose any counterclaim of whatever nature or description in anysuch proceeding (other than compulsory counterclaims).  The provisions of this Article 29 shallsurvive any expiration or sooner termination of this Lease.

 

ARTICLE 30

 

INABILITY TO PERFORM

 

30.1.  If, by reason of(a) strike, (b) labor troubles, (c) governmental pre-emption inconnection with a national emergency, (d) any rule, order or regulation ofany governmental agency, (e) conditions of supply or demand which areaffected by war or other national, state or municipal emergency, or (f) anycause beyond Landlord’s reasonable control (the foregoing circumstancesdescribed in this Section 30.1 being herein called “**Force Majeure Causes**“), Landlord shallbe unable to fulfill, or is delayed in fulfilling, any of its obligations underthis Lease or shall be unable to supply any service which Landlord is obligatedto supply, this Lease and Tenant’s obligations hereunder, including, withoutlimitation, the payment of rent hereunder, shall in no wise be affected,impaired or excused nor shall Landlord have any liability whatever to Tenant,nor shall the same be deemed constructive eviction.

 

ARTICLE 31

 

NOTICES

 

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

 

69

----

 

If to Landlord:

 

c/oFisher Brothers299 Park AvenueNew York, New York  10171Attention:  Mr. Kenneth Fisher, Partner

 

with copies to:

 

c/oFisher Brothers299 Park AvenueNew York, New York  10171Attention:  Jonathan W. Knipe, Esq.

 

and

 

Paul,Hastings, Janofsky & Walker LLP75 East 55th StreetNew York, New York  10022Attention:  Martin L. Edelman, Esq.

 

and ifto Tenant, before Tenant takes occupancy of the demised premises for theconduct of its business, to the address at the head of this Lease andthereafter as follows:

 

GeneralMaritime Corporation299 Park AvenueNew York, New York 10171Attention:  Mr. E. Nikolas Tavlarios

 

with a copy to:

 

KramerLevin Naftalis & Frankel LLP919 Third AvenueNew York, New York  10022Attention:  Thomas E. Constance, Esq.

 

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

 

70

----

 

Either party may, by notice as aforesaid, designate a different addressor addresses for notices intended for it. Notwithstanding the foregoing, with respect to an occurrence presentingimminent danger to the health or safety of persons or damage to property in, onor about the Building, notices may be hand delivered to Tenant at the demisedpremises or Landlord at the Building, provided that the same notice is alsosent in the manner set forth above.

 

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

 

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

 

31.4.  Notwithstanding anythingto the contrary contained in this Lease, a rent bill or a bill for servicesrendered by the cleaning contractor for the Building, in either case sent toTenant by first class mail to the first address to which notices are to begiven to Tenant as set forth in Section 31.1 above, shall be deemed aproper demand for the payment of the amounts set forth therein (but nothingcontained herein shall be deemed to require Landlord to send any rent bill orotherwise make any demand for the payment of rent except in those cases, ifany, explicitly provided for in this Lease).

 

ARTICLE 32

 

SERVICES

 

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

 

32.2.  (a)  Landlord shall, through the air conditioningsystem of the Building, furnish air conditioning, ventilation and heating (“**HVAC**“) to the demised premises, onan all-year-round basis, during the hours from 8:00 A.M. to 6:00 P.M. onbusiness days (herein called “**business hours**”).  The peripheral and interior HVAC systems willbe automatically controlled to achieve a design standard providing (a) airconditioning at a dry bulb temperature of 78 degrees Fahrenheit when theoutdoor dry bulb temperature is 95 degrees Fahrenheit, and the outdoor wet bulbis 75 degrees Fahrenheit, (b) heat at 70 degrees Fahrenheit in zerodegrees Fahrenheit weather and (c) proper ventilation for the interiorspaces at all seasons of the year.  Thisspecification is predicated on occupancy of one person per 100 usable squarefeet and appropriate use of window blinds.

 

71

----

 

(b)           Tenant agrees tokeep and cause to be kept closed all the doors to the demised premises at alltimes, and Tenant agrees to abide by all the regulations and requirements whichLandlord may reasonably prescribe for the proper functioning and protection ofsaid air conditioning systems.

 

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

 

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

 

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

 

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

 

72

----

 

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

 

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

 

32.5.  Landlord agrees to causethe demised premises to be cleaned on business days as set forth in Exhibit Fannexed hereof.  Landlord shall have noobligation to perform cleaning services in those portions of the demisedpremises which are below grade, bank space, or which are used for thepreparation, dispensing or consumption of food or beverages, for use astraining rooms, trading rooms/floors, for files, storage, mailing or shippingpurposes, for the operation of computer, telex, data processing, reproductionor similar equipment or as private lavatories or toilets or other specialpurposes requiring greater or more difficult cleaning work than office areas,all of which portions Tenant shall cause to be kept clean at Tenant’s cost andexpense.  Tenant shall pay to Landlord,on demand, a reasonable charge for the removal from the demised premises of anyrefuse and rubbish of Tenant as shall not be contained in waste receptacles ofcustomary office size and for the removal of refuse and rubbish of Tenant’smachines and of eating facilities requiring special handling (known as wetgarbage).  Landlord, its cleaningcontractor and their employees shall have access to the demised premises afterbusiness hours and the use of Tenant’s light, power and water in the demisedpremises, without charge therefor, as may be reasonably required for thepurpose of cleaning the demised premises, and shall turn off all such utilitieswhen the cleaning is completed.

 

32.6.  If Tenant is permittedhereunder to and does have a separate area for the preparation or consumptionof food in the demised premises,

 

32.7.  Tenant has been advised byLandlord that the cleaning contractor for the Building is an entity undercommon control with Landlord and Tenant agrees to employ said contractor orsuch other contractor as Landlord may from time to time reasonably designatefor all waxing, shampooing, polishing, lamp replacement and other specialcleaning or maintenance work of the demised premises and of Tenant’s furniture,fixtures and equipment.  Landlordrepresents that the cost and quality thereof shall be reasonably comparable tothat of other contractors doing comparable work in comparable buildings in thearea of the Building.  Tenant shall notemploy any other such contractor or individual without Landlord’s prior writtenconsent, but nothing herein contained shall

 

73

----

 

prohibitTenant from utilizing a limited number of “on staff” day porters hired directlyby Tenant to perform special cleaning of a nature not provided by the employeesof Landlord’s designated cleaning contractor in the Building, but only for solong as the employment by Tenant of such day porters does not result injurisdictional disputes or strikes.

 

32.8.  Subject to the provisionsof Articles 13 and 14 hereof, Landlord reserves the right, without liability toTenant and without it being deemed a constructive eviction, to stop orinterrupt any heating, elevator, escalator, lighting, ventilating,air-conditioning, steam, power, electricity, water, cleaning or other serviceand to stop or interrupt the use of any Building facilities and systems at suchtimes as may be necessary and for as long as may reasonably be required byreason of accidents, strikes, or the making of repairs, alterations orimprovements,  or inability to secure aproper supply of fuel, gas, steam, water, electricity, labor or supplies, or byreason of any other similar or dissimilar cause beyond the reasonable controlof Landlord.  Subject to the provisionsof Articles 13 and 14 hereof, no such stoppage or interruption shall result inany liability from Landlord to Tenant or entitle Tenant to any diminution or abatementof rent or other compensation nor shall this Lease or any of the obligations ofTenant be affected or reduced by reason of any such stoppage orinterruption.  Except in emergencycircumstances, Landlord shall give Tenant reasonable prior notice (which noticeneed not be in writing) of its intention to make any repairs, alterations orimprovements referred to in this Section 32.10 or any other stoppages ofservices of which Landlord has prior notice and shall use reasonable efforts inmaking such repairs, alterations or improvements and in dealing with such otherstoppages of service so as to minimize interference with Tenant’s businessoperations, provided that Landlord shall not be required to perform any suchwork on an overtime or premium-pay basis. Notwithstanding the foregoing provisions of this Section 32.8, ifthe demised premises is rendered untenantable, in whole or in part, for aperiod of three (3) or more consecutive business days as a result of anyinterruption of services or work performed by Landlord, then, unless caused bythe default or negligence of Tenant, its agents or employees, the fixed annualrent and Additional Rent applicable to the demised premises or the part thereofso rendered untenantable shall abate commencing on the fourth (4th) businessday that the demised premises or part thereof are untenantable, for such periodas the demised premises or part thereof shall remain untenantable or untilTenant shall occupy such portion of the demised premises for the substantially normalconduct of its business, regardless of any delay by Tenant in resuming theoperation of its business, whichever is earlier; provided, however, that if thedemised premises are rendered untenantable as a result of Force Majeure Causeswhich are not insured against under Landlord’s insurance policies for theBuilding, then, in such event, (a) the provisions of this sentence shallapply if and only if such untenantability shall be for a period of ten (10) ormore consecutive business days and (b) the fixed annual rent andAdditional Rent applicable to the demised premises or the part thereof sorendered untenantable shall abate subject to and in accordance with this Section 32.8commencing on the eleventh (11th) business day of such untenantability.  As used in this Section 32.8, the term “untenantable”shall mean

 

74

----

 

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

 

32.9.  It is expressly agreedthat providers reasonably approved by Landlord shall be permitted tofurnish:  laundry, linen, towels,drinking water, ice and other similar supplies and services to tenants andlicensees in the Building. Landlord may fix, in its own absolute discretion, atany time and from time to time, the hours during which and regulations underwhich such supplies and services are to be furnished.

 

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

 

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

 

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

 

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

 

32.14.  If and for so long asLandlord maintains a Building directory, Landlord, at Tenant’s request, shallmaintain listings on a Building directory of the names of Tenant, or itspermitted subtenants, assignees or affiliates and the names of any of theirofficers and employees, provided that the names so listed shall not use morethan The Percentage of the space on the Building directory.  The actual cost to Landlord for making anychanges in such listings requested by Tenant shall be paid by Tenant toLandlord within thirty (30) days after delivery of an invoice therefor.

 

75

----

 

ARTICLE 33

 

ARBITRATION

 

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

 

ARTICLE 34

 

CONSENTS AND APPROVALS

 

34.1.  Wherever in this LeaseLandlord’s consent or approval is required, if Landlord shall delay or refusesuch consent or approval, Tenant in no event shall be entitled to make, norshall Tenant make, any claim, and Tenant hereby waives any claim, for moneydamages (nor shall Tenant claim any money damages by way of set-off,counterclaim or defense) based upon any claim or assertion by Tenant thatLandlord unreasonably withheld or unreasonably delayed its consent orapproval.  Tenant’s sole remedy shall bean action or proceeding to enforce any such provision, for specificperformance, injunction or declaratory judgment, or to commence an arbitrationpursuant to the Expedited Procedures provisions of the Commercial ArbitrationRules of the American Arbitration Association (presently Rules 53 through 57);provided, however, that with respect to any such arbitration, (i) the listof arbitrators referred to in Rule 54 shall be returned within five (5) businessdays from the date of mailing, (ii) the parties shall notify the AmericanArbitration Association, by telephone, within four (4) days of any objectionsto the arbitrator appointed and will have no right to object if the arbitratorso appointed was on the list submitted by the American Arbitration Associationand was not objected to in accordance with the second sentence of Rule 54, (iii) theNotice of Hearing referred to in Rule 55 shall be four (4) days in advance ofthe hearing, (iv) the hearing shall be held within seven (7) days afterthe appointment of the arbitrator, and (v) the arbitrator shall have noright to award damages.  Judgment uponany decision rendered in any arbitration held pursuant to this Article shallbe final and binding upon Landlord and Tenant, whether or not a judgment shallbe entered in any court.  Each partyshall pay its own counsel fees and expenses, if any, in connection with anyarbitration under this Article, including the expenses and fees of anyarbitrator selected by it in accordance with the provisions of this Article,and the parties shall share all other expenses and fees of any sucharbitration.  The arbitrators shall bebound by the provisions of this Lease, and shall not add to, subtract from orotherwise modify such provisions.

 

76

----

 

ARTICLE 35

 

INDEMNITY

 

35.1.  Tenant shall indemnify andhold harmless Landlord and all Superior Lessors and Superior Mortgagees and itsand their respective partners, directors, officers, principals, shareholders,agents and employees from and against any and all claims arising from or inconnection with (a) the conduct or management of the demised premises orof any business therein, or any work or thing whatsoever done, or any conditioncreated (other than by Landlord, its agents, or employees) in or about thedemised premises during the term of this Lease; (b) any negligence ofTenant or any of its subtenants or licensees or its or their partners,directors, principals, shareholders, officers, agents, employees orcontractors; and (c) any accident, injury or damage whatever (except tothe extent caused by Landlord’s negligence or willful misconduct or thenegligence or willful misconduct of Landlord’s agents, employees, orcontractors) occurring in, at or upon the demised premises during the Term;together with all reasonable costs, expenses and liabilities incurred in or inconnection with each such claim or action or proceeding brought thereon,including, without limitation, all reasonable attorneys’ fees andexpenses.  In case any action orproceeding be brought against Landlord and/or any Superior Lessor or SuperiorMortgagee and/or its or their partners, directors, officers, principals,shareholders, agents and/or employees by reason of any such claim, Tenant, uponnotice from Landlord or such Superior Lessor or Superior Mortgagee, shallresist and defend such action or proceeding (by counsel reasonably satisfactoryto Landlord or such Superior Lessor or Superior Mortgagee).  The rights and obligations of Landlord andTenant contained in this Article 35 shall survive the expiration or earlytermination of this Lease.

 

35.2.  Landlord shall indemnifyand hold harmless Tenant and its and their respective partners, directors,officers, principals, shareholders, agents and employees from and against anyand all claims arising from or in connection with any willful misconduct ornegligence of Landlord, or any of its partners, directors, principals,shareholders, officers, agents, employees or contractors; together with allreasonable costs, expenses and liabilities incurred in or in connection witheach such claim or action or proceeding brought thereon, including, withoutlimitation, all reasonable attorneys’ fees and expenses.  In case any action or proceeding be broughtagainst Tenant and/or its partners, directors, officers, principals,shareholders, agents and/or employees by reason of any such claim, Landlord,upon notice from Tenant, shall resist and defend such action or proceeding (bycounsel reasonably satisfactory to Tenant). The rights and obligations of Landlord and Tenant contained in this Article 35shall survive the expiration or early termination of this Lease.

 

77

----

 

ARTICLE 36

 

CERTIFICATES

 

36.1.  Tenant shall, withoutcharge, at any time and from time to time, within ten (10) business days afterrequest by Landlord, deliver a written instrument to Landlord or any otherperson, firm or corporation specified by Landlord, duly executed andacknowledged, certifying:

 

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

 

(b)                                 whether the term of this Lease hascommenced and rent become payable thereunder; and whether Tenant has acceptedpossession of the demised premises;

 

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

 

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

 

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

 

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

 

36.2.  Landlord shall, withoutcharge, at any time and from time to time, within ten (10) business days afterrequest by Tenant, deliver a written instrument to Tenant and/or any otherperson, firm or corporation specified by Tenant, duly executed andacknowledged, certifying:

 

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

 

(b)                                 whether the term of this Lease hascommenced and rent become payable thereunder; and whether Tenant has acceptedpossession of the demised premises;

 

78

----

 

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

 

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

 

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

 

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

 

ARTICLE 37

 

NAME OF BUILDING

 

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

 

ARTICLE 38

 

MEMORANDUM OF LEASE

 

38.1.  Tenant shall not recordthis Lease or any memorandum thereof.

 

ARTICLE 39

 

BROKERAGE

 

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

 

79

----

 

ARTICLE 40

 

INVALIDITY OF ANY PROVISION

 

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

 

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

 

ARTICLE 41

 

MISCELLANEOUS

 

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

 

41.2.  It is understood andagreed that this Lease is submitted to Tenant on the understanding that itshall not be considered an offer and shall not bind Landlord in any waywhatsoever until (a) Tenant has duly executed and delivered duplicateoriginals to Landlord, and (b) Landlord has executed and delivered one ofsaid fully executed originals to Tenant.

 

41.3.  The demised premises shallnot be a reentry floor.

 

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

 

80

----

 

operateto vest any rights in any successor or assignee of Tenant and (b) theprovisions of this Article 41 shall not be construed as modifying theconditions of limitation contained in Article 19 hereof.

 

41.5.  Upon the expiration orother termination of this Lease neither party shall have any further obligationor liability to the other except as otherwise expressly provided in this Leaseand except for such obligations as by their nature or under the circumstancescan only be, or by the provisions of this Lease, may be, performed after suchexpiration or other termination; and, in any event, unless otherwise expresslyprovided in this Lease, any liability for a payment (including, withoutlimitation, additional rent under Articles 4 and 5 hereof) which shallhave accrued to or with respect to any period ending at the time of expirationor other termination of this Lease shall survive the expiration or othertermination of this Lease.

 

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

 

41.7.  Irrespective of the placeof execution or performance, this Lease shall be governed by and construed inaccordance with the laws of the State of New York.  This Lease shall be construed without regardto any presumption or other rule requiring construction against the partycausing this Lease to be drafted.  Allterms and words used in this Lease, shall be deemed to include any other numberand any other gender as the context may require.

 

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

 

41.9.  Notwithstanding anythingto the contrary contained in this Lease, during the continuance of any defaultby Tenant after the giving of notice and the expiration of any applicable graceperiods hereunder, Tenant shall not be entitled to exercise any rights oroptions, or to receive any funds or proceeds being held, under or pursuant tothis Lease.

 

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

 

81

----

 

41.11.  Any bill for additionalrent rendered by Landlord to Tenant, and any bill for services rendered toTenant by the cleaning contractor for the Building shall constitute a finaldetermination as between Landlord (or such cleaning contractor, as the case maybe) and Tenant of the accuracy and appropriateness of the additional rent orcleaning charges set forth on such bill, unless Tenant, within fourteen (14)months after such bill is furnished to Tenant, shall give a notice to Landlordthat it disputes the accuracy or appropriateness of such bill, which noticeshall specify the particular respects in which the bill is inaccurate orinappropriate.  Pending the resolution ofsuch dispute, Tenant shall pay the additional rent or cleaning charges inaccordance with the bill furnished by Landlord or the cleaning contractor forthe Building, as the case may be.  Theprovisions of this Section 41.11 shall not apply to bills for the ExpensePayment or for additional rent relating to real estate taxes, each of which aregoverned by other provisions of this Lease.

 

41.12.  Tenant acknowledges thatit has no rights to any development rights, “air rights” or comparable rightsappurtenant to the building project, and consents, without furtherconsideration, to any utilization of such rights by Landlord and agrees topromptly execute and deliver any instruments which may reasonably be requestedby Landlord, including instruments merging zoning lots, evidencing suchacknowledgment and consent.  Theprovisions of this Section 41.12 shall be deemed to be and shall beconstrued as an express waiver by Tenant of any interest Tenant may have as a “partyin interest” (as such quoted term is defined in Section 12-10 Zoning Lotof the Zoning Resolution of the City of New York) in the building project.

 

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

 

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

 

82

----

 

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

 

41.15.  (a)  Tenant shall not cause or permit “**Hazardous Materials**” (as hereafterdefined) to be used, transported, stored, released, handled, produced orinstalled in, on or from, Tenant’s premises or the Building in violation of anyapplicable laws.  The term “HazardousMaterials” shall, for the purposes hereof, mean any flammable explosives,radioactive materials, hazardous wastes, hazardous and toxic substances, orrelated materials, asbestos or any material containing asbestos, or any othersubstance or material, as defined by any federal, state or local environmentallaw, ordinance, rule or regulation including, without limitation, theComprehensive Environmental Response Compensation and Liability Act of 1980, asamended, the Hazardous Materials Transportation Act, as amended, the ResourceConservation and Recovery Act, as amended, and in the regulations adopted andpublications promulgated pursuant to each of the foregoing.  In the event of a breach of the provisions ofthis Section 41.14, Landlord shall, in addition to all of its rights andremedies under this Lease and pursuant to law, require Tenant to remove anysuch Hazardous Materials from the demised premises in the manner prescribed forsuch removal by Legal Requirements.

 

(b)                                 Landlord represents and warrants that thedemised premises and the public areas in the Building are free of HazardousMaterials.

 

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

 

ARTICLE 42

 

SECURITY

 

42.1.  Tenant shall deliver toLandlord on the Commencement Date, and Tenant shall maintain in effect at alltimes during the term hereof, as security for the full and faithful performanceand observance by Tenant of Tenant’s covenants and obligations under thisLease, an unconditional irrevocable letter of credit in the amount of SixHundred Fifty-Eight Thousand Three Hundred Forty-Four ($658,344.00)) Dollars,substantially in the form annexed hereto as Exhibit G and otherwisereasonably satisfactory to Landlord and issued by a banking corporationreasonably satisfactory to Landlord and either having its principal place ofbusiness or a duly licensed branch or agency in the borough of Manhattan, Cityand County of New York.  Such letter ofcredit shall have an expiration date no earlier than the first anniversary ofthe date of issuance thereof and shall be automatically renewed from year to yearunless terminated by the issuer thereof by notice to Landlord given not lessthan thirty (30) days prior to the expiration thereof.  Tenant shall, throughout the term of thisLease, deliver to Landlord, in the event of the termination of any such letterof credit, replacement letters of credit in lieu thereof (each such letter ofcredit and such extensions or replacements thereof, as the case may be, isherein called a “**Security Letter**”)no later than thirty (30) days prior to

 

83

----

 

theexpiration date of the preceding Security Letter.  The term of each such Security Letter shallbe not less than one (1) year and shall be automatically renewable from year toyear as aforesaid.  Notwithstanding theforegoing, if Landlord shall elect, in its sole discretion, to accept aSecurity Letter which is subject to a final expiration date, Tenant shalldeliver a replacement of or amendment to such Security Letter no later thanthirty (30) days prior to such final expiration date, and the final SecurityLetter delivered to Landlord pursuant to this Section 42.1 shall have afinal expiration date occurring not earlier than sixty (60) days following theExpiration Date of this Lease.  If Tenantshall fail to obtain any replacement of or amendment to a Security Letterwithin any of the applicable time limits set forth in this Section 42.1,Tenant shall be in default of its obligations under this Article 42 andLandlord shall have the right (but not the obligation), at its option, to drawdown the full amount of the existing Security Letter and use, apply and retainthe same as security hereunder.  Providedthat Tenant is not then in default under this Lease beyond the expiration ofany applicable notice and cure periods, Landlord shall return the SecurityLetter to Tenant on the first anniversary of the Rent Commencement Date.

 

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

 

84

----

 

oftitle 11 of the United States Code.  Toinsure that Landlord may utilize the security represented by the Security Letterin the manner, for the purpose, and to the extent provided in this Article 42,each Security Letter shall provide that the full amount or any portion thereofmay be drawn down by Landlord upon the presentation to the issuing bank (or theadvising bank, if applicable) of Landlord’s draft drawn on the issuing bankwithout accompanying memoranda or statement of beneficiary.  In no event shall the Security Letter requireLandlord to submit evidence to the issuing (or advising) bank of the truth oraccuracy of any such written statement and in no event shall the issuing bankor Tenant have the right to dispute the truth or accuracy of any such statementnor shall the issuing (or advising) bank have the right to review theapplicable provisions of this Lease.  Inno event and under no circumstance shall the draw down on or use of any amountsunder the Security Letter constitute a basis or defense to the exercise of anyother of Landlord’s rights and remedies under this Lease or under any law, ruleor regulation, including, without limitation, Landlord’s right to assert aclaim against Tenant under 11 U.S.C. §502(b)(6) or any other provision of title11 of the United States Code.

 

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

 

42.4.  If Tenant shall fully andfaithfully comply with all of Tenant’s covenants and obligations under thisLease, the Security Letter and the Cash Security (if any) shall be returned toTenant within thirty (30) days after both (i) the expiration or early terminationof this Lease and (ii) the delivery to Landlord of entire possession ofthe demised premises as provided in this Lease; provided, however, that in noevent shall

 

85

----

 

anysuch return be construed as an admission by Landlord that Tenant has performedall of its obligations hereunder.  In theevent of any sale, transfer or leasing of Landlord’s interest in the Buildingwhether or not in connection with a sale, transfer or leasing of the Land to avendee, transferee or lessee, Landlord shall transfer the Security Letter andthe Cash Security (if any) to the vendee, transferee or lessee or, in thealternative, to require Tenant to deliver a replacement Security Letter namingthe new landlord as beneficiary, and, upon such delivery by Tenant of suchreplacement Security Letter, Landlord shall return the existing Security Letterto Tenant.  Upon such transfer or returnof the Security Letter and the Cash Security (if any), Landlord shall thereuponbe released by Tenant from all liability for the return thereof, and Tenantshall look solely to the new landlord for the return of the same.  The provisions of the preceding sentenceshall apply to every subsequent sale, transfer or leasing of the Building, andany successor of Landlord may, upon a sale, transfer, leasing or othercessation of the interest of such successors in the Building, whether in wholeor in part, transfer the Security Letter and the Cash Security (if any) to anyvendee, transferee or lessee of the Building (or require Tenant to deliver areplacement Security Letter as hereinabove set forth) and shall thereupon berelieved of all liability with respect thereto. If Tenant shall fail to timely deliver such replacement Security Letter,Tenant shall be in default of its obligations under this Article 42 andLandlord shall have the right (but not the obligation), at its option, to drawdown the existing Security Letter and retain the proceeds as security hereunderuntil a replacement Security Letter is delivered.  Landlord and Tenant hereby agree that, inconnection with the transfer by Landlord or its successors or assigns hereunderof Landlord’s interest in the Security Letter, Tenant shall be solely liable topay any transfer commission and other costs charged by the issuing bank inconnection with any such transfer of the Security Letter.  Except in connection with a permittedassignment of this Lease, Tenant shall not assign or encumber or attempt toassign or encumber the security represented by the Security Letter, and neitherLandlord nor its successors or assigns shall be bound by any such assignment,encumbrance, attempted assignment or attempted encumbrance.  In any event, in the absence of evidence satisfactoryto Landlord of an assignment of the right to receive the security representedby the Security Letter, Landlord may return the Security Letter to the originalTenant regardless of one or more assignments of this Lease.

 

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

 

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

 

86

----

 

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

 

ARTICLE 43

 

ROOFTOP COMMUNICATIONS EQUIPMENT

 

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

 

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

 

(ii)                                  the installation and position of suchAntenna and reasonably required support structures shall comply with all legalrequirements;

 

(iii)                               the installation of any electrical orcommunications lines (herein called “**Wiring**”)and related equipment in connection with the installation and operation of theAntenna, as well as the manner and location (i.e., routing) of all Wiring andrelated equipment in connection therewith shall (1) be at Tenant’s costand expense, (2) be subject to Landlord’s prior consent; such consent notto be unreasonably withheld with respect to the reasonable use of the existingrisers of the Building for the routing of the Wiring from the demised premisesto the Antenna Area if and to the extent Landlord shall determine (in its goodfaith reasonable discretion) that adequate space therein is available andadequate reserves exist therein for the Building and other present and futuretenants of the Building and (3) comply with all legal requirements; and

 

87

----

 

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

 

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

 

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

 

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

 

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

 

88

----

 

of theLease.  Tenant further agrees that suchelectric service shall, at Landlord’s election, either (i) feed off a newelectrical panel to be installed by Landlord on the rooftop of the Building, inwhich event, Tenant shall be responsible for the cost of such panel and the installationof same and for the cost of all electrical service supplied to such panel bythe public utility or other electricity provider or if same is present andavailable, (ii) feed off of an existing electric supply on the rooftop ofthe Building, in which event Tenant shall pay Landlord’s reasonably estimatedcost of the electrical load and usage of the Antenna as well as the cost ofconnecting the Antenna thereto.  In theevent Landlord makes the election set forth in the preceding clause (ii),Landlord’s estimate may be increased from time to time based upon increases inthe electrical load or usage of the Antenna or increases or changes in Landlord’selectricity rates or charges (in order to determine any such increases in loador usage, Landlord may, from time to time, at Tenant’s cost and expense, haveLandlord’s electrical consultant perform a survey with respect to theelectrical load and usage of the Antenna). The estimate by Landlord set forth in clause (ii) or any changethereto by Landlord’s consultant shall be binding and conclusive on Tenant,unless within ninety (90) days after the delivery of the amount of Landlord’sestimate or any changes thereto, Tenant disputes such determination byproviding written notice of such dispute to Landlord.  If Tenant disputes the determination, itshall, at its own expense, obtain from a reputable, independent electricalconsultant its own survey of the electrical load and usage of the Antenna, anda determination of such change in the Landlord’s estimate or changethereto.  Tenant’s consultant andLandlord’s consultant then shall seek to agree on a finding of suchdetermination of a proper charge for the provision of electrical service to theAntenna.  If they cannot agree, theyshall choose a third reputable electrical consultant whose cost shall be borneby Tenant, to make a similar survey, and the determination of the charge forthe provision of electrical service to the Antenna by such third electricalconsultant shall be controlling (If they cannot agree on such third consultant,within ten (10) days, then either party may apply to the Supreme Court in theCounty of New York for the appointment of such third consultant.)  However, pending such determination, Tenant shallpay to Landlord the amount of Landlord’s estimate or any change thereto,provided, however, if the amount of the charge for the provision of electricalservice to the Antenna is determined as aforesaid is different from thatdetermined by Landlord’s electrical consultant, then Landlord and Tenant shallmake adjustment for any deficiency owed by Tenant or overage paid by Tenant.

 

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

 

89

----

 

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

 

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

 

(h) Tenant covenants and agrees that all installations made by Tenanton the rooftop of the Building or in any other part of the Building pursuant tothe provisions of this Article 43 shall be at the sole risk of Tenant, andneither Landlord nor Landlord’s agent or employees shall be liable for anydamage or injury thereto caused in any manner unless arising out of thenegligence of Landlord or Landlord’s agents or employees.

 

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

 

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

 

(k) Tenant acknowledges being advised by Landlord that Landlord hasgranted, and shall be granting, to third parties various rights and licenses toutilize various portions of the Building and rooftop thereof for theinstallation of microwave dishes, satellite communications equipment, whipantennae and other communications equipment and related equipment (all of theforegoing are herein collectively referred to

 

90

----

 

as “**Other Communications Equipment**”) andthat, inasmuch as Landlord’s ability to facilitate the installation andoperation of such Other Communications Equipment will be of paramountimportance to Landlord, Landlord shall have the right, at any time and fromtime to time, upon thirty (30) days’ prior written notice to Tenant, torelocate Tenant’s Antenna, support structures and related equipment to otherareas of the Building and rooftop thereof (provided that the Antenna shall berelocated to a portion of the rooftop), as Landlord, in its reasonablediscretion, may determine, so as to accommodate such Other CommunicationsEquipment on the roof of the Building and so as to eliminate, or not to create,problems of interference with respect to or between Other CommunicationsEquipment now, or in the future, installed on the roof or other areas of theBuilding.  Such relocation shall, to theextent practicable, be performed during hours other than Tenant’s regularbusiness hours so as to minimize any disruption of Tenant’s normal businessactivities and, except for such downtime, such relocation shall not preventTenant from using its Antenna for its original intended purpose, without anymaterial decrease in the quality of communications or material increase in thecost of operating, maintaining, repairing and removing the Antenna.  Tenant shall cooperate with Landlord toeffectuate the relocation of Tenant’s Antenna, support structures and relatedequipment as shall be required by Landlord. All costs involved in such relocation shall be borne by Landlord andsuch relocation shall be performed by Landlord in compliance with allapplicable legal requirements.

 

(l) Tenant shall not be permitted to assign or transfer all or anyportion of the rights granted to Tenant pursuant to this Article 43 unlessTenant assigns this Lease or sublets all of the demised premises to the partyto whom such rights are assigned or transferred pursuant to the applicableprovisions of this Lease

 

91

----

 

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

 
|   | Landlord                     |
|--------|------------------------------|
|   |                         |
|   | FISHER-PARK LANE OWNER  LLC  |
|   |                         |
|   | By:                          | Fisher-Park Lane  Management Corp., its  Manager |
|   |                         |
|   | By:                          |  /s/ Richard L.  Fisher |   |
|   |                         | Name: Richard L. Fisher |
|   |                         | Title: President |
|   |
|   |
|   | Tenant                       |
|   |                         |
|   | GENERAL MARITIME CORPORATION |
|   |                         |
|   | By:                          |  /s/ John C.  Georgiopoulos |   |
|   |                         | Name: John C.  Georgiopoulos |
|   |                         | Title: Chief  Administrative Officer |
|        |                              |  |  |  |  |

 

Tenant’s FederalIdentification Number is as follows: 

 

92

----

 

ACKNOWLEDGMENT

 
| State of New York)  | )    |
|---------------------|------|
|                | ):ss |
| County of New York) | )    |

 

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

 

 
|   | /s/ Dana L. Green |   |
|--------|-------------------|--------|
|   | Notary Public     |   |

 

----

 

ACKNOWLEDGMENT

 
| State of New York)  | )    |
|---------------------|------|
|                | ):ss |
| County of New York) | )    |

 

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

 

 
|   | /s/ Dana L. Green |   |
|--------|-------------------|--------|
|   | Notary Public     |   |

 

----

 

EXHIBIT A

 

FLOOR PLAN

 

 

(annexed hereto)

 

A-1

----

 

EXHIBIT B

 

CLEANING FEE CALCULATION

 

B-1

----

 

EXHIBIT C

 

WAGE RATE CALCULATION

 

C-1

----

 

EXHIBIT D

 

LANDLORD’S WORK

 

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

 

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

 

(c)                                  Causeall floors in the demised premises to be reasonably level in accordance withindustry standards.

 

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

 

(e)                                  Deliver4 original ACP-5 certificates.

 

(f)                                    Landlordshall provide Tenant with sufficient fire alarm system connection points forTenant’s present and future needs.

 

(g)                                 InstallCheck Meters.

 

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

 

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

 

D-1

----

 

EXHIBIT E

 

RULES AND REGULATIONS

 

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

 

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

 

(C)                                No sign, advertisement, notice or otherlettering shall be exhibited, inscribed, painted or affixed by any tenant onany part of the outside of the demised premises or Building or on corridorwalls.  Signs on entrance door or doorsshall conform to building standard signs, samples of which are on display inLandlord’s rental office.  Signs on doorsshall, at the tenant’s expense, be inscribed, painted or affixed for eachtenant by sign makers approved by Landlord, acting reasonably.  In the event of the violation of theforegoing by any tenant, Landlord may remove same without any liability, andmay charge the actual, out-of-pocket, reasonable expense incurred by suchremoval to the tenant or tenants violating this rule.

 

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

 

(E)                                 No show cases or other articles shall beput in front of or affixed to any part of the exterior of the Building, norplaced in the public halls, corridors or vestibules without the prior writtenconsent of Landlord.

 

(F)                                 Intentionally deleted.

 

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

 

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

 

E-1

----

 

aninterlining of builder’s deadening felt shall be first affixed to the floor, bya paste or other material, soluble in water, the use of cement or other similaradhesive material being expressly prohibited.

 

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

 

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

 

(K)                               No tenant shall make, or permit to bemade, any unseemly or disturbing noises or disturb or interfere with occupantsof the Building or neighboring buildings or premises or those having businesswith them, whether by the use of any musical instrument, radio, talkingmachine, unmusical noise, whistling, singing, or in any other way.  No tenant shall throw anything out of thedoors or windows or down the passageways.

 

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

 

(M)                            No additional locks or bolts of any kindshall be placed upon any of the doors or windows by any tenant, nor shall anychanges be made in existing locks or the mechanism thereof, without the priorwritten approval of the Landlord and unless and until a duplicate key isdelivered to Landlord.  Each tenant must,upon the termination of his tenancy, restore to the Landlord all keys ofstores, offices and toilet rooms, either furnished to, or otherwise procuredby, such tenant, and in the event of the loss of any keys so furnished, suchtenant shall pay to Landlord the cost thereof.

 

(N)                               All removals, or the carrying in or outof any safes, freight, furniture or bulky matter of any description must takeplace during the hours which Landlord or its agent may reasonably determinefrom time to time.  Landlord reserves theright to inspect all freight to be brought into the Building and to excludefrom the Building all freight which violates any of these Rules and Regulationsor the Lease of which these Rules and Regulations are a part.

 

E-2

----

 

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

 

(P)                                 Nothing shall be done or permitted in anytenant’s premises, and nothing shall be brought into or kept in any tenant’spremises, which would impair or interfere with any of the Building’s servicesor the proper and economic heating, ventilating, air conditioning, cleaning orother servicing of the Building or the premises, or the use or enjoyment by anyother tenant of any other premises, nor shall there be installed by any tenantany ventilating, air-conditioning, electrical or other equipment of any kindwhich causes any such impairment or interference.  For purposes hereof, the term “EMI” shallmean electromagnetic interference, and the term “Excessive EMI” shall mean EMIat a level exceeding thirty (30) milligaus. Tenant, at Tenant’s sole cost and expense, promptly following itsreceipt of notice from Landlord to the effect that the installation or mannerof operation of any equipment by Tenant is causing Excessive EMI in any portionof the Building other than the Premises, shall take steps to bring suchExcessive EMI below thirty (30) milligaus in a manner that is appropriate, as reasonablydetermined by Landlord.  Tenant shall notinstall any equipment or operate any equipment in a manner which would resultin the electrical voltage and current distortion at the service switchboards ofany floor of the Building failing to be within the limits stated in IEEE 519.

 

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

 

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

 

E-3

----

 

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

 

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

 

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

 

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

 

(V)                                The requirements of tenants will beattended to only upon application at the office of the Building.  Building employees shall not perform any workor do anything outside of their regular duties, unless under specialinstructions from the office of Landlord.

 

(W)                           Canvassing, soliciting and peddling inthe Building are prohibited and each tenant shall cooperate to prevent thesame.

 

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

 

E-4

----

 

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

 

(Z)                                Intentionally deleted.

 

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

 

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

 

E-5

----

 

EXHIBIT F

 

CLEANING SPECIFICATIONS

 

SECTION 1.                                Regular Cleaning - donenightly and as needed.

 

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

 

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

 

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

 

4.                                       Vacuumall exposed rugs and carpeted areas weekly, to be done in equal proportionsnightly.

 

5.                                       Dustand wipe all glass and table tops nightly.

 

6.                                       Washclean all water fountain tops nightly.

 

7.                                       Dustand wipe desk tops, furniture tops, fixtures and window sills within normalreach, as needed.

 

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

 

9.                                       Lockall entrance doors nightly after completion of cleaning.

 

SECTION 2.                                Periodic Cleaning -done as specified.

 

1.                                       Wipeclean normal amount of interior metal quarterly.

 

2.                                       Dustdoor louvers and other ventilating louvers quarterly.

 

3.                                       Dustvenetian blinds quarterly.

 

4.                                       Cleanall windows, inside and outside, quarterly.

 

5.                                       Cleannormal amount, but in no event an amount in excess of 25% of interiorpartitions, of interior and partition glass quarterly.

 

6.                                       Highdust pictures, frames, charts, graphs and similar wall hangings not reached innightly cleaning, overhead pipes and sprinklers quarterly.

 

F-1

----

 

SECTION 3.                                Lavatory cleaning, otherthan executive lavatories.

 

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

 

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

 

3.                                       Washtile walls with a disinfectant monthly.

 

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

 

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

 

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

 

7.                                       Scruball floors as needed.

 

SECTION 4.                                Building Entrances –Nightly;

 

1.                                       Sweepand wash flooring.

 

2.                                       Washall rubber mats.

 

3.                                       Cleanall cigarette urns and replace sand or water necessary (sand to be furnished byOwner or its contractors).

 

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

 

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

 

6.                                       Dustall elevator doors, mail chutes and mail depository.

 

SECTION 5.                                Window Cleaning:

 

1.                                       CleanBuilding entrance doors daily.  Clean allwindows inside and out approximately 4 times per year, weather and scaffoldingpermitting.

 

2.                                       CleanBuilding entrance lobby glass daily.

 

F-2

----

 

3.                                       Cleanmail chute glass as necessary.

 

F-3

----

 

EXHIBIT G

 

FORM OF LETTER OF CREDIT

 
|          | Standby Letter of  Credit No. |   |   |
|---------------|-------------------------------|--------|--------|
|          |                          |
|          | Date of Issue:                |   |   |
|          |
| Issuing Bank: |                          |   |
|          |
| Beneficiary:  | Applicant:                    |
|          |
|          |                          |   |   |
|          |                          |   |   |
|          |                          |   |   |
|          |                          |   |   |
| Amount: $     |                          |   |   |   |   |
|               |                               |        |        |  |  |  |  |  |  |  |  |  |

 

Dear Sir/Madam:

 

We hereby issue in yourfavor our irrevocable Letter of Credit under the above referenced number andamount which is available against presentation of your draft drawn on us atsight and bearing our Letter of Credit number             .

 

The original Letter ofCredit plus any subsequent amendments thereto must accompany such draft whenpresented for payment.  We hereby agreewith the Beneficiary that such drafts will be duly honored upon presentation tous with the original Letter of Credit plus any subsequent amendments theretowithout any further investigation.

 

It is a condition of thisLetter of Credit that it shall be deemed automatically extended withoutamendment for periods of one year each from the present or any futureexpiration date hereof, unless thirty (30) days prior to any expiration date weshall notify you in writing that we elect not to consider this Letter of Creditrenewed for any such additional period. After receipt by you of such notice, you may, until the expiration datehereof, draw the full amount of the credit hereunder, against your draft.  The final expiry date hereof shall be noearlier than         [thirty (30) daysfollowing the Expiration Date].

 

Partial drawings underthis Letter of Credit are permitted.

 

This Letter of Credit istransferable by the Beneficiary upon payment of our customary transfer chargeswhich shall be debited to the account of applicant.

 

G-1

----

 

We hereby engage with youthat all drafts drawn under and in compliance with the terms of thisirrevocable letter of credit will be duly honored if presented at our countersat **[Insert address of a New York City branch]** on or before the expiration dateindicated above.

 

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

 
|   | Very truly yours, |
|--------|-------------------|
|   |              |
|   | (Name of Bank)    |
|   |              |
|   | By:               |   |   |
|   |              | Name: |
|   |              | Title: |

 

G-2

----

 

EXHIBIT H

 

PRE-APPROVED CONTRACTORS

 

(annexed hereto)

 

H-1

----

 

TABLE OF DEFINED TERMS

 
| **1st Rental Period**                         | 2          |
|-----------------------------------------------|------------|
| **2nd Rental Period**                         | 2          |
| **3rd Rental Period**                         | 2          |
| **AAA**                                       | 21         |
| **Alterations**                               | 25         |
| **Antenna**                                   | 87         |
| **Antenna Area**                              | 87         |
| **Applicable Comparative Year**               | 14         |
| **Arbiter**                                   | 20         |
| **Assignment Profit**                         | 51         |
| **Audit Representative**                      | 20         |
| **Base Cleaning Fee**                         | 14         |
| **Base Cleaning Year**                        | 14         |
| **Base Management Fee**                       | 13         |
| **Base Rate**                                 | 65         |
| **Broker**                                    | 79         |
| **Building**                                  | 1          |
| **building project**                          | 10         |
| **Cash Security**                             | 85         |
| **Check Meters**                              | 24         |
| **Cleaning Fee**                              | 14         |
| **Commencement Date**                         | 1          |
| **control**                                   | 45         |
| **Electricity Additional Rent**               | 24         |
| **Expense Base Factor**                       | 13         |
| **Expense Payment**                           | 19         |
| **Expenses**                                  | 13         |
| **Expiration Date**                           | 1          |
| **Federal Reserve Funds**                     | 2          |
| **Force Majeure Causes**                      | 69         |
| **Hazardous Materials**                       | 83         |
| **HVAC**                                      | 71         |
| **Interest Rate**                             | 65         |
| **KW**                                        | 24         |
| **KWH**                                       | 24         |
| **Land**                                      | 9          |
| **Landlord**                                  | 1, 65 |
| **Landlord’s Cost**                      | 24         |
| **Landlord’s Restoration Work**          | 39         |
| **Landlord’s Statement**                 | 19         |
| **Landlord’s Work**                      | 5          |
| **Legal Requirements**                        | 66         |
| **LLC**                                       | 44         |
| **Management Fee**                            | 13         |
| **Marketing Notice**                          | 47         |
| **Material Alteration**                       | 26         |
| **Other Communications Equipment**            | 91         |
| **Prior Year Cleaning Fee**                   | 14         |
| **Records**                                   | 20         |
| **Rent Abatement Period**                     | 4          |
| **Rent Commencement Date**                    | 4          |
| **Roof User**                                 | 88         |
| **Rooftop Installations**                     | 88         |
| **Rules and Regulations**                     | 67         |
| **Security Letter**                           | 83         |
| **Specialty Alterations**                     | 29         |
| **Sublease Profit**                           | 51         |
| **substantially**                             | 21         |
| **substantially different from**              | 50         |
| **Successor Landlord**                        | 35         |
| **Superior Leases**                           | 34         |
| **Superior Lessor**                           | 34         |
| **Superior Mortgagee**                        | 34         |
| **Superior Mortgages**                        | 34         |
| **Tenant**                                    | 1, 67 |
| **Tenant’s Affiliate**                   | 46         |
| **Tenant’s Cost**                        | 52         |
| **Tenant’s Property**                    | 29         |
| **Tenant’s Property Removal Obligation** | 39         |
| **Tenant’s Restoration Work**            | 39         |
| **Tenant’s Statement**                   | 20         |
| **Tenant’s Work**                        | 6          |
| **The Percentage**                            | 9, 13 |
| **Union**                                     | 14         |
| **Wage Rate**                                 | 14         |
| **Wiring**                                    | 87         |
| **Work Credit**                               | 6, 7  |

 

----