**Exhibit 10.2**

 

**LEASE AGREEMENT**

 

**LEASE**

 

 

**HEARST COMMUNICATIONS, INC.,**

 

**Landlord,**

 

**with**

 

**HEARST-ARGYLE TELEVISION, INC.,**

 

**Tenant**

 

 

Leasedated as of May 5, 2006

 

 

Premises:  A Portion of the Thirty-Ninth Floor at 959Eighth Avenue (aka 300 West 57th Street), New York, New York 10019

 

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**TABLE OF CONTENTS**

 

**ARTICLE**

 
| **1.**  | **Demise;  Premises; Term; Early Termination; Rents**            | **2**  |
|---------|------------------------------------------------------------------|--------|
| **2.**  | **Use**                                                          | **4**  |
| **3.**  | **Preparation  of Premises; Tenant Improvement Allowance**       | **4**  |
| **4.**  | **Premises  Ready for Occupancy**                                | **5**  |
| **5.**  | **Adjustments  of Rent**                                         | **6**  |
| **6.**  | **Non-Liability  and Indemnification**                           | **14** |
| **7.**  | **Subordination,  Notice to Lessors and Mortgagees**             | **15** |
| **8.**  | **Quiet  Enjoyment**                                             | **21** |
| **9.**  | **Assignment  and Subletting**                                   | **21** |
| **10.** | **Compliance  with Laws and Requirements of Public Authorities** | **31** |
| **11.** | **Insurance**                                                    | **34** |
| **12.** | **Rules and  Regulations**                                       | **37** |
| **13.** | **Alterations,  Renovations and Tenant’s Changes**          | **38** |
| **14.** | **Tenant’s  Property**                                      | **41** |
| **15.** | **Repairs  and Maintenance**                                     | **42** |
| **16.** | **Electricity**                                                  | **43** |
| **17.** | **Heat,  Ventilation and Air-Conditioning**                      | **44** |
| **18.** | **Landlord’s  Other Services; Use of common Facilities**    | **45** |
| **19.** | **Access,  Changes in Building Facilities and Name, Signs**      | **46** |
| **20.** | **Notice of  Accidents**                                         | **48** |
| **21.** | **Non-Liability  and Indemnification**                           | **48** |
| **22.** | **Damage or  Destruction**                                       | **49** |
| **23.** | **Eminent  Domain**                                              | **52** |
| **24.** | **Surrender**                                                    | **54** |
| **25.** | **Conditions  of Limitation**                                    | **55** |
| **26.** | **Re-entry  by Landlord**                                        | **56** |
| **27.** | **Damages**                                                      | **57** |
| **28.** | **Waiver**                                                       | **60** |
| **29.** | **No Other  Waivers or Modifications**                           | **61** |
| **30.** | **Curing  Tenant’s Defaults**                               | **63** |
| **31.** | **Brokers**                                                      | **64** |
| **32.** | **Notices**                                                      | **64** |
| **33.** | **Estoppel  Certificate; Memorandum**                            | **65** |
| **34.** | **Arbitration**                                                  | **66** |
| **35.** | **No Other  Representations, Governing Law, Consents**           | **67** |
| **36.** | **Parties  Bound**                                               | **67** |
| **37.** | **Definitions  and Construction**                                | **68** |
| **38.** | **Excavation;  Shoring; Vaults**                                 | **69** |
| **39.** | **Right of  First Refusal**                                      | **69** |
| **40.** | **Assumption  Tenant’s Current Lease**                      | **70** |
| **41.** | **Renewal**                                                      | **70** |

 

**LEASE**

 

**LEASE**dated as of May 5, 2006, between **HEARSTCOMMUNICATIONS, INC.**, a 

 

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Delawarecorporation, having an office at 959 Eighth Avenue, New York, New York 10019(hereinafter referred to as **“Landlord”**)and **HEARST-ARGYLE TELEVISION, INC.**, a Delaware corporation, having an office at888 Seventh Avenue, New York, New York 10019 (hereinafter referred to as **“Tenant”**).

 

**WITNESSETH:**

 

**ARTICLE 1**

 

**Demise; Premises; Term; Early Termination; Rents**

 

**1.01**                                                                        Landlord hereby leases to Tenant, and Tenanthereby hires from Landlord, the premises hereinafter described, in the buildinglocated at 959 Eighth Avenue, (aka 300 West 57th Street, in theBorough of Manhattan, City, County and State of New York (hereinafter referredto as the **“Building”**), on theparcel of land more particularly described in **ExhibitA** (hereinafter referred to as the **“Land”**),of which Landlord is the fee owner, for the term hereinafter stated, for therents hereinafter reserved and upon and subject to the conditions (includinglimitations, restrictions and reservations) and covenants hereinafter provided.Each party hereby expressly covenants and agrees to observe and perform all ofthe conditions and covenants herein contained on its part to be observed andperformed.

 

**1.02**                                                                        The premises hereby leased to Tenant are approximately19,866 square feet of rentable space which comprise a portion of thethirty-ninth (39th) Floor of the Building, as shown on the floorplans annexed hereto as **Exhibit B**.Said premises together with all fixtures and equipment which at thecommencement, or during the term, of this lease are thereto attached (exceptitems not deemed to be included therein and removable by Tenant as provided inArticle 14) constitute and are hereinafter referred to as the **“Demised Premises**”.

 

**1.03****                                                                       **(a)  Theterm of this lease, for which the Demised Premises are hereby leased, shallcommence on the later of i) July 1, 2006 or ii)the date on which Landlord deliverspossession of the Demised Premises to Tenant, with a temporary certificate ofoccupancy in place permitting Tenant to use the Demised Premises(hereinafterreferred to as the **“Commencement Date”**)and shall terminate on the last day of the month following the eleventh (11th)anniversary of the Commencement Date (hereinafter referred to as the **“Expiration Date”**) or such earlier dateupon which said term may expire or be cancelled or terminated pursuant to anyof the conditions or covenants of this lease or pursuant to law.

 

(b)  Notwithstanding the foregoing, in the eventthat there is a change of control of Tenant, and The Hearst Corporation nolonger has the right to elect a majority of the members to the Board ofDirectors of Tenant, for a period of six (6) months after the date of suchchange of control, either party shall have the right to terminate this Lease bywritten notice to the other party. The effective date of termination shall bethe one-year anniversary following the giving of the notice.

 

**1.04**                                                                        The **“rents”**reserved under this lease, for the term thereof, shall be and consist of:

 

(a)                                  **“fixed rent”** as follows:

 

(i)                                                                                     $1,688,610.00 per year (payable in equalmonthly installments of $140,717.50 per month) from July 1, 2006 to andincluding June 30, 2011;

 

(ii)                                                                                  $1,787,940.00 per annum (payable in equalmonthly installments of $148,995.00 per month) from July 1, 2011 to and

 

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including June 30, 2017;

 

(b)                                 **“additional rent”** consisting of all such other sums of moneyas shall become due from and payable by Tenant to Landlord hereunder (fordefault in payment of which Landlord shall have the same remedies as for adefault in payment of fixed rent),all to be paid to Landlord at its office, orsuch other place, or to such agent and at such place, as Landlord may designateby notice to Tenant, in lawful money of the United States of America.

 

1.05                                                                           Tenant shall pay the fixed rent andadditional rent herein reserved promptly as and when the same shall become dueand payable, without demand therefor and without any abatement, deduction orsetoff whatsoever except as expressly provided in this lease.

 

1.06                                                                           Notwithstanding the foregoing, so long asTenant is not in default under the terms of this lease, the fixed rent for the twelve(12) month period following the Commencement Date (the Abatement Period) shallbe abated. In the event that Tenant shall be in default of the terms of thislease during the Abatement Period, and such default shall not be cured withinthe periods provided for herein, all fixed rent abated during the AbatementPeriod shall become due and payable.

 

**ARTICLE 2**

 

**Use**

 

**2.01**                                                                        Tenant shall use and occupy the DemisedPremises for executive and general offices and for no other purpose.

 

**2.02**                                                                        If any governmental license or permit, otherthan a Certificate of Occupancy, shall be required for the proper and lawfulconduct of Tenant’s business in the Demised Premises, or any part thereof, forany purpose other than the mere use and occupancy of the Demised Premises forexecutive and general office purposes, and if failure to secure such license orpermit would in any way affect Landlord, Tenant, at its expense, shall dulyprocure and thereafter maintain such license or permit and submit the same forinspection by Landlord. Tenant shall at all times comply with the terms andconditions of each such license or permit. Landlord and Tenant are not aware ofany such licenses or permits presently being required.

 

**2.03**                                                                        Tenant shall not at any time use or occupy,or suffer or permit anyone to use or occupy, the Demised Premises, or do orpermit anything to be done in the Demised Premises, in violation of theCertificate of Occupancy for the Demised Premises or for the Building.

 

**ARTICLE 3**

 

**Preparation of the Demised_Premises;**

**Tenant Improvement Allowance**

 

**3.01**                                                                        As of the date of execution of this Lease, TheBuilding is still under construction.

 

**3.02****                                                                       **The Demised Premises shall be completed andprepared by Landlord for Tenant’s occupancy, at Tenant’s expense, in themanner, and subject to the terms, conditions and covenants, set forth in planspreviously reviewed and approved by Landlord and Tenant**.**Theplans are attached hereto as Exhibit C**.**Thefacilities, materials and work so to be furnished, installed and performed inthe Demised Premises by Landlord are hereinafter referred to as the **“Work”.**The Work is being done by Landlord’s

 

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contractor,Turner Construction. Tenant will not be doing any work in the Demised Premises.Landlord shall use reasonable speed and diligence in preparing the DemisedPremises for Tenant’s occupancy.

 

**3.03****                                                                       **Notwithstanding the foregoing, Landlord shallgive Tenant a Tenant Improvement Allowance of $1,986,600. Such TenantImprovement Allowance shall be credited to Tenant by Landlord when thecalculations of the cost of the Work are done. Following such credit, Tenantshall pay to Landlord the excess cost of the Work within thirty (30) days ofbeing billed by Landlord.

 

**ARTICLE 4**

 

**When the****Demised Premises Ready For Occupancy**

 

**4.01**                                                                        The Demised Premises shall be deemed readyfor occupancy on the earliest date on which all of the following conditionshave been met:

 

(a)                                  the Work has been substantially completed,and is so certified by Landlord’s architect; and it shall be so deemed when allof Work is completed except for minor or insubstantial details of construction,mechanical adjustment, or decoration remain to be performed, the non-completionof which does not materially interfere with Tenant’s use of the DemisedPremises; and

 

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(b)                                 reasonable means of access and facilitiesnecessary to Tenant’s use and occupancy of the Demised Premises, includingcorridors, elevators and stairways and heating, ventilating, air conditioning,sanitary, water, and electrical facilities, have been installed and are inreasonably good operating order and available to Tenant, and are comparablewith Class A Office Buildings in Manhattan. Landlord shall give Tenant apreliminary notice, estimating when the conditions listed in Subsections (a)and (b) above will be met, on a date which shall be at least forty-five (45)days prior to the estimated date set forth in such preliminary notice. Any immaterialvariance between the date so estimated and the date such conditions are metshall be of no consequence. In the event Landlord shall send the preliminarynotice referred to herein but conditions (a) and (b) above shall actually bemet prior to the date set forth in such notice, then for purposes hereof, theconditions referred to in (a) and (b) above shall be deemed met on the date setforth in such notice.

 

**4.02**                                                                        If and when Tenant shall take actual occupancyof the Demised Premises and operate its business therein, it shall beconclusively presumed that the same were in satisfactory condition (except forlatent defects) as of the date of such taking of possession, unless withinninety (90) days after the Commencement Date Tenant shall give Landlord noticespecifying the respects in which the Demised Premises were not in satisfactorycondition.

 

**ARTICLE 5**

 

**Adjustments Of Rent**

 

**5.01**                                                                        Tax Escalation. For the purpose of Sections5.01-5.06:

 

(a)                                  **“Taxes”** shall mean the real estate taxes and assessmentsand special assessments imposed upon the Building and the Land. If at any timeduring the term of this lease the methods of taxation prevailing at thecommencement of the term hereof shall be altered so that in lieu of or as asubstitute for the whole or any part of the taxes, assessments, levies,impositions or charges now levied, assessed or imposed on real estate and theimprovements thereon, there shall be levied, assessed or imposed (i) a tax,assessment, levy, imposition or charge wholly or partially as capital levy orotherwise on the rents received therefrom, or (ii) a tax, assessment, levy,imposition or charge measured by or based in whole or in part upon the DemisedPremises and imposed upon Landlord, or (iii) a license fee measured by the rentspayable by Tenant to Landlord, then all such taxes, assessments, levies,impositions or charges, or the part thereof so measured or based, shall bedeemed to be included within the term “Taxes” for the purposes hereof;

 

(b)                                 “**Base TaxYear”** shall mean the fiscal year July 1, 2006 to June 30, 2007inclusive. The Base Tax Years shall be adjusted if the Demised Premises are notdelivered to Tenant for Tenant’s occupancy by October 1, 2006. Base Year Taxesshall be based upon a fully assessed and completed building with a permanentCertificate of Occupancy, or a temporary Certificate of Occupancy and at leastninety percent (90%) of the building occupied;

 

(c)                                  **“Tax Year”** shall mean the fiscal year for which Taxesare levied by the governmental authority;

 

(d)                                 **“Tenant’s Proportionate Share”** shall mean for purposes of this lease andall calculations in connection herewith Two and Three-Tenths percent (2.3%),which has been computed on the basis of a fraction, the numerator of which isthe agreed rentable square foot area of the Demised Premises as set forth below(which rentable square foot area is hereinafter sometimes referred to as the **“Multiplication Factor”**) and the 

 

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denominatorof which is the agreed rentable square foot area of the Building as set forthbelow. The parties agree that the rentable square foot area of the DemisedPremises shall be deemed to be 19,866 square feet and that the agreed rentablesquare foot area of the Building shall be deemed to be 856,000 square feet(hereinafter referred to as the **“BuildingArea”**).

 

(f)                                    **“Tenant’s Projected Share ofTaxes”** shall mean the TaxPayment (as hereinafter defined), if any, payable by Tenant for the immediatelyprior Tax Year divided by twelve (12) and payable monthly by Tenant to Landlordas additional rent.

 

**5.02**                                                                        If the Taxes for any Tax Year shall be morethan the Base Tax Rate for any reason whatsoever, whether foreseen orunforeseen, Tenant shall pay, as additional rent for such Tax Year, an amountequal to Tenant’s Proportionate Share of the amount by which the Taxes for suchTax Year are greater than the Base Tax Rate. (The amount payable by Tenant ishereinafter referred to as the **“Tax Payment”**.)The Tax Payment shall be appropriately prorated, if necessary, to correspondwith that portion of a Tax Year occurring within the Term of this lease. TheTax Payment shall be payable by Tenant within twenty (20) days after receipt ofa demand from Landlord therefor, which demand shall be accompanied by a copy ofthe tax bill together with Landlord’s computation of the Tax Payment. If theTaxes for any Tax Year are payable to the taxing authority on an installmentbasis, Landlord may serve such demands upon, and the Tax Payment for such TaxYear shall be payable by Tenant, on a corresponding installment basis.

 

**5.03**                                                                        Notwithstanding the fact that the increase inrent is measured by an increase in Taxes, such increase is additional rent andshall be paid by Tenant as provided herein regardless of the fact that Tenantmay be exempt, in whole or in part, from the payment of any taxes by reason ofTenant’s diplomatic or other tax exempt status or for any other reasonwhatsoever.

 

**5.04**                                                                        Only Landlord shall be eligible to institutetax reduction or other proceedings to reduce the assessed valuation of the Landand Building. Should Landlord be successful in any such reduction proceedingsand obtain a rebate or a reduction in assessment for periods during whichTenant has paid or is obligated to pay Tenant’s Proportionate Share ofincreases in Taxes then Landlord shall, in the event a rebate is obtained,return Tenant’s Proportionate Share of such rebate to Tenant after deductingLandlord’s expenses, including without limitation, attorneys’ fees anddisbursements in connection with such rebate (such expenses incurred withrespect to a rebate or reduction in assessment being hereinafter referred to as**“Tax Expenses**.

 

**5.05**                                                                        Commencing with the first Tax Year afterLandlord shall be entitled to receive a Tax Payment, Tenant shall pay toLandlord, as additional rent for the then Tax Year, Tenant’s Projected Share ofTaxes. Upon each date that a Tax Payment or an installment on account thereofshall be due from Tenant pursuant to the terms of Section 5.02 hereof, Landlordshall apply the aggregate of the installments of Tenant’s Projected Share ofTaxes then on account with Landlord against the Tax Payment or installmentthereof then due from Tenant.

 

In the event that such aggregate amount shallbe insufficient to discharge such Tax Payment or installment, Landlord shall sonotify Tenant in a demand served upon Tenant pursuant to the terms of Section5.02, and the amount of Tenant’s payment obligation with respect to such TaxPayment or installment pursuant to Section 5.02 shall be equal to the amount ofthe insufficiency. If, however, such aggregate amount shall be greater than theTax Payment or installment, Landlord shall forthwith either (a) pay the amountof excess (the **“Excess”**) directlyto Tenant concurrently with the notice or (b) permit Tenant to credit theExcess against the next payment of Tenant’s Projected Share of Taxes duehereunder and, if the credit of such payment is not sufficient to liquidate theentire amount of the Excess, Landlord shall then pay the amount 

 

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of any difference to Tenant. In the event anyExcess remains after the Expiration Date, Landlord shall pay the Excess toTenant promptly.

 

**5.06****                                                                                                                       **(a)                                  Anything in this Article 5 to the contrarynotwithstanding, in the event that the holder of any superior mortgage or thelessor of any superior lease (as such terms are defined in Section 7.0l hereof)shall require advance payments from the Landlord on account of Taxes, thenTenant will pay Tenant’s Proportionate Share of any amounts required to be paidin advance by Landlord with the holder of the superior mortgage or the lessorof the superior lease to the extent that such payments made by Landlord exceedthe Base Tax Rate. Any payments to be made by Tenant under this Section 5.06(a)shall be made ten (l0) days prior to the date Landlord is required to make suchpayments to the holder of the superior mortgage or the lessor of the superiorlease. There are presently no superior mortgage or lease holders with an interestin the Building or the Land;

 

(b)                                 Anything in Sections 5.01 through 5.06 to thecontrary notwithstanding, in no event whatsoever shall the fixed rent bereduced below the fixed rent initially set forth in Section 1.04(a) hereof assame may be increased by provisions of this Lease other than Sections 5.01through 5.06.

 

**5.07****                       ****Expense Escalation****.**                                      For purposes of this Article:

 

(a)                                  **“Operating Expenses”** shall mean any or all expenses incurred byLandlord in connection with the operation of the Building, with at least 90% ofthe Building’s non-retail rentable footage leased and occupied, including allexpenses incurred as a result of Landlord’s compliance with any of itsobligations hereunder and such expenses shall include:  (i) salaries, wages, medical, surgical andgeneral welfare benefits, (including group life insurance) pension payments andother fringe benefits of employees of Landlord up to the grade of BuildingManager only engaged in the operation and maintenance of the Building (Thesalaries and other benefits aforesaid of such employees servicing the Buildingshall be comparable to those of employees servicing buildings similar to theBuilding, located in the Borough of Manhattan); (ii) payroll taxes, workmen’scompensation, uniforms and dry cleaning for the employees referred to insubdivision (i); (iii) the cost of all charges for steam, heat, ventilation,air conditioning and water (including sewer rental) furnished to the Buildingand/or used in the operation of all of the service facilities of the Buildingand the cost of all charges for electricity furnished to the public and serviceareas of the Building and/or used in the operation of all of the servicefacilities of the Building including any taxes on any of such utilities; (iv)the cost of all charges for rent, casualty, war risk insurance (if obtainablefrom the United States government) and of liability insurance for the Buildingto the extent that such insurance is required to be carried by Landlord underany superior lease or superior mortgage or if not required under any superiorlease or superior mortgage then to the extent such insurance is carried byowners of Buildings comparable to the Building; (v) the cost of all buildingand cleaning supplies for the common areas of the Building and charges fortelephone for the Building; (vi) the cost of all charges for management,security, cleaning and service contracts for the Building (if no managing agentis employed by Landlord, there shall be included in Operating Expenses a sumequal to 2.5% of all rents, additional rents and other charges collected fromtenants or other permitted occupants of the Building); (vii) the amortized costof rentals of capital equipment designed to result in savings or reductions inOperating Expenses: (viii) the cost incurred in connection with the maintenanceand repair of the Building and (ix) the cost of Tenant’s use of the Buildingamenities listed in Section 18.06. Operating Expenses shall not include (A)administrative wages and salaries, above the level of building manager; (B)renting commissions; (C) franchise taxes or income taxes of Landlord; (D) Taxeson the Land and Building; (E) costs of painting and decorating expenditures forcapital improvements except (1) those which under generally applied real estatepractice are expenses or regarded as deferred 

 

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expensesand (2) for capital improvements required by law or (3) for capitalimprovements which are designed to result in a saving in the amount ofOperating Expenses, in any of such cases the cost thereof shall be included inOperating Expenses for the Operational Year in which the costs are incurred andsubsequent Operational Years, on a straight line basis, to the extent that suchitems are amortized over an appropriate period, but not more than ten years,with an interest factor equal to the Landlord’s actual cost of capital at thetime of Landlord’s having incurred said expenditure;

 

(b)                                 **“Operational Year”** shall mean each calendar year or part thereofoccurring during the Term of this lease;

 

(c)                                  **“Base Operational Year”** shall mean calendar year 2007, or such lateryear as the Building non-retail rentable square footage is leased and occupied;

 

(d)                                 **“Base Operating Expenses”** shall mean Operating Expenses for the BaseOperational Year;

 

(e)                                  **“Tenant’s OperationalProportionate Share”** shallmean 2.3%;

 

(f)                                    **“Actual Operating ExpenseDifferential”** shall mean theamount by which the Operating Expenses actually incurred by Landlord for therecently expired Operational Year actually exceeded the Base OperatingExpenses;

 

(g)                                 **“Tenant’s Projected Share ofOperating Expense Increase”**shall mean one-twelfth (1/12th) of the product of (i) Tenant’s OperationalProportionate Share, multiplied by (ii) the Actual Operating ExpenseDifferential for the recently expired Operational Year; and

 

(h)                                 **“Tenant’s Initial ProjectedShare of Operating Expense Increase”** shall mean one-twelfth (1/12th) of the product of (i) Tenant’sOperational Proportionate Share multiplied by (ii) Landlord’s reasonableestimate of anticipated increases in Operating Expenses during the initialOperational Year over Operating Expenses in the prior calendar year;

 

(i)                                     **“Tenant’s Actual Share of OperatingExpense Increase”** shall meanthe product of (i) the Actual Operating Expense Differential multiplied by (ii)Tenant’s Operational Proportionate Share;

 

**5.08**                                                                        (a)                                  After the expiration of the Base Operationalyear, Landlord shall furnish Tenant with a written detailed statement(hereinafter referred to as the “Initial Operating Statement”) certified byLandlord’s accountant as being true and correct indicating (i) Base OperatingExpenses, and (ii) Landlord’s computation of Tenant’s Initial Projected Shareof Operating Expense Increase for the upcoming Operational Year;

 

(b)                                 After the expiration of the first OperationalYear and each Operational year thereafter, Landlord shall furnish Tenant with awritten detailed statement (hereinafter referred to as a **“Subsequent Operating Statement”**) certifiedby Landlord’s accountant as being true and correct indicating (i) actual amountof Operating Expenses for the recently expired Operational Year, (ii) Landlord’scomputation of Tenant’s Projected Share of Operating Expense Increase for theupcoming Operational Year, and (iii) the amount of any discrepancy betweenTenant’s Actual Share of Operating Expense Increase and Tenant’s InitialProjected Share of Operating Expense Increase and Tenant’s Initial ProjectedShare of Operating Expense Increase or Tenant’s Projected Share of OperatingExpense Increase, as the case may be, for the recently expired Operationalyear.

 

(c)                                  Payments of rental in accordance with the 

 

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InitialOperating Statement and Subsequent Operating Statements shall be made at thetimes specified in Section 5.09.

 

**5.09**                                                                        (a)                                  Tenant shall pay to Landlord, as additionalrent during the first Operational year Tenant’s Initial Projected Share ofOperating Expense Increase, which shall be payable in equal monthlyinstallments the first payment representing the payments retroactive to thefirst day of the current Operational Year and including the current month shallbe made twenty (20) days after Tenant receives the Initial Operating Statement,and thereafter normal monthly payments shall be made on the first day of eachmonth throughout the upcoming Operational Year and thereafter until receipt ofthe first Subsequent Operating Statement. If the first Subsequent OperatingStatement furnished by Landlord to Tenant for the recently expired OperationalYear shall indicate that Tenant’s Initial Projected Share of Operating ExpenseIncrease exceeded Tenant’s Actual Share of Operating Expense Increase, Landlordshall forthwith either (a) pay the amount of excess directly to Tenantconcurrently with the first Subsequent Operating Statement or (b) permit Tenantto credit the amount of such excess against the subsequent payments of rent duehereunder. If, however, the first Subsequent Operating Statement shall indicatethat Tenant’s Actual Share of Operating Expense Increase exceeded Tenant’sInitial Projected Share of Operating Expense Increase, Tenant shall, within twenty(20) days, pay the amount of such excess to Landlord as additional rent;

 

(b)                                 Tenant shall pay to Landlord, as additionalrent during each subsequent Operational year, Tenant’s Projected Share ofOperating Expense Increase, which shall be payable in equal monthlyinstallments, the first payment representing the payments retroactive to thefirst day of the current Operational Year and including the current month aftercrediting Tenant with payments made for the current Operational Year but priorto the receipt of a Subsequent Operating Statement, and which shall be made twenty(20) days after Tenant receives a Subsequent Operating Statement, andthereafter normal monthly payments shall be made on the first day of each monththroughout the upcoming Operational Year and thereafter until receipt of thenext Subsequent Operating Statement. If a Subsequent Operating Statementfurnished by Landlord to Tenant for a recently expired Operational Year shallindicate that Tenant’s Projected Share of Operating Expense Increase ExceededTenant’s Actual Share of Operating Expense increase, Landlord shall forthwitheither (a) pay the amount of excess directly to Tenant concurrently with theSubsequent Operating Statement or (b) permit Tenant to credit the amount ofsuch excess against the subsequent payments of rent due hereunder. Any excessattributable to the last Operational Year (or part thereof) occurring duringthe term of this Lease, provided Tenant shall not exercise any of its renewaloptions set forth in Article 39 hereof or such renewal options shall not apply,shall be paid by Landlord to Tenant within thirty (30) days after delivery ofthe final Subsequent Operating Statement provided Tenant shall have surrenderedpossession of the Demised Premises to Landlord in the manner required hereunderand further provided Tenant shall not then be in default of any of the terms,covenants or conditions of this Lease on Tenant’s part to observe or performafter the giving of any required notice and expiration of any applicable graceor cure period. If, however, the Subsequent Operating Statement shall indicatethat Tenant’s Actual Share of Operating Expense Increase exceeded Tenant’sProjected Share of Operating Expense Increase, Tenant shall, within twenty (20)days, pay the amount of such excess to Landlord as additional rent;

 

(c)                                  Anything in Sections 5.07 through 5.11 to thecontrary notwithstanding, in no event whatsoever shall the fixed rent bereduced below the fixed rent initially set forth in Section 1.04(a) hereof assame may be increased by provisions of this lease other than Sections 5.07through 5.11. The amounts payable pursuant to Sections 5.07 through 5.11 shallbe prorated, if necessary, to correspond with that portion of an OperationalYear occurring within the term of this lease.

 

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**5.10**                                                                        The Initial Operating Statement and everySubsequent Operating Statement given by Landlord shall be conclusive andbinding upon Tenant unless Tenant shall (a) notify Landlord within sixty (60)days after its receipt of such statement that it disputes the correctnessthereof, specifying the particular respects in which the statement is claimedto be incorrect and (b) submit its dispute to arbitration within one hundredtwenty (120) days after its receipt of the Initial Operating Statement orSubsequent Operating Statement, as the case may be, if such dispute shall nottheretofore be settled by agreement between Landlord and Tenant. Pending theresolution of such dispute by agreement or arbitration as aforesaid, Tenantshall, within ten (10) days after receipt of such disputed Initial OperatingStatement or Subsequent Operating Statement, as the case may be, pay anyadditional rent due in accordance therewith, but such payment shall be withoutprejudice to Tenant’s right to dispute such statement. If the dispute shall beresolved in Tenant’s favor, Landlord shall, within ten (10) days after Tenant’sdemand, pay Tenant the amount of the overpayment, if any, resulting from Tenant’scompliance with the disputed Initial Operating Statement or SubsequentOperating Statement. Landlord agrees to grant Tenant reasonable access toLandlord’s books and records with respect to the Building for the purpose ofverifying Operating Expenses incurred by Landlord. In the event of any disputesubmitted to arbitration hereunder, Landlord shall make its books and recordsgoverning Operating Expenses available for inspection at least thirty (30) daysprior to a scheduled arbitration hearing.

 

5.11                                                                           Landlord’s failure during the lease term toprepare and deliver any of the tax bills, statements, notice or bills set forthin this Article 5, or Landlord’s failure to make a demand, shall not in any waycause Landlord to forfeit or surrender its rights to collect any of theforegoing items of additional rent which may have become due during the term ofthis lease. Notwithstanding the foregoing, if Landlord shall fail to deliver toTenant any bill, notice, statement or demand for a period of three (3) yearsfollowing the expiration of the period for which the tax or operating costs aredue, Landlord shall waive its right to collect such amounts from Tenant. Tenant’sliability for the amounts due under this Article 5 shall survive the expirationof the Term.

 

5.12                                                                           Tenant shall also pay as additional rent acharge for electrical use of $59,598 per year, payable in equal monthlyinstallments of $4,966.50.

 

**ARTICLE 6**

 

**Non-Liability and Indemnification**

 

**6.01**                                                                        Neither Landlord nor any agent or employee ofLandlord shall be liable to Tenant for any injury or damage to Tenant or to anyother person or for any damage to, or loss (by theft or otherwise) of, anyproperty of Tenant or of any other person, irrespective of the cause of suchinjury, damage or loss, unless caused by or due to the negligence or willfulacts of Landlord, its agents or employees occurring within the scope of theirrespective employments without negligence on the part of Tenant, it beingunderstood that no property, other than such as might normally be brought uponor kept in the Demised Premises as an incident to the reasonable use of theDemised Premises for the purpose herein permitted and use related to Tenant’sbusiness, will be brought upon or be kept in the Demised Premises.

 

**6.02**                                                                        (a) Tenant shall indemnify and save harmlessLandlord and its agents against and from (a) any and all claims (i) arising from(x) the conduct or management of the Demised Premises or of any businesstherein, or (y) any work or thing whatsoever done, or any condition created(other than by Landlord for Landlord’s or Tenant’s account) in or about theDemised Premises during the term of this Lease or during the period of time, ifany, prior to the Commencement Date that Tenant may have been given access tothe Demised Premises, or (ii) arising from any negligent or otherwise wrongfulact 

 

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oromission of Tenant or any of its subtenants or licensees or its or theiremployees occurring within the scope of their respective employments, agents orcontractors, and (b) all costs, expenses and liabilities (including reasonableattorneys fees) incurred in or in connection with each such claim or action orproceeding brought thereon. In case any action or proceeding be brought againstLandlord by reason of any such claim, Tenant, upon notice from Landlord, shallresist and defend such action or proceeding.

 

(b) Landlord shall indemnifyand save harmless Tenant from and against any and all claims arising from Landlord’snegligence or willful act.

 

**6.03**                                                                        Except as otherwise expressly provided inthis Lease, this Lease and the obligations of Tenant hereunder shall be in nowise affected, impaired or excused because Landlord is unable to fulfill, or isdelayed in fulfilling, any of its obligations under this Lease by reason ofstrike, other labor trouble, governmental pre-emption or priorities or othercontrols in connection with a national or other public emergency or shortagesof fuel, supplies or labor resulting therefrom, acts of God or other like causebeyond Landlord’s reasonable control. Notwithstanding the foregoing, if therehas been a continuous major interruption in services due to the causes statedin this Section 6.03, resulting in Tenant being unable to carry out itsbusiness, for a period exceeding six (6) months, Tenant shall have the right toterminate this Lease on written notice to Landlord.

 

**ARTICLE 7**

 

**Subordination, Notice To Lessors And Mortgagees**

 

**7.01**                                                                        This lease, and all rights of Tenanthereunder, are and shall be subject and subordinate in all respects to allground leases, overriding leases and underlying leases of the Land and/or theBuilding now or hereafter existing and to all mortgages which may now orhereafter affect the Land and/or the Building and/or any of such leases,whether or not such mortgages shall also cover other lands and/or buildings, toeach and every advance made or hereafter to be made under such mortgages, andto all renewals, modifications, replacements and extensions of such leases andsuch mortgages and spreaders and consolidations of such mortgages. This Sectionshall be self-operative and no further instrument of subordination shall berequired. In confirmation of such subordination, Tenant shall promptly executeand deliver any instrument that Landlord, the lessor of any such lease or theholder of any such mortgage or any of their respective successors in interestmay reasonably request to evidence such subordination. The leases to which thislease is, at the time referred to, subject and subordinate pursuant to thisArticle are hereinafter sometimes referred to as**“superior leases”** and the mortgages to which this lease is,at the time referred to, subject and subordinate are hereinafter sometimesreferred to as **“superior mortgages”**and the lessor of a superior lease or its successor in interest at the timereferred to is sometimes hereinafter referred to as a **“lessor”**.

 

**7.02**                                                                        In the event of any act or omission of Landlordwhich would give Tenant the right, immediately or after lapse of a period oftime, to cancel or terminate this lease, or to claim a partial or totaleviction, Tenant shall not exercise such right (i) until it has given writtennotice of such act or omission to the holder of each superior mortgage and thelessor of each superior lease whose name and address shall previously have beenfurnished to Tenant in writing, and (ii) unless such act or omission shall beone which is not capable of being remedied by Landlord or such mortgage holderor lessor within a reasonable period of time, until a reasonable period forremedying such act or omission shall have elapsed following the giving of suchnotice and following the time when such holder or lessor shall have becomeentitled under such superior mortgage or superior lease, as the case may be, toremedy the same (which reasonable period shall in no event be 

 

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lessthan the period to which Landlord would be entitled under this lease orotherwise, after similar notice, to effect such remedy), provided such holderor lessor shall with due diligence give Tenant written notice of intention to, andcommence and continue to remedy such act or omission.

 

**7.03**                                                                        If the lessor of a superior lease or theholder of a superior mortgage shall succeed to the rights of Landlord underthis lease, whether through possession or foreclosure action or delivery of anew lease or deed, then at the request of such party so succeeding to Landlord’srights (herein sometimes referred to as **“successorlandlord”**) and upon successor landlord’s written agreement to acceptTenant’s attornment, Tenant shall attorn to and recognize such successorlandlord as Tenant’s landlord under this lease, and shall promptly execute anddeliver any instrument that such successor landlord may reasonably request toevidence such attornment. Upon such attornment this lease shall continue in fullforce and effect as, or as if it were, a direct lease between the successorlandlord and Tenant upon all of the terms, conditions and covenants as are setforth in this lease and shall be applicable after such attornment except thatthe successor landlord shall not:

 

(a)                                  be liable for any previous act or omission ofLandlord under this lease;

 

(b)                                 be subject to any offset, not expresslyprovided for in this lease, which shall have theretofore accrued to Tenantagainst Landlord;

 

(c)                                  be bound by any previous modification of thislease, not expressly provided for in this lease, or by any previous prepaymentof more than one month’s fixed rent, unless such modification or prepaymentshall have been expressly approved in writing by the lessor of the superior leaseor the holder of the superior mortgage through or by reason of which thesuccessor landlord shall have succeeded to the rights of Landlord under thislease.

 

**7.04**                                                                        Landlord represents to Tenant that as of thedate hereof, Landlord is the fee owner of both the Land and the Building and thereare no superior leases affecting Landlord’s interest in the Land or Building.

 

**7.05****                                                                                                                       **(a)                                  The subordination of this lease to superiorleases hereafter existing in accordance with Section 7.0l is subject to theexpress conditions that so long as this lease shall be in full force and effectin the event of termination of the term of any such superior lease by reentry,notice, summary proceedings, or other action or proceeding, or if the term ofsuch superior lease shall otherwise terminate or expire before the terminationor expiration of the term of this lease, (i) Tenant shall not be made a partyto any action or proceeding to remove or evict Tenant or the tenant under suchsuperior lease, or to disturb its possession by reason of, or based upon, suchtermination or expiration of the term of such superior lease, and (ii) thislease shall continue in full force and effect as a direct lease between Tenantand the then owner of the fee or lessor of such superior lease, as the case maybe, upon all of the obligations of this lease, except that said owner or lessorshall not:

 

(x)                                   be liable for any previous act or omission ofany prior landlord (including Landlord) under this lease;

 

(y)                                 be subject to any offset, not expresslyprovided for in this lease, that shall have theretofore accrued to Tenantagainst Landlord; or

 

(z)                                   be bound by (1) any previous modification ofthis 

 

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lease,not expressly provided for in this lease or consented to by such owner orlessor, or (2) any previous prepayment of more than one month’s fixed rent orany additional rent then due, unless such modification or prepayment shall havebeen expressly approved in writing by the lessor of the superior lease through,or by reason of which, said owner or lessor shall have succeeded to the rightsof Landlord under this lease.

 

(b)                                 If requested by the then owner of the fee orthe lessor of such superior lease, or any mortgage holder, Tenant and suchowner or lessor shall execute and deliver a non-disturbance agreement with suchowner or lessor on the terms set forth in this Section 7.05 plus suchadditional terms and provisions as are then customarily contained in such owner’sor lessor’s form of non-disturbance agreement.

 

**7.06****                                                                                                                       **(a)                                  The subordination of this lease to the liensof superior mortgages hereafter existing in accordance with Section 7.0l issubject to the express condition that, so long as this lease shall be ineffect: (i) Tenant shall not be named or joined in any action or proceeding toforeclose any such mortgage,(ii) such action or proceeding shall not result in a cancellation ortermination of the term of this lease, and (iii) if the holder of any suchmortgage becomes the owner of the fee or the assignee of any superior leasereferred to in Section 7.0l, or the lessee of any other lease given insubstitution therefor, or if the Land or the Building shall be sold as a resultof any action or proceeding to foreclose such mortgage, this lease shallcontinue in full force and effect as a direct lease between Tenant and the thenowner of the fee or the then lessee of such superior lease, the lessee of anyother lease given in substitution therefor, or such purchaser of the Land orBuilding, as the case may be, upon all of the obligations of this lease, exceptthat such owner, lessee, or purchaser shall not:

 

(x)                                   be liable for any previous act or omission ofany prior landlord (including Landlord) under this lease;

 

(y)                                 be subject to any offset, not expresslyprovided for in this lease, that shall have theretofore accrued to Tenantagainst Landlord; or

 

(z)                                   be bound by (1) any previous modification ofthis lease entered into after the date of such superior mortgage, unless suchmodification is expressly provided for in this lease or consented to by suchowner, lessee or purchaser or (2) any previous prepayment of more than onemonth’s fixed rent or any additional rent then due, unless such modification orprepayment shall have been expressly approved in writing by the holder of thesuperior mortgage through or by reason of which, such owner, lessee, orpurchaser shall have succeeded to the rights of Landlord under this lease.

 

(b)                                 If requested by the holder of any suchmortgage, Tenant shall execute and deliver a non-disturbance agreement withsuch holder on the terms set forth in this Section 7.06, plus such additionalterms and provisions as are then customarily contained in such holder’s form ofnon-disturbance agreement.

 

**7.07**                                                                        Provided Landlord shall not incur any expense(unless Tenant agrees in writing to pay and thereafter on Landlord’s demand,does pay such expense) or be required to renegotiate or modify the provisionsof any superior mortgage, Landlord agrees that it will request and thereafterdiligently pursue from the holder of any superior mortgage a non-disturbanceagreement on such holder’s then customary form for the benefit of Tenant, tothe effect that as long as Tenant is not in default after notice and theexpiration of any applicable cure period in the payment of fixed rent oradditional rent or any of the other covenants and conditions of this Lease, itsrights as Tenant hereunder shall not be terminated or materially reduced andits rights shall not be materially increased and the possession of Tenant 

 

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shallnot be disturbed by the holder of such superior mortgage or by any proceedingson the debt which any such mortgage secures or by virtue of a right or powercontained in any such mortgage or the bond or note secured thereby and that anysale at foreclosure will be subject to this Lease. No non-disturbance agreementshall materially modify or materially reduce Tenant’s rights under this Leaseor materially increase Tenant’s obligations hereunder. Any form of agreementexecuted by Tenant and such holder pursuant to the provisions of this Section7.07 shall be deemed to satisfy the conditions hereof.

 

**7.08**                                                                        Provided Landlord has requested and diligentlypursued a non-disturbance agreement from the holder of any superior mortgagefor the benefit of Tenant as provided in Paragraph 7.07, the inability ofLandlord to obtain the agreement referred to in Section 7.07 above, shall notbe deemed a default on Landlord’s part of its obligations hereunder, or imposeany claim in favor of Tenant against Landlord by reason thereof or affect thevalidity of this Lease.

 

**ARTICLE 8**

 

**Quiet Enjoyment**

 

**8.01**                                                                        So long as Tenant pays all of the fixed rentand additional rent due hereunder and performs all of Tenant’s otherobligations hereunder, Tenant shall peaceably and quietly have, hold and enjoythe Demised Premises subject, nevertheless, to the obligations of this leaseand, as provided in Article 7, to the superior leases and the superiormortgages.

 

**ARTICLE 9**

 

**Assignment And Subletting**

 

**9.01**                                                                        Tenant, for itself, its heirs, distributees,executors, administrators, legal representatives, successors and assigns,expressly covenants that it shall not assign, mortgage or encumber thisagreement, nor underlet, nor suffer, nor permit the Demised Premises or anypart thereof to be used or occupied by others, without the prior writtenconsent of Landlord in each instance, which consent may be withheld by theLandlord for any or no reason, at its sole discretion. Only in the event of achange in majority control of Tenant, shall Landlord be required to agree to anassignment of this Lease, subject to the termination rights stated in Section1.03. Under no circumstances shall such successor holder of a majority interestin Tenant be permitted to further assign this Lease, or sublet any portion ofthe Premises. If this lease be assigned, or if the Demised Premises or any partthereof be underlet or occupied by anybody other than Tenant, Landlord may,after default by Tenant, collect rent from the assignee, undertenant oroccupant, and apply the net amount collected to the rent herein reserved, butno assignment, underletting, occupancy or collection shall be deemed a waiverof the provisions hereof, the acceptance of the assignee, undertenant oroccupant as tenant, or a release of Tenant from the further performance byTenant of covenants on the part of Tenant herein contained. The consent byLandlord to an assignment or underletting shall not in any way be construed torelieve Tenant from obtaining the express consent in writing of Landlord to anyfurther assignment or underletting. In no event shall any permitted sublesseeassign or encumber its sublease or further sublet all or any portion of itssublet space, or otherwise suffer or permit the sublet space or any partthereof to be used or occupied by others, without Landlord’s prior writtenconsent in each instance. Notwithstanding the foregoing, Tenant shall bepermitted to sublease portions of the Demised Premises to affiliates of Tenant,“affiliates” being defined as entities under the control of, controlled by, orunder common control with Tenant.

 

**9.02**                                                                        (a) Subject to Section 9.02(b), if Tenantshall at any 

 

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timeor times during the term of this lease desire to assign this lease or subletall or part of the Demised Premises, Tenant shall give notice thereof toLandlord, which notice shall be accompanied by (a) a conformed or photostaticcopy of the proposed assignment or sublease, the effective or commencement dateof which shall be not less than 30 nor more than 180 days after the giving ofsuch notice, (b) a statement setting forth in reasonable detail the identity ofthe proposed assignee or subtenant, the nature of its business and its proposeduse of the Demised Premises, and (c) current financial information with respectto the proposed assignee or subtenant, including, without limitation, its mostrecent financial report. Such notice shall be deemed an offer from Tenant toLandlord whereby Landlord (or Landlord’s designee) may, at its option, (i)sublease such space (hereinafter referred to as the **“Leaseback Space”**) from Tenant upon the terms and conditionshereinafter set forth (if the proposed transaction is a sublease of all or partof the Demised Premises), (ii) terminate this lease (if the proposedtransaction is an assignment or a sublease of all or substantially all of theDemised Premises), or (iii) subject to the further provisions of this Section9.02 terminate this lease with respect to the Leaseback Space (if the proposedtransaction is a sublease of part of the Demised Premises expiring within thelast two (2) years of the original term or the “Renewal Term” of this Lease andTenant has not exercised the “Renewal Option” with respect to the originalterm, as such quoted terms are hereinafter defined). Said options 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 during such thirty(30) day period Tenant shall not assign this lease nor sublet such space to anyperson.

 

(b)  Provided Tenant shall not then be in defaultof any of the terms, covenants or conditions of this lease on the Tenant’s partto observe or perform, Landlord agrees that it shall not exercise its optionsunder this Section 9.02 with respect to subleases proposed by Tenant, providedsuch sublease(s), when aggregated with all other subleases entered into (orthen pending) by Tenant, do(es) not exceed fifteen thousand two hundred eightysix (15,286) rentable square feet.

 

**9.03**                                                                        If Landlord exercises its option to terminatethis lease in the case where Tenant desires either to assign this lease orsublet all or substantially all of the Demised Premises, then, this lease shallend and expire on the date that such assignment or sublet was to be effectiveor commence, as the case may be, and the fixed rent and additional rent shallbe paid and apportioned to such date and the parties shall thereafter owe nofurther obligations to the other except as provided to the contrary in thislease.

 

**9.04**                                                                        If Landlord exercises its option to terminatethis lease in part in any case where Tenant desires to sublet part of theDemised Premises, then, (a) this lease shall end and expire with respect tosuch part of the Demised Premises on the date that the proposed sublease was tocommence and the parties shall thereafter owe no further obligations to theother except as provided to the contrary in this lease; (b) from and after suchdate the fixed rent and additional rent shall be adjusted, based upon theproportion that the rentable area of the Demised Premises remaining bears tothe total rentable area of the Demised Premises; and (c) Landlord, at Tenant’sexpense shall make such alterations as may be required or deemed reasonablynecessary by Landlord to physically separate such part of the Demised Premisesfrom the balance of the Demised Premises and in complying with any laws andrequirements of any public authorities relating to such separation, providedTenant or the proposed sublessee was required to physically separate such partof the Demised Premises from the balance of the Demised Premises under theproposed sublease, but if such subletting did not require Tenant or theproposed sublessee to physically separate such part of the Demised Premisesfrom the balance of the Demised Premises, then Landlord shall cause suchportion of the Demised Premises to be physically separated at the Landlord’sexpense.

 

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**9.05**                                                                        If Landlord exercises its option to subletthe Leaseback Space, such sublease to Landlord or its designee (as subtenant)(hereinafter referred to as the **“RecaptureSublessee”**) shall be at the lower of (i) the rental rate perrentable square foot of fixed rent and additional rent then payable pursuant tothis lease or (ii) the rentals set forth in the proposed sublease, and shall be for the same term as that of theproposed subletting, and such sublease shall:

 

(a)                                  be expressly subject to all of the covenants,agreements, terms, provisions and conditions of this lease except such as areirrelevant or inapplicable, and except as otherwise expressly set forth to thecontrary in this Section;

 

(b)                                 be upon the same terms and conditions asthose contained in the proposed sublease, except such as are irrelevant orinapplicable and except as otherwise expressly set forth to the contrary inthis Section;

 

(c)                                  give the Recapture Sublessee the unqualifiedand unrestricted right, without Tenant’s permission, to assign such sublease orany interest therein and/or to sublet the Leaseback Space or any part or partsof the Leaseback Space and to make any and all changes, alterations, andimprovements in the space covered by such sublease and if the proposed subleasewill result in all or substantially all of the Demised Premises being sublet,grant Landlord or its designee the option to extend the term of such subleasefor the balance of the term of this lease less one (1) day;

 

(d)                                 provide that any assignee or furthersubtenant, of Landlord or its designee, may, at the election of Landlord, bepermitted to make alterations, decorations and installations in the LeasebackSpace or any part thereof and shall also provide in substance that any suchalterations, decorations and installations in the Leaseback Space therein madeby any assignee or subtenant of Landlord or its designee may be removed, inwhole or in part, by such assignee or subtenant, at its option, prior to orupon the expiration or other termination of such sublease provided that suchassignee or subtenant, at its expense, shall repair any damage and injury tothat portion of the Leaseback Space so sublet caused by such removal; and

 

(e)                                  also provide that (i) the parties to suchsublease expressly negate any intention that any estate created under suchsublease be merged with any other estate held by either of said parties, (ii)any assignment or subletting by Landlord or its designee (as the subtenant) maybe for any purpose or purposes that Landlord, in Landlord’s uncontrolleddiscretion, shall deem suitable or appropriate, (iii) Tenant, at Tenant’sexpense, shall and will at all times provide and permit reasonably appropriatemeans of ingress to and egress from the Leaseback Space so sublet by Tenant toLandlord or its designee, (iv) Landlord, at Tenant’s expense, may make suchalterations as may be required or deemed necessary by Landlord to physicallyseparate the Leaseback Space from the balance of the Demised Premises and tocomply with any laws and requirements of public authorities relating to suchseparation, and (v) that at the expiration of the term of such sublease, Tenantwill accept the space covered by such sublease in its then existing condition,subject to the obligations of the sublessee to make such repairs thereto as maybe necessary to preserve the premises demised by such sublease in good orderand condition.

 

(f)                                    provide that the Recapture Sublessee shallpay to the Tenant the lower of (i) the amount, if any, that Tenant would havebeen entitled to retain pursuant to the provisions of Section 9.10(b) hereof ifTenant had entered into a sublease with the proposed subtenant pursuant to theproposed sublease or (ii) fifty (50%) percent of the amount, if any, by whichthe fixed rents, additional rents and other charges payable by any 

 

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furthersublessee of the Recapture Sublessee during the term of any further sublease(on a square foot basis) exceeds the fixed and additional rent payable by theTenant under this Lease (on a square foot basis) during the term of suchfurther sublease in respect of the subleased space, less the amounts incurredby the Recapture Sublessee for the items set forth in Section 9.10(a)(2)(B). Suchamounts, if any, shall be paid to Tenant as and when received by the RecaptureSublessee from the further sublessee. The sums payable by the RecaptureSublessee to the Tenant under this Section 9.05(f) shall not include any rents,additional rents or other charges payable by any further sublessee of theRecapture Sublessee on account of the First Floor Premises.

 

**9.06****                                                                                                                       **(a)                                  If Landlord exercises its option to subletthe Leaseback Space, Landlord shall indemnify and save Tenant harmless from allobligations under this lease as to the Leaseback Space during the period oftime it is so sublet to Landlord;

 

(b)                                 Performance by Landlord, or its designee,under a sublease of the Leaseback Space shall be deemed performance by Tenantof any similar obligation under this lease and any default under any suchsublease shall not give rise to a default under a similar obligation containedin this Lease, nor shall Tenant be liable for any default under this lease ordeemed to be in default hereunder if such default is occasioned by or arisesfrom any act or omission of the tenant under such sublease or is occasioned byor arises from any act or omission of any occupant holding under or pursuant toany such sublease;

 

(c)                                  Tenant shall have no obligation, at the expirationor earlier termination of the term of this lease, to remove any alteration,installation or improvement made in the Leaseback Space by Landlord.

 

**9.07**                                                                        In the event Landlord does not exercise anoption provided to it pursuant to Section 9.02 and providing that Tenant is notin default of any of Tenant’s obligations under this lease after notice and theexpiration of any applicable grace period, Landlord’s consent (which must be inwriting and in form reasonably satisfactory to Landlord) to the proposedassignment or sublease, which may be withheld for any or no reason at Landlord’ssole discretion, may issue, provided and upon condition that:

 

(a)                                  Tenant shall have complied with theprovisions of Section 9.02 and Landlord shall not have exercised any of itsoptions under said Section 9.02 within the time permitted therefor;

 

(b)                                 InLandlord’s reasonable judgment the proposed assignee or subtenant is engaged ina business and the Demised Premises, or the relevant part thereof, will be usedin a manner which (i) is in keeping with the then standards of the Building,(ii) is limited to the use expressly permitted under this lease, and (iii) willnot violate any negative covenant as to use contained in any other lease ofspace in the Building of which Tenant has been advised;

 

(c)                                  Theproposed assignee or subtenant is a reputable entity of good character and withsufficient financial worth considering the responsibility involved, andLandlord has been furnished with reasonable proof thereof;

 

(d)                                 Neither(i) the proposed assignee or sublessee nor (ii) any person which, directly orindirectly, controls, is controlled by, or is under common control with, theproposed assignee or sublessee or any person who controls the proposed assigneeor sublessee, is then an occupant of any part of the Building. For purposes ofthis lease 

 

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“control” shall be deemed to meanownership of more than 50% of all the voting stock of a corporate or more than50% of all the legal and equitable interest in any other business entity;

 

(e)                                  The proposed assignee or sublessee is not aperson with whom Landlord is then negotiating to lease space in the Building;

 

(f)                                    The form of the proposed lease shall be inform reasonably satisfactory to Landlord and shall comply with the applicableprovisions of this Article;

 

(g)                                 There shall not be more than two (2)subtenants (including Landlord or its designee) on any floor of the DemisedPremises or more than a total of four (4) subtenants (excluding Landlord or itsdesignee) in the Demised Premises;

 

(h)                                 The rental and other terms and conditions ofthe sublease are the same as those contained in the proposed sublease furnishedto Landlord pursuant to Section 9.02;

 

(i)                                     Tenant shall reimburse Landlord on demand forany reasonable costs that may be incurred by Landlord in connection with saidassignment or sublease, including, with- out limitation, the costs of makinginvestigations as to the acceptability of the proposed assignee or subtenant,and legal costs incurred in connection with the granting of any requestedconsent; and

 

(j)                                     Tenant shall not have (i) advertised orpublicized in any way the availability of the Demised Premises without priornotice to and approval by Landlord, nor shall any advertisement state the name(as distinguished from the address) of the Building or the proposed rental,(ii) listed the Premises for subletting or assignment, at a rental rate lessthan the fixed rent and additional rent at which Landlord is then offering tolease other space in the Building.

 

(k)                                  The sublease shall not allow the use of theDemised Premises or any part thereof for (i) the preparation and/or sale offood for on or off premises consumption or (ii) for use by a foreign ordomestic governmental agency.

 

Except for any subletting by Tenant toLandlord or its designee pursuant to the provisions of this Article, eachsubletting pursuant to this Article shall be subject to all of the covenants,agreements, terms, provisions and conditions contained in this lease.Notwithstanding any such subletting to Landlord or any such subletting to anyother subtenant and/or acceptance of rent or additional rent by Landlord fromany subtenant, Tenant shall and will remain fully liable for the payment of thefixed rent and additional rent due and to become due hereunder and for theperformance of all the covenants, agreements, terms, provisions and conditionscontained in this lease on the part of Tenant to be performed and all acts andomissions of any licensee or sub- tenant or anyone claiming under or throughany subtenant which shall be in violation of any of the obligations of thislease, and any such violation shall be deemed to be a violation by Tenant. Tenantfurther agrees that notwithstanding any such subletting, no other and furthersubletting of the Premises by Tenant or any person claiming through or underTenant (except as provided in Section 9.05) shall or will be made except uponcompliance with and subject to the provisions of this Article. If Landlordshall decline to give its consent to any proposed assignment or sublease, or ifLandlord shall exercise any of its options under Section 9.02, Tenant shallindemnify, defend and hold harmless Landlord against and from any and all loss,liability, damages, costs and expenses (including reasonable counsel fees)resulting from any claims that may be made against Landlord by the proposedassignee or 

 

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sublessee or by any brokers or other personsclaiming a commission or similar compensation in connection with the proposedassignment or sublease, but such indemnity shall not apply to any transactionwhich Landlord may enter into with a proposed assignee or subtenant of theLandlord.

 

**9.08**                                                                        In the event that (a) Landlord fails toexercise any of its options under Section 9.02 and consents to a proposedassignment or sublease, and (b) Tenant fails to execute and deliver theassignment or sublease to which Landlord consented within 90 days after thegiving of such consent, then, Tenant shall again comply with all of theprovisions and conditions of Section 9.02 before assigning this lease orsubletting all or part of the Demised Premises.

 

**9.09**                                                                        With respect to each and every sublease orsubletting authorized by Landlord under the provisions of this lease, it isfurther agreed:

 

(a)                                  no subletting shall be for a term endinglater than one day prior to the expiration date of this lease;

 

(b)                                 no sublease shall be valid, and no subtenantshall take possession of the Demised Premises or any part thereof, until anexecuted counterpart of such sublease has been delivered to Landlord;

 

(c)                                  each sublease shall provide that it issubject and subordinate to this lease and to the matters to which this lease isor shall be subordinate, and that in the event of termination, re-entry ordispossess by Landlord under this lease Landlord may, at its option, take overall of the right, title and interest of Tenant, as sublessor, under suchsublease, and such subtenant shall, at Landlord’s option, attorn to Landlordpursuant to the then executory provisions of such sublease, except thatLandlord shall not (i) be liable for any previous act or omission of Tenantunder such sublease, (ii) be subject to any offset, not expressly provided in suchsublease, which theretofore accrued to such subtenant against Tenant, or (iii)be bound by any previous modification of such sublease not consented to inwriting by Landlord or by any previous prepayment of more than one month’srent.

 

**9.10**                                                                        If the Landlord shall give its consent to anyassignment of this lease or to any sublease, Tenant shall in considerationtherefor, pay to Landlord, as additional rent:

 

(a)                                  in the case of an assignment, other than aPermitted Assignment hereunder to a successor entity by asset or stock sale, anamount equal to the product of (1) fifty (50%) percent multiplied by (2)  the difference between (A) all sums and otherconsiderations paid to Tenant by the assignee for or by reason of suchassignment (including, but not limited to, sums paid for the sale of Tenant’sfixtures, leasehold improvements, equipment, furniture, furnishings or otherpersonal property, less, in the case of a sale thereof, the then netunamortized or underdepreciated cost thereof determined on the basis of Tenant’sfederal income tax returns) and (B) the reasonable actual out-of-pocketexpenses incurred by Tenant for preparing the Demised Premises for the assigneeor the amount of any contributions made by Tenant to the cost of suchpreparation, legal fees and brokerage commissions; and

 

(b)                                 in the case of a sublease, the product of (1)fifty (50%) percent multiplied by (2) the difference between (A) any rents,additional charge or other consideration payable under the sublease to Tenantby the subtenant which is in excess of the fixed rent and additional rentaccruing during the term of the sublease in respect of the subleased space (atthe rate per square foot payable by Tenant hereunder) pursuant to the termshereof (including, but not limited to, sums paid for the sale or rental ofTenant’s fixtures, leasehold improvements, equipment, furniture or 

 

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otherpersonal property, less, in the case of the sale thereof, the then netunamortized or underdepreciated cost thereof determined on the basis of Tenant’sfederal income tax returns) and (B) the reasonable actual out-of-pocketexpenses incurred by Tenant for preparing the Demised Premises (or applicableportion thereof) for the subtenant or the amount of any contributions made byTenant to the cost of such preparation (in either case, amortized over the termof the sublease on a straight-line basis), legal fees and brokerage commissions.The sums payable under this Section 9.10(b) shall be paid to Landlord as andwhen payable by the subtenant to Tenant. The provisions of this subparagraph9.10(b) shall not apply to subleases to affiliates of Tenant.

 

**9.11**                                                                        If Tenant is a corporation or partnership,the provisions of Section 9.01 shall apply to a transfer (by one or moretransfers) of a majority of the stock or partnership interest of Tenant as ifsuch transfer of a majority of the stock of Tenant were an assignment of thislease; said provisions shall also apply to transactions with a corporation orother entity into or with which Tenant is merged or consolidated or to whichsubstantially all of Tenant’s assets are transferred or to any corporation orother entity which controls or is controlled by Tenant or is under commoncontrol with Tenant, including any event of merger, consolidation or transferof substantially all of Tenant’s assets. The above referenced provisions shallnot apply to Tenant’s stock being sold on a nationally recognized exchange.

 

**9.12**                                                                        Any assignment or transfer, whether made withLandlord’s consent pursuant to Section 9.01 shall be made only if, and shallnot be effective until, the assignee shall execute, acknowledge and deliver toLandlord an agreement in form and substance reasonably satisfactory to Landlordwhereby the assignee shall assume the obligations of this lease on the part ofTenant to be performed or observed and whereby the assignee shall agree thatthe provisions in Section 9.01 shall, notwithstanding such assignment ortransfer, continue to be binding upon it in respect of all future assignmentsand transfers. The original named Tenant covenants that, notwithstanding anyassignment or transfer, whether or not in violation of the provisions of thislease, and notwithstanding the acceptance of fixed rent and/or additional rentby Landlord from an assignee, transferee, or any other party, the originalnamed Tenant shall remain fully liable for the payment of the fixed rent andadditional rent and for the other obligations of this lease on the part ofTenant to be performed or observed.

 

**9.13**                                                                        The joint and several liability of Tenant andany immediate or remote successor in interest of Tenant and the due performanceof the obligations of this lease on Tenant’s part to be performed or observedshall not be discharged, released or impaired in any respect by any agreementor stipulation made by Landlord extending the time of, or modifying any of theobligations of, this lease, or by any waiver or failure of Landlord to enforceany of the obligations of this lease.

 

**9.14**                                                                        The listing of any name other than that ofTenant, whether on the doors of the Premises or the Building directory, orotherwise, shall not operate to vest any right or interest in this lease or inthe Premises, nor shall it be deemed to be the consent of Landlord to anyassignment or transfer of this lease or to any sublease of the Premises or tothe use or occupancy thereof by others.

 

**9.15**                                                                        Tenant hereby agrees that the elevator lobbyand public hallways on any floor on which Tenant shall have subleased space toa subtenant shall conform in all respects (including, without limitation,colors schemes) to either (a) the elevator lobby and hallways (if any) on otherfloors leased to Tenant (if Tenant has leased more than one (l) floor from Landlord)or (b) Landlord’s then building standard for elevator lobbies and publichallways on multi-tenanted floors of the Building, or shall otherwise beapproved in writing by Landlord, which approval shall not be unreasonably 

 

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withheldor delayed, prior to the commencement of work thereon, notwithstanding anythingin this lease to the contrary.

 

**ARTICLE 10**

 

**Compliance With Laws And Requirements**

**Of**

**Public Authorities**

 

**10.01**                 Tenant shall give prompt notice to Landlordof any notice it receives of the violation of any law or requirement of publicauthority, and Tenant, at its expense, shall com- ply with all laws andrequirements of public authorities which shall, with respect to the DemisedPremises or the use and occupation thereof, or the abatement of any nuisance,impose any violation, order or duty on Landlord or Tenant, arising from (i)Tenant’s use of the Demised Premises, as distinguished from its mere occupancyof the Demised Premises for executive and general office purposes, (ii) themanner of conduct of Tenant’s business or operation of its installations,equipment or other property therein, as distinguished from its mere occupancyof the Demised Premises for the executive and general office purposes, (iii)any cause or condition created by or at the instance of Tenant, other than byLandlord’s performance of any work for or on behalf of Tenant, or (iv) breachof any of Tenant’s obligations hereunder. However, Tenant shall not be sorequired to make any structural or other substantial change in the DemisedPremises unless the requirement arises from a cause or condition referred to inclause (ii), (iii) or (iv) above. Furthermore, Tenant need not comply with anysuch law or requirement of public authority so long as Tenant shall becontesting the validity thereof, or the applicability thereof to the DemisedPremises, in accordance with Section 10.02. Landlord, at its expense, shallcomply with all other such laws and requirements of public authorities as shallaffect the Demised Premises, but may similarly contest the same subject toconditions reciprocal to Subsections (a), (b) and (d) of Section 10.02.

 

**10.02**                 Tenant may, at its expense (and if necessary,in the name of but without expense to Landlord) contest, by appropriate proceedingsprosecuted diligently and in good faith, the validity, or applicability to theDemised Premises, of any law or requirement of public authority, and Landlordshall cooperate with Tenant in such proceedings, provided that:

 

(a)                                  Landlord shall not be subject to criminalpenalty or to prosecution for a crime nor shall the Demised Premises or anypart thereof be subject to being condemned or vacated, by reason ofnon-compliance or otherwise by reason of such contest;

 

(b)                                 Tenant shall defend, indemnify and holdharmless Landlord against all liability, loss or damage which Landlord shallsuffer by reason of such non-compliance or contest, including reasonablyattorney’s fees and other expenses reasonably incurred by Landlord;

 

(c)                                  such non-compliance or contest shall notconstitute or result in any violation of any superior lease or superiormortgage, or if such superior lease and/or superior mortgage shall permit suchnon-compliance or contest on condition of the taking of action or furnishing ofsecurity by Landlord, such action shall be taken and such security shall befurnished at the expense of Tenant; and

 

(d)                                 Tenant shall keep Landlord advised as to thestatus of such proceedings.

 

Without limiting the application ofSubsection (a) above thereto, Landlord shall be deemed subject to prosecutionfor a crime within the meaning of said Subsection, if Landlord, or any officerof Landlord individually, is charged with a crime of any kind or degreewhatever, whether by service of a summons 

 

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or otherwise, unless such charge is withdrawnbefore Landlord or such officer (as the case may be) is required to plead oranswer thereto.

 

**10.03**                 Tenant shall not cause or permit “HazardousMaterials” (as defined below) to be used, transported, stored, released,handled, produced or installed in, on or from, the Demised Premises or theBuilding. The term “Hazardous Materials” shall, for the purposes hereof, meanany flammable, explosives, radioactive materials, hazardous wastes, hazardousand toxic substances or related materials, asbestos or any material containingasbestos, or any other substance or material, as defined by any federal, stateor local law, 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 abreach of the provisions of this Section 10.03, the parties agree that Landlordwill suffer irreparable harm for which money damages will be an insufficientremedy. For that reason, Landlord shall, in addition to all of its rights andremedies under this lease and pursuant to law, and equity (a) have the right torequire Tenant to remove any such Hazardous Materials from the Demised Premisesor the Building in the manner prescribed for such removal by all requirementsof law and (b) have the right to obtain a court order granting an injunctionagainst Tenant’s violation of the foregoing provisions, application for suchinjunction to be made without notice. The provisions of this Section 10.03,shall survive the expiration or sooner termination of this lease.

 

**10.04**                 Landlord represents to Tenant that, on orbefore the Commencement Date, all asbestos containing material will have beenremoved from the Demised Premises to the extent required by laws and/or requirementsof public authorities and that, to the best of its knowledge, the Building isin compliance with all laws and/or requirements of public authorities relatingto asbestos containing material. To the extent such representations areinaccurate, Landlord, as its sole liability for such inaccuracy, shall, at itssole cost and expense, cause the Demised Premises and/or the Building to complywith all such laws and requirements. On or before the Commencement Date,Landlord will deliver to Tenant a certificate from Landlord’s asbestosabatement contractor to the effect that there is no asbestos containingmaterial in the Demised Premises.

 

**ARTICLE 11**

 

**Insurance**

 

**11.01**                 Tenant shall not knowingly violate, or permitthe violation of any condition imposed by the standard fire insurance policythen issued for office buildings in the Borough of Manhattan, City of New York,and shall not do, or permit anything to be done, or keep or permit anything tobe kept in the Demised Premises, except as may be expressly provided to thecontrary in this lease, which would subject Landlord to any liability orresponsibility for personal injury or death or property damage, or which wouldincrease the fire or other casualty insurance rate on the Building or theproperty therein over the rate which would otherwise then be in effect (unlessTenant pays the resulting premium as provided in Section 11.03) or which wouldresult in insurance companies of good standing refusing to insure the Buildingor any of such property in amounts reasonably satisfactory to Landlord.

 

**11.02**                 The parties acknowledge that Landlordcurrently provides Tenant with all of its insurance coverage. In the event thatsuch practice were to be discontinued for any reason, the following provisionsshall apply.

 

(a) Tenant covenants toprovide on or before the earlier to occur 

 

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of(i) the Commencement Date and (ii) ten (l0) days from the date of this leaseand to keep in force during the term hereof the following insurance coveragewhich coverage shall be effective on the Commencement Date:

 

(i)                                     for the benefit of Landlord and Tenant acomprehensive policy of liability insurance protecting Landlord and Tenantagainst any liability whatsoever occasioned by accident on or about the DemisedPremises or any appurtenances thereto. Such policy is to be written by good andsolvent insurance companies authorized to do business in the state of New Yorkand the limits of liability thereunder shall not be less than the amount ofFive Million ($5,000,000.00) Dollars combined single limit coverage on a peroccurrence basis, including property damages. Such insurance may be carriedunder a blanket policy covering the Demised Premises and other locations ofTenant, if any;

 

(ii)                                  Fire and Extended coverage in an amountadequate to cover the cost of replacement of all personal property, fixtures,furnishing and equipment, including Tenant’s Work located in the Demised Premises.Such policy shall be written by good and solvent insurance companies authorizedto do business in the State of New York.

 

(iii)                               Prior to the time such insurance is firstrequired to be carried by Tenant and thereafter, at least fifteen (15) daysprior to the expiration of any such policies, Tenant agrees to deliver toLandlord either duplicate originals of the aforesaid policies or certificatesevidencing such insurance, provided said certificate contains an endorsementthat such insurance may not be modified or cancelled except upon fifteen (15)days’ notice to Landlord, together with evidence of payment for the policy. Tenant’sfailure to provide and keep in force the aforementioned insurance shall beregarded as a material default hereunder, entitling Landlord to exercise any orall of the remedies as provided in this lease in the event of Tenant’s default.However, prior to declaring a default for breach of the provisions herein,Landlord shall deliver Tenant a notice of default and Tenant shall have five(5) business days to cure said default.

 

**11.03**                 Landlord and Tenant shall each endeavor tosecure an appropriate clause in, or an endorsement upon, each fire or extendedcoverage policy obtained by it and covering the Building, the Demised Premisesor the personal property, fixtures and equipment located therein or thereon,pursuant to which the respective insurance companies waive subrogation orpermit the insured, prior to any loss, to agree with a third party to waive anyclaim it might have against said third party. The waiver of subrogation orpermission for waiver of any claim hereinbefore referred to shall extend to theagents of each party and its employees and, in the case of Tenant, shall alsoextend to all other persons and entities occupying or using the DemisedPremises in accordance with the terms of this lease. If and to the extent thatsuch waiver or permission can be obtained only upon payment of an additionalcharge then, except as provided in the following two paragraphs, the partybenefiting from the waiver or permission shall pay such charge upon demand, orshall be deemed to have agreed that the party obtaining the insurance coveragein question shall be free of any further obligations under the provisionshereof relating to such waiver or permission.

 

In the event that Landlordshall be unable at any time to obtain one of the provisions referred to abovein any of its insurance policies, at Tenant’s option Landlord shall causeTenant to be named in such policy or policies as one of the assureds, but ifany additional premium shall be imposed for the inclusion of Tenant as such asassured, Tenant shall pay such additional premium upon demand accompanied byevidence of such additional premium. In the event that Tenant shall have beennamed as one of the assureds in any of Landlord’s policies in accordance withthe foregoing, Tenant shall endorse promptly to the order of Landlord, withoutrecourse, any check, draft or order for the payment of money representing theproceeds of any such policy or any other payment growing out of or connectedwith said policy and Tenant hereby 

 

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irrevocablywaives any and all rights in and to such proceeds and payments.

 

In the event that Tenantshall be unable at any time to obtain one of the provisions referred to abovein any of its insurance policies, Tenant shall cause Landlord to be named insuch policy or policies as one of the assureds, but if any additional premiumshall be imposed for the inclusion of Landlord as such an assured, Landlordshall pay such additional premium upon demand or Tenant shall be excused fromits obligations under this paragraph with respect to the insurance policy orpolicies for which such additional premiums would be imposed. In the event thatLandlord shall have been named as one of the assureds in any of Tenant’spolicies in accordance with the foregoing, Landlord shall endorse promptly tothe order of Tenant, without recourse, any check, draft or order for thepayment of money representing the proceeds of any such policy or any otherpayment growing out of or connected with said policy and Landlord herebyirrevocably waives any and all rights in and to such proceeds and payments.

 

Subject to the foregoingprovisions of this Section 11.03, and insofar as may be permitted by the termsof the insurance policies carried by it, each party hereby releases the otherwith respect to any claim (including a claim for negligence) which it mightotherwise have against the other party for loss, damages or destruction withrespect to its property by fire or other casualty (including rental value orbusiness interruption, as the case may be) occurring during the term of thislease.

 

**11.04**                 If, by reason of a failure of Tenant to com-ply with the provisions of Section 10.01 or Section 11.01, the rate of fireinsurance with extended coverage on the Building or equipment or other propertyof Landlord shall be higher than it otherwise would be, Tenant shall reimburseLandlord, on demand, for that part of the premiums for fire insurance andextended coverage paid by Landlord because of such failure on the part ofTenant.

 

**11.05**                 If any dispute shall arise between Landlordand Tenant with respect to the incurrence or amount of any additional insurancepremium referred to in Section 11.03, the dispute shall be determined byarbitration.

 

**11.06**                 A schedule or make up of rates for theBuilding or the Demised Premises, as the case may be, issued by the New YorkFire Insurance Rating Organization or other similar body making rates for fireinsurance and extended coverage for the premises concerned, shall be conclusiveevidence of the facts therein stated and of the several items and charges inthe fire insurance rate with extended coverage then applicable to suchpremises.

 

**ARTICLE 12**

 

**Rules and Regulations**

 

**12.01**                 Tenant and its employees and agents shallfaithfully observe and comply with the Rules and Regulations promulgated fromtime to time by Landlord with respect to conduct in the Building, and suchreasonable changes therein (whether by modification, elimination or addition)as Landlord at any time or times hereafter may make and communicate in writingto Tenant, which do not unreasonably affect the conduct of Tenant’s business inthe Demised Premises except as required by any governmental law, rule,regulation, ordinance or similar decree; provided, however, that in case of anyconflict or inconsistency between the provisions of this lease and any of theRules and Regulations as originally promulgated or as changed, the provisionsof this lease shall control.

 

**12.02**                 Nothing in this lease contained shall beconstrued to impose upon Landlord any duty or obligation to Tenant to enforcethe Rules and Regulations or the terms, covenants or conditions in any otherlease, as 

 

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againstany other tenant, and Landlord shall not be liable to Tenant for violation ofthe same by any other tenant or its employees, agents or visitors. However,Landlord shall not enforce any of the Rules and Regulations in such manner asto discriminate against Tenant or anyone claiming under or through Tenant.

 

**ARTICLE 13**

 

**Alterations, Renovations and Tenant’s Changes**

 

**13.01**                 Tenant shall make no alterations,renovations, decorations or any other changes to the Demised Premises withoutthe written consent of the Landlord which may be withheld for any or no reason,at Landlord’s sole discretion. Tenant may from time to time during the term ofthis lease, at its expense, make such alterations, additions, installations,substitutions, improvements and decorations (hereinafter collectively referredto as **“changes”** and, as applied tochanges provided for in this Article,**“Tenant’sChanges”**) in and to the Demised Premises, excluding structuralchanges, as Tenant may reasonably consider necessary for the conduct of itsbusiness in the Demised Premises, on the following conditions:

 

(a)                                  the outside appearance or the strength of theBuilding or of any of its structural parts shall not be affected;

 

(b)                                 no part of the Building outside of theDemised Premises shall be physically affected;

 

(c)                                  the proper functioning of any of themechanical, electrical, sanitary and other service systems of the Buildingshall not be adversely affected or the usage of such systems by Tenant shallnot be increased beyond the capacity of the systems servicing the DemisedPremises;

 

(d)                                 in performing the work involved in makingsuch changes, Tenant shall be bound by and observe all of the conditions andcovenants contained in the following Sections of this Article;

 

(e)                                  before proceeding with any Tenant’s Changes,Tenant will submit to Landlord plans and specifications and all changes andrevisions thereto, for the work to be done, and proof reasonably satisfactoryof the cost thereof and shall submit the names of the contractors orsubcontractors who will be performing Tenant’s Changes, all for Landlord’sapproval, which approval may be withheld for any or no reason, at Landlord’ssole discretion. Additionally, before proceeding with any Tenant’s Changes,Tenant shall, upon demand of Landlord, pay to Landlord the reasonable costsincurred by Landlord for the review of such plans and specifications and allchanges and revisions thereto by its architect, engineer and other consultants.Landlord may as a condition of its approval require Tenant to make reasonablerevisions in and to the plans and specifications and to post a bond or othersecurity reasonably satisfactory to Landlord to insure the completion of suchchange.

 

**13.02**                 (a)Tenant, at its expense, shall obtain allnecessary governmental permits and certificates for the commencement andprosecution of Tenant’s Changes and for final approval thereof upon completionand shall furnish copies thereof to Landlord, and shall cause Tenant’s Changesto be performed in compliance therewith and with all applicable laws andrequirements of public authorities, and with all applicable requirements ofinsurance bodies, and in good and workmanlike manner, using new materials andequipment at least equal in quality and class to the original installations inthe Building. Tenant’s Changes shall be performed in such manner as not tounreasonably interfere with or delay and (unless Tenant shall indemnifyLandlord therefor to the latter’s reasonable satisfaction) as not to impose anyadditional expense upon, Landlord in the renovation, maintenance or operationof the Building or any portion thereof. Throughout the performance 

 

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ofTenant’s Changes, Tenant, at its expense, shall carry, or cause to be carried,workmen’s compensation insurance in statutory limits and general liabilityinsurance for any occurrence in or about the Building as set forth in Section11.02 hereof, in which Landlord and its agents shall be named as partiesinsured, in such limits as Landlord may reasonably prescribe, with insurersreasonably satisfactory to Landlord. Tenant shall furnish Landlord withsatisfactory evidence that such insurance is in effect at or before thecommencement of Tenant’s Changes and, on request, at reasonable intervalsthereafter during the continuance of Tenant’s Changes. If any of Tenant’sChanges shall involve the removal of any fixtures, equipment or other propertyin the Demised Premises which are not Tenant’s Property (as defined in Article14), such fixtures, equipment or other property shall be promptly replaced, atTenant’s expense, with new fixtures, equipment or other property (as the casemay be) of like utility and at least equal value unless Landlord shallotherwise expressly consent in writing. All electrical and plumbing work inconnection with Tenant’s changes shall be performed by contractors orsubcontractors licensed therefor by all governmental agencies having orasserting jurisdiction. Upon the completion of Tenant’s Changes Tenant shallfurnish to Landlord a complete set of “as-built” plans and specifications. Iflaws and/or requirements of public authorities require Tenant to prepare,maintain or submit “as-built” plans and specifications in connection with anyTenant’s Changes, Tenant shall furnish a complete set of same to Landlord.

 

(b)  The provisions of Subparagraph 13.2 aboveshall not apply to the initial Work being done by Landlord pursuant to Articles3 and 4 of this Lease.

 

**13.03**                 Tenant, at its expense, and with diligenceand dispatch, shall procure the cancellation or discharge of all notices ofviolation arising from or otherwise connected with Tenant’s Changes which shallbe issued by the Department of Buildings or any other public or quasi-publicauthority having or asserting jurisdiction. Tenant shall defend, indemnify andsave harmless Landlord against any and all mechanic’s and other liens filed inconnection with Tenant’s Changes, including the liens of any security interestin, conditional sales of, or chattel mortgages upon, any materials, fixtures orarticles so installed in and constituting part of the Demised Premises andagainst all costs, expense and liabilities incurred in connection with any suchlien, security interest, conditional sale or chattel mortgage or any action orproceeding brought thereon. Tenant, at its expense, shall procure thesatisfaction or discharge of all such liens, or shall bond any such lien withinthirty (30) days after Landlord makes written demand therefor. However, nothingherein contained shall prevent Tenant from contesting, in good faith and at itsown expense, any such notice of violation, provided that Tenant shall complywith the provisions of Section 10.02.

 

**13.04**                 Tenant agrees that the exercise of its rightspursuant to the provisions of this Article 13 or any other provision of thislease shall not be done in a manner which would reasonably be likely to createany work stoppage, picketing, labor disruption or dispute or violate Landlord’sunion contracts affecting the Land and/or Building nor unreasonably interferewith the business of Landlord or any Tenant or occupant of the Building. In theevent of the occurrence of any condition described above arising from theexercise by Tenant of its right pursuant to the provisions of this Article 13or any other provision of this lease, Tenant shall, immediately upon noticefrom Landlord, cease the manner of exercise of such right giving rise to suchcondition. The parties agree that in such instance, Landlord will sufferirreparable harm for which money damages will be an insufficient remedy. Forthat reason, in the event Tenant fails to cease such manner of exercise of itsrights as aforesaid, Landlord, in addition to any rights available to it underthis lease and pursuant to law, shall have the right to injunction withoutnotice. With respect to Tenant’s Changes, Tenant shall make all arrangementsfor, and pay all expenses incurred in connection with, use of the freightelevators servicing the Demised Premises. The immediately preceding sentence 

 

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shallnot apply to the initial move-in or Work done during normal business hours relatingto the Work.

 

**ARTICLE 14**

 

**Tenant’s Property**

 

**14.01**      All fixtures, equipment, improvements andappurtenances attached to or built into the Demised Premises at the commencementof or during the term of this lease, whether or not by or at the expense ofTenant, shall be and remain a part of the Demised Premises, shall be deemed theproperty of Landlord and shall not be removed by Tenant, except as hereinafterin this Article expressly provided.

 

**14.02**      All panelling, movable partitions,lighting fixtures, special cabinet work, other business and trade fixtures,machinery and equipment, communications equipment and office equipment, whetheror not attached to or built into the Demised Premises, which are installed inthe Demised Premises by or for the account of Tenant, without expense toLandlord, and can be removed without permanent structural damage to theBuilding, and all furniture, furnishings and other articles of movable personalproperty owned by Tenant and located in the Demised Premises, (all of which aresometimes referred to as**“Tenant’s Property”**)shall be and shall remain the property of Tenant and may be removed by it atany time during the term of this lease; provided that if any of Tenant’sProperty is removed, Tenant or any party or person entitled to remove sameshall repair or pay the cost of repairing any damage to the Demised Premiseso0.r to the Building resulting from such removal. Any equipment or otherproperty for which Landlord shall have granted any allowance or credit toTenant or which has replaced such items originally provided by Landlord atLandlord’s expense shall not be deemed to have been installed by or for theaccount of Tenant, without expense to Landlord, and shall not be consideredTenant’s Property.

 

**14.03**      At or before the Expiration Date, or thedate of any earlier termination of this lease, or as promptly as practicableafter such an earlier termination date, Tenant at its expense, shall removefrom the Demised Premises all of Tenant’s Property except such items thereof asTenant shall have expressly agreed in writing with Landlord were to remain andto become the property of Landlord, and shall fully repair any damage to theDemised Premises or the Building resulting from such removal. Tenant’sobligation herein shall survive the termination of the lease. Notwithstandingthe foregoing, Tenant shall have no obligation to remove any of the initialimprovements made to the Premises pursuant to Article 3 of this Lease.

 

**14.04**      Any other items of Tenant’s Property(except money, securities and other like valuables) which shall remain in theDemised Premises after the Expiration Date or after a period of fifteen (15)days following an earlier termination date, may, the option of the Landlord, bedeemed to have been abandoned, and in such case either may be retained byLandlord as its property or may be disposed of, without accountability, atTenant’s expense in such manner as Landlord may see fit.

 

**ARTICLE 15**

 

**Repairs And Maintenance**

 

**15.01**      Tenant shall take good care of the DemisedPremises. Tenant, at its expense, shall promptly pay the cost of all repairs,ordinary or extraordinary, interior or exterior, structural or otherwise, inand about the Demised Premises and the Building, as shall be required by reasonof (i) the performance or existence of Tenant’s Work or Tenant’s Changes, (ii)the installation, use or operation of Tenant’s Property in the DemisedPremises, (iii) the moving of Tenant’s Property in or out of the Building, or(iv) the 

 

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misuseor neglect of Tenant or any of its employees, agents or contractors; but Tenantshall not be responsible for any of such repairs as are required by reason of adestruction of all or any part of the Demised Premises due to a cause referredto in Article 22 of this lease, Landlord’s neglect or other fault in the mannerof performing any of Tenant’s Work, Additional Work or Tenant’s Changes whichmay be undertaken by Landlord for Tenant’s account or are otherwise required byreason of neglect or other fault of Landlord or its employees, agents orcontractors. Except if required by the neglect or other fault of Landlord orits employees, agents or contractors, Tenant, at its expense, shall replace orrepair all scratched, damaged or broken doors or other interior glass in orabout the Demised Premises and shall be responsible for all repairs,maintenance and replacement of wall and floor coverings in the Demised Premisesand, for the repair and maintenance of all lighting fixtures therein. Allrepairs, except for emergency repairs, made by Tenant as provided herein shallbe performed by Landlord’s Building personnel, or contractors or subcontractorsapproved in writing by Landlord prior to commencement of such repairs, whichapproval may be withheld for any or no reason, at Landlord’s sole discretion.

 

**15.02**      Landlord, at its expense, shall keep andmaintain the Building and its fixtures, appurtenances, systems and facilitiesserving the Demised Premises, in good, safe and clean working order, conditionand repair and shall make all repairs, structural and otherwise, interior andexterior, as and when needed in or about the Demised Premises, except for thoserepairs for which Tenant is responsible pursuant to any other provisions ofthis lease.

 

**15.03**      Except as expressly otherwise provided inthis lease, Landlord shall have no liability to Tenant by reason of anyinconvenience, annoyance, interruption or injury to business arising fromLandlord’s making any repairs or changes which Landlord is required orpermitted by this lease, or required by law, to make in or to any portion ofthe Building or the Demised Premises, or in or to the fixtures, equipment orappurtenances of the Building or the Demised Premises, provided that Landlordshall use due diligence with respect thereto and shall perform such work,except in case of emergency, at times reasonably convenient to Tenant andotherwise in such manner as will not materially interfere with Tenant’s use ofthe Demised Premises, and access thereto.

 

**ARTICLE 16**

 

**Electricity**

 

**16.01**                      (a)           Any additional risers, feeders or other equipment orservice proper or necessary to supply Tenant’s electrical requirements, will,upon written request of Tenant, be installed by Landlord, at the sole cost andexpense of Tenant, if in Landlord’s sole judgment, the same are necessary andwill not cause permanent damage or injury to the Building or the DemisedPremises or cause or create a dangerous or hazardous condition or entailexcessive or unreasonable alterations, repairs or expense or interfere with ordisturb other tenants or occupants. Rigid conduit only will be allowed.

 

**16.02**    Landlord shall not in anywise be liable orresponsible to Tenant for any loss or damage or expense which Tenant maysustain or incur if either the quantity or character of electric service ischanged or is no longer available or suitable for Tenant’s requirements.

 

**16.03**      Tenant agrees not to connect anyadditional electrical equipment of any type to the Building electricdistribution system, beyond that on Tenant’s approved plans per the attachedexhibit, for initial occupancy, other than lamps, typewriters and other officemachines which 

 

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operateutilizing only the standard electrical current available in a duplex receptacleoutlet without the need for any special wiring or dedicated lines which consumecomparable amounts of electricity, without the Landlord’s prior writtenconsent, which consent shall not be unreasonably withheld or delayed. In noevent shall Tenant use or install any fixtures, equipment or machines the useof which in conjunction with other fixtures, equipment and machines in the DemisedPremises would result in an overload or exceed the electrical capacity of theelectrical circuits, risers, feeders or wiring servicing the Demised Premises.

 

**16.04**      (a) Tenant covenants and agrees that at all times its use of electriccurrent shall never exceed the capacity of the then existing feeders to theBuilding or the risers or wiring installation. Tenant shall furnish, installand replace, as required, all lighting tubes, lamps, bulbs and ballastsrequired in the Demised Premises, at Tenant’s sole cost and expense. Alllighting tubes, lamps, bulbs and ballasts so installed shall become Landlord’sproperty upon the expiration or sooner termination of this Lease.

 

(b)  Landlord covenants that the electricalservice to the Demised Premises shall never be reduced below that necessary forthe Tenant to operate its business.

 

**ARTICLE 17**

 

**Heat, Ventilation And Air-Conditioning**

 

**17.01**      Landlord, at its expense, shall supplycondenser water and fresh air from May 1st to October 31st during BusinessHours of Business Days (as such terms are hereinafter defined) as mayreasonably be required to operate any ventilating and air-conditioning systemswhich are installed in the Demised Premises. **“BusinessHours”** and **“regular hours”**shall mean the hours between 8:00 a.m. and 6:00 p.m. on Business Days (otherthan holidays). **“Business Days”**shall mean all days except Saturdays, Sundays and days observed by the Federalor the state government as legal holidays or building service employees’ unionholidays. Landlord, at its expense, shall supply heat from November 1 to April30 during Business Hours of Business Days. If Landlord shall charge forcondenser water and fresh air outside of Business Hours, Tenant shall becharged at the lowest rate Landlord charges to any of its wholly-owned units.

 

**ARTICLE 18**

 

**Landlord’s Other Services; Use of Common Facilities**

 

**18.01**      Landlord, at its expense, shall providepublic elevator service, passenger and freight, by elevators serving the flooron which the Demised Premises are situated during regular hours of businessdays, and shall have at least one passenger elevator subject to call at allother times.

 

**18.02**      Landlord, at its expense, shall cause theDemised Premises to be cleaned in accordance with the cleaning specifications thenin effect for the Building, as referenced in Exhibit F attached hereto, as suchmay be changed from time to time. Tenant shall pay to Landlord on demand thecosts incurred by Landlord for (a) extra cleaning work in the Demised Premisesrequired because of (i) misuse or neglect on the part of Tenant or itsemployees or visitors, (ii) use of portions of the Demised Premises forpreparation, serving or consumption of food or beverages, data processing orreproducing operations, private lavatories or toilets or other special purposesrequiring greater or more difficult cleaning work than office areas, (iii)unusual quantity of interior glass surfaces, (iv) non-building standardmaterials or finishes installed by Tenant or at its request, and (b) removalfrom the Demised Premises and the Building of so much of any refuse and 

 

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rubbishof Tenant as shall exceed that ordinarily accumulated daily in the routine ofbusiness office occupancy. Landlord, its cleaning contractor and theiremployees shall have after hours access to the Demised Premises and the freeuse of light, power and water in the Demised Premises as reasonably requiredfor the purpose of cleaning the Demised Premises in accordance with Landlord obligationshereunder.

 

**18.03**      Landlord, at its expense, shall furnishadequate hot and cold water to the Demised Premises for drinking, lavatory andcleaning purposes. If Tenant uses water for a separate kitchen facility,Landlord, at Tenant’s expense, shall install meters to measure Tenant’sconsumption of cold water and/or hot water for such other purposes and/orsteam, as the case may be. Tenant shall pay for the quantities of cold waterand hot water shown on such meters, at Landlord’s cost thereof, on the renditionof Landlord’s bills therefor.

 

**18.04**      Landlord, at its expense, and on Tenant’srequest, shall maintain the original listings on the Building directory of thenames of Tenant and other permitted occupants, in a manner and numberconsistent with Landlord’s treatment of its wholly-owned units. Tenant shallalso be entitled to signage in the lobby of the floor of which the DemisedPremises are a part, such signage to be consistent in size and design with thesignage on other floors.

 

**18.05**      Landlord reserves the right, without anyliability to Tenant, except as otherwise expressly provided in this lease, tostop service of any of the heating, ventilating, air conditioning, electric,sanitary, elevator or other Building systems serving the Demised Premises, orthe rendition of any of the other services required of Landlord under thislease, when- ever and for so long as may be necessary, by reason of accidents,emergencies, strikes or the making of repairs or changes which Landlord isrequired by this lease or by law to make or in good faith deems necessary, byreason of difficulty in securing proper supplies of fuel, steam, water,electricity, labor or supplies, or by reason of any other cause beyond Landlord’sreasonable control.

 

**18.06     **Tenant and its employees shall be permitted to use Landlord’s employeeand other amenity common areas in the Building, including but not limited tothe Third Floor employee’s cafe, fitness center, and conference and privatedining facilities on the Forty-First Floor, and the broadcast studio space. Also,Tenant will pay its pro rata share for mail delivery services, IT support andother similar services on a basis consistent with Landlord’s charges to itsother wholly-owned profit centers. Tenant will be charged by Landlord for suchaccess and services as Operating Expenses.

 

**18.07     **Any out-of-pocket costs for Tenant’s use for conference space, food,catering and the like, will be billed directly to Tenant as incurred. Use ofthe Landlord’s Board Room will not be billed to Tenant, except for out ofpocket costs such as catering.

 

**ARTICLE 19**

 

**Access, Changes in Building Facilities**

**And/or Name, Building Sign**

 

**19.01**      All portions of the Building except theinside surfaces of all walls, windows and doors bounding the Demised Premises(including exterior Building walls, core corridor walls and doors and any corecorridor entrance) and any space in or adjacent to the Demised Premises usedfor shafts, stacks, pipes, conduits, fan rooms, ducts, electric or otherutilities, sinks or other Building facilities, and the use thereof, as well asaccess thereto through the Demised Premises for the purpose of operation,maintenance, decoration and repair, are reserved to Landlord except as providedto the contrary in Section 

 

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1.02 hereof.

 

 

**19.02**      Tenant shall permit Landlord to install, use,replace and maintain pipes, ducts and conduits within the demising walls,bearing columns and ceilings of the Demised Premises.

 

**19.03**      Landlord or Landlord’s agent shall havethe right, upon reasonable prior notice (except in emergency under clause(ii)  hereof), which notice need not bewritten notwithstanding anything in this lease to the contrary, to enter and/orpass through the Demised Premises or any part thereof, during Business Hours ofBusiness Days (and at any time in the case of emergencies) (i) to examine theDemised Premises and to show them to the fee owners, lessors of superiorleases, holders of superior mortgages, or prospective purchasers, mortgagees orlessees of the Building as an entirety, and (ii) for the purpose of making suchrepairs or changes in or to the Demised Premises or in or its facilities, asmay be provided for by this lease or as may be mutually agreed upon by theparties or as Landlord may be required to make by law or in order to repair andmaintain said structure or its fixtures or facilities. Landlord shall beallowed to take all materials into and upon the Demised Premises that may berequired for such repairs, changes, repainting or maintenance, withoutliability to Tenant, but Landlord shall not unreasonably interfere with Tenant’suse of the Demised Premises. Landlord shall prosecute such repairs, changes,repainting or maintenance with due diligence and use reasonable efforts, whichshall not be deemed to include the use of overtime labor, to minimizeinterference with the conduct of Tenant’s business due to Landlord’s exerciseof its rights pursuant to the immediately preceding sentence. Landlord shallalso have the right to enter on and/or pass through the Demised Premises, orany part thereof, at such times as such entry shall be required bycircumstances of emergency affecting the Demised Premises or said structure.

 

**19.04**      During the period of twelve (12) monthsprior to the Expiration Date or the expiration date of the Renewal Term, andupon prior notice to Tenant which may be by telephone, Landlord may exhibit theDemised Premises to prospective tenants unless with respect to the ExpirationDate, Tenant has theretofore exercised the Renewal Option.

 

**19.05**      Landlord reserves the right, at any time,without incurring any liability to Tenant therefor, to make such changes in orto the Building and the fixtures and equipment thereof, as well as in or to thestreet entrances, halls, passages, elevators, escalators and stairways thereof,as it may deem necessary or desirable, provided Landlord shall not materiallydiminish Tenant’s access to the Demised Premises.

 

**19.06     **For the purposes of Article 19, the term “Landlord”shall include lessors of leases and the holders of mortgages to which thislease is subject and subordinate as provided in Article 7.

 

**ARTICLE 20**

 

**Notice of Accidents**

 

**20.01**      Tenant shall give written notice toLandlord, promptly after Tenant learns thereof, of (i) any accident in or aboutthe Demised Premises for which Landlord might be liable, (ii) all fires in theDemised Premises, (iii) all damages to or defects in the Demised Premises,including the fixtures, equipment and appurtenances thereof, for the repair ofwhich Landlord might be responsible, and (iv) all damage to or defects in anyparts or appurtenances of the Building’s sanitary, electrical, heating,ventilating, air-conditioning, elevator and other systems located in or passingthrough the Demised Premises or any part thereof.

 

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**ARTICLE 21**

 

**Non-Liability and Indemnification**

 

**21.01**      Neither Landlord nor any agent or employeeof Landlord shall be liable to Tenant for any injury or damage to Tenant or toany other person or for any damage to, or loss (by theft or otherwise) of, anyproperty of Tenant or of any other person, irrespective of the cause of suchinjury, damage or loss, unless caused by or due to the negligence, wrongful actor wrongful omission of Landlord, its agents or employees occurring within thescope of their respective employments without negligence on the part of Tenant,it being understood that no property, other than such as might normally bebrought upon or kept in the Demised Premises as an incident to the reasonableuse of the Demised Premises for the purpose herein permitted, will be broughtupon or be kept in the Demised Premises.

 

**21.02**      Tenant shall indemnify and save harmlessLandlord and its agents against and from (a) any and all claims (i) arisingfrom (x) the conduct or management of the Demised Premises or of any businesstherein, or (y) any work or thing whatsoever done, or any condition created(other than by Landlord for Landlord’s or Tenant’s account) in or about theDemised Premises during the term of this lease or during the period of time, ifany, prior to the Commencement Date that Tenant may have been given access tothe Demised Premises, or (ii) arising from any negligent or otherwise wrongfulact or omission of Tenant or any of its subtenants or licensees or its or theiremployees occurring within the scope of their respective employments, agents orcontractors, and (b) all costs, expenses and liabilities (including reasonableattorneys fees) incurred in or in connection with each such claim or action orproceeding brought thereon. In case any action or proceeding be brought againstLandlord by reason of any such claim, upon notice from Landlord, Tenant shallresist and defend such action or proceeding.

 

**21.03**      Except as otherwise expressly provided inthis lease, this lease and the obligations of Tenant hereunder shall be in nowise affected, impaired or excused because Landlord is unable to fulfill, or isdelayed in fulfilling, any of its obligations under this lease by reason ofstrike, other labor trouble, governmental pre-emption or priorities or othercontrols in connection with a national or other public emergency or shortagesof fuel, supplies or labor resulting therefrom, acts of God or other like causebeyond Landlord’s reasonable control.

 

**ARTICLE 22**

 

**Destruction or Damage**

 

**22.01**      If the Building or the Demised Premises oraccess thereto, shall be partially damaged or partially destroyed by fire orother cause, the rents payable hereunder shall be abated to the extent that theDemised Premises shall have been rendered untenantable and for the period fromthe date of such damage or destruction to the date the damage shall be repairedor restored in accordance with the provisions of Section 22.03. If the DemisedPremises or a major part thereof shall be totally (which shall be deemed toinclude substantially totally) damaged or destroyed or rendered completely(which shall be deemed to be substantially completely) untenantable on accountof fire or other cause, the rents shall abate as of the date of the damage ordestruction and until Landlord shall repair, restore and rebuild the Buildingand the Demised Premises, provided, however, that should Tenant reoccupy aportion of the Demised Premises during the period the restoration work istaking place and prior to the date that the same are made completelytenantable, rents allocable to such portion shall be payable by Tenant from thedate of such occupancy. No rent shall abate on account of any damage to theFirst Floor Premises.

 

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**22.02**      If the Building or the Demised Premises oraccess thereto shall be totally damaged or destroyed by fire or other cause, orif the Building shall be so damaged or destroyed by fire or other cause(whether or not the Demised Premises are damaged or destroyed) as to require areasonably estimated expenditure of more than 40% of the full insurable valueof the Building immediately prior to the casualty, then in either such caseLandlord may terminate this lease by giving Tenant notice to such effect withinone hundred eighty (180) days after the date of the casualty. In case of anydamage or destruction mentioned in this Article Tenant may terminate thislease, by notice to Landlord, if Landlord has not completed the making of therequired repairs and restored and rebuilt the Building and the Demised Premiseswithin twelve (12) months from the date of such damage or destruction, orwithin such period after such date (not exceeding six months) as shall equalthe aggregate period Landlord may have been delayed in doing so by adjustmentof insurance, labor trouble, governmental controls, act of God, or any othercause beyond Landlord’s reasonable control. In case of any damage ordestruction mentioned in this Article occurring in the last year of theoriginal term of this Lease (provided Tenant has not theretofore exercised theFirst Renewal Option) or occurring in the last year of the First Renewal Term(provided Tenant has not theretofore exercised the Second Renewal Option) oroccurring in the last year of the Second Renewal Term, Tenant may terminatethis Lease on written notice to Landlord.

 

**22.03**      If the Building or the Demised Premisesshall be partially or totally damaged or destroyed by fire or other cause,then, whether or not the damage or destruction shall have resulted from thefault or neglect of Tenant, or its employees or agents (and if this lease shallnot have been terminated as in this Article provided), Landlord shall repair thedamage and restore and rebuild the Building and/or the Demised Premises, at itsexpense, with reasonable dispatch after notice to it of the damage ordestruction; provided, however, that Landlord shall not be required to repairor replace any Tenant’s Work or “Additional Work” (as hereinafter defined).

 

**22.04**      No damages, compensation or claim shall bepayable by Landlord for inconvenience, loss of business or annoyance arisingfrom any repair or restoration of any portion of the Demised Premises or of theBuilding pursuant to this Article. Landlord shall use its best efforts toeffect such repair or restoration promptly and in such manner as to notunreasonably interfere with Tenant’s use and occupancy.

 

**22.05**      Intentionally Deleted

 

**22.06**      Landlord will not carry insurance of anykind on Tenant’s Property or Tenant’s Work or Additional Work, and, except asprovided by law or by reason of its fault or its breach of any of itsobligations hereunder, shall not be obligated to repair any damage thereto orreplace the same.

 

**22.07**      The provisions of this Article shall beconsidered an express agreement governing any case of damage or destruction ofthe Demised Premises by fire or other casualty, and Section 227 of the RealProperty Law of the State of New York, providing for such a contingency in theabsence of an express agreement, and any other law of like import, now orhereafter in force, shall have no application in such case.

 

**ARTICLE 23**

 

**Eminent Domain**

 

**23.01**      If the whole of the Building shall belawfully taken by condemnation or in any other manner for any public orquasi-public use or purpose, this lease and the term and estate hereby grantedshall forthwith terminate as of the date of vesting of title in such taking(which date is hereinafter also referred to as the **“date of the taking”**), and the rents shall 

 

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beprorated and adjusted as of such date.

 

**23.02**      If only a part of the Building shall be sotaken, this lease shall be unaffected by such taking, except that Tenant mayelect to terminate this lease in the event of a partial taking, if theremaining area of the Demised Premises shall not be reasonably sufficient forTenant to continue feasible operation of its business or if Tenant shall nothave reasonable access to the Demised Premises. Tenant shall give notice ofsuch election to Landlord not later than sixty (60) days after (i) notice ofsuch taking is given by Landlord to Tenant, or (ii) the date of such taking,whichever occurs sooner. Upon the giving of such notice by Tenant this leaseshall terminate on the date of such taking and the rents shall be prorated asof such termination date. Upon such partial taking and this lease continuing inforce as to any part of the Demised Premises, the rents apportioned to the parttaken shall be prorated and adjusted as of the date of taking and from suchdate the fixed rent for the Demised Premises and additional rent shall bepayable pursuant to Article 5 according to the rentable area remaining. No rentshall abate on account of any taking of the First Floor Premises.

 

**23.03**      Landlord shall be entitled to receive theentire award in any proceeding with respect to any taking provided for in thisArticle without deduction therefrom for any estate vested in Tenant by thislease and Tenant shall receive no part of such award, except as hereinafterexpressly provided in this Article. Tenant hereby expressly assigns to Landlordall of its right, title and interest in or to every such award. Notwithstandinganything herein to the contrary, Tenant may, at its sole cost and expense, makea claim with the condemning authority for Tenant’s moving expenses, the valueof Tenant’s fixtures or Tenant’s Changes which do not become part of theBuilding or property of the Landlord, provided however that Landlord’s award isnot thereby reduced or otherwise adversely affected.

 

**23.04**      If the temporary use or occupancy of allor any part of the Demised Premises shall be lawfully taken by condemnation orin any other manner for any public or quasi-public use or purpose during theterm of this lease, Tenant shall be entitled, except as hereinafter set forth,to receive that portion of the award for such taking which representscompensation for the use and occupancy of the Demised Premises (other than theFirst Floor Premises and, if so awarded, for the taking of Tenant’s Propertyand for moving expenses, and Landlord shall be entitled to receive that portionwhich represents reimbursement for the cost of restoration of the Demised Premisesand compensation for use and occupancy of the First Floor Premises. This leaseshall be and remain unaffected by such taking and Tenant shall continueresponsible for all of its obligations hereunder insofar as such obligationsare not affected by such taking and shall continue to pay in full the fixedrent and additional rent when due. If the period of temporary use or occupancyshall extend beyond the Expiration Date, that part of the award whichrepresents compensation for the use or occupancy of the Demised Premises (or apart thereof) shall be divided between Landlord and Tenant so that Tenant shallreceive so much thereof as represents the period prior to the Expiration Dateand Landlord shall receive so much thereof as represents the period subsequentto the Expiration Date. All moneys received by Tenant as, or as part of, anaward for temporary use and occupancy for a period beyond the date to which therents hereunder have been paid by Tenant shall be received, held and applied byTenant as a trust fund for payment of the rents falling due hereunder.

 

**23.05**      In the event of any taking of less thanthe whole of the Building which does not result in a termination of this lease,or in the event of a taking for a temporary use or occupancy of all or any partof the Demised Premises which does not extend beyond the Expiration Date,Landlord, at its expense, and to the extent any award or awards shall besufficient for the purpose, shall proceed with reasonable diligence to repair,alter and restore the remaining parts of the Building and the Demised Premisesto substantially a building standard condition to the extent that the same maybe feasible and 

 

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soas to constitute a complete and tenantable Building and Demised Premises.

 

**23.06**      Should any part of the Demised Premises betaken to effect compliance with any law or requirement of public authorityother than in the manner hereinabove provided in this Article, then (i) if suchcompliance is the obligation of Tenant under this lease, Tenant shall not beentitled to any diminution or abatement of rent or other compensation fromLandlord there- for, but (ii) if such compliance is the obligation of Landlordunder this lease, the fixed rent hereunder shall be reduced and additionalrents under Article 5 shall be adjusted in the same manner as is provided inSection 23.02 according to the reduction in rentable area of the DemisedPremises resulting from such taking.

 

**23.07**      Any dispute which may arise between theparties with respect to the meaning or application of any of the provisions ofthis Article shall be determined by arbitration in the manner provided inArticle 34.

 

**ARTICLE 24**

 

**Surrender**

 

**24.01**      On the last day of the term of this lease,or upon any earlier termination of this lease, or upon any re-entry by Landlordupon the Demised Premises, Tenant shall quit and surrender the Demised Premisesto Landlord in good order, condition and repair, except for ordinary wear andtear and damage by fire or other casualty, and Tenant shall remove all ofTenant’s Property, and any improvements made subsequent to those initialimprovements made pursuant to Article 3 of this Lease, therefrom except asotherwise expressly provided in this lease and shall restore the DemisedPremises wherever such removal results in damage thereto.

 

**ARTICLE 25**

 

**Conditions of Limitation**

 

**25.01**      To the extent permitted by applicable lawthis lease and the term and estate hereby granted are subject to the limitationthat whenever Tenant shall make an assignment of the property of Tenant for thebenefit of creditors, or shall file a voluntary petition under any bankruptcyor insolvency law, or an involuntary petition alleging an act of bankruptcy orinsolvency shall be filed against Tenant under any bankruptcy or insolvencylaw, or whenever a petition shall be filed or against Tenant under thereorganization provisions of the United States Bankruptcy Act or under theprovisions of any law of like import, or whenever a petition shall be filed byTenant under the arrangement provisions of the United States Bankruptcy Act orunder the provisions of any law of like import, or whenever a permanentreceiver of Tenant or of or for the property of Tenant shall be appointed,then, Landlord, (a)  at any time afterreceipt of notice of the occurrence of any such event, or (b) if such eventoccurs without the acquiescence of Tenant, at any time after the eventcontinues for ninety (90) days, Landlord may give Tenant a notice of intentionto end the term of this lease at the expiration of five (5) days from the dateof service of such notice of intention, and upon the expiration of said five(5) day period this lease and the term and estate hereby granted, whether ornot the term shall theretofore have commenced, shall terminate with the sameeffect as if that day were the Expiration Date, but Tenant shall remain liablefor damages as provided in Article 27.

 

**25.02**      This lease and the term and estate herebygranted are subject to the further limitation that:

 

(a)           whenever Tenant shall default in the 

 

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paymentof any installment of fixed rent, or in the payment of any additional rent orany other charge payable by Tenant to Landlord, on any day upon which the sameought to be paid, and such default shall continue for three (3) days afterLandlord shall have given Tenant a notice specifying such default; or

 

(b)           whenever Tenant shall do or permit anything to be done,whether by action or inaction, contrary to any of Tenant’s obligationshereunder, and if such situation shall continue and shall not be remedied byTenant within thirty (30) days after Landlord shall have given to Tenant anotice specifying the same, or, in the case of a happening or default whichcannot with due diligence be cured within a period of thirty (30) days and thecontinuance of which for the period required for cure will not subject Landlordto the risk of criminal liability (as more particularly described in Section10.02) or termination of any superior lease or foreclosure of any superiormortgage, if Tenant shall not, (i) within said thirty (30) day period adviseLandlord of Tenant’s intention to duly institute all steps necessary to remedysuch situation, (ii) duly institute within said thirty (30) day period, andthereafter diligently prosecute to completion all steps necessary to remedy thesame and (iii) complete such remedy within such time after the date of thegiving of said notice of Landlord as shall reasonably be necessary; or

 

(c)             whenever any event shall occur orany contingency shall arise whereby this lease or the estate hereby granted orthe unexpired balance of the term hereof would, by operation of law orotherwise, devolve upon or pass to any person, firm or corporation other thanTenant, except as expressly permitted by Article 9; or

 

(d)           whenever Tenant shall abandon (as distinguished fromtemporary vacating) the Demised Premises (unless as a result of a casualty), or

 

(e)           when Tenant shall be in default in the observance orperformance of its obligations under any other lease in the Building, then inany of said cases set forth in the foregoing Subsections (a), (b), (c) (d) and(e), Landlord may give to Tenant a notice of intention to end the term of thislease at the expiration of ten (10) days from the date of the service of suchnotice of intention, and upon the expiration of said ten (10) days this leaseand the term and estate hereby granted, whether or not the term shalltheretofore have commenced, shall terminate with the same effect as if that daywere the Expiration Date, but Tenant shall remain liable for damages asprovided in Article 27.

 

**ARTICLE 26**

 

**Re-Entry By Landlord**

 

**26.01**      If Tenant shall default in the payment ofany installment of fixed rent, or of any additional rent, on any date uponwhich the same ought to be paid, and if such default shall continue for ten(10) days after Landlord shall have given to Tenant a notice specifying suchdefault, or if this lease shall expire as in Article 25 provided, Landlord orLandlord’s agents and employees may immediately or at any time thereafterre-enter the Demised Premises, or any part thereof, in the name of the whole,either by summary dispossess proceedings or by any suitable action orproceeding at law, or by force or otherwise, without being liable toindictment, prosecution or damages therefor, and may repossess the same, andmay remove any persons therefrom, to the end that Landlord may have, hold andenjoy the Demised Premises again as and of its first estate and interesttherein. The word re-enter, as herein used, is not restricted to its technicallegal meaning. In the event of any termination of this lease under theprovisions ofArticle 25 or if Landlord shall re-enter the Demised Premises under theprovisions of this Article or in the event of the termination of this lease, orof re-entry, 

 

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byor under any summary dispossess or other proceeding or action or any provisionof law by reason of default hereunder on the part of Tenant, Tenant shallthereupon pay to Landlord the fixed rent and additional rent payable by Tenantto Landlord up to the time of such termination of this lease, or of suchrecovery of possession of the Demised Premises by Landlord, as the case may be,and shall also pay to Landlord damages as provided in Article 27.

 

**26.02**      In the event of a breach or threatenedbreach by Tenant of any of its obligations under this lease, Landlord shallalso 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 or means of redress to which Landlord may lawfully be entitledat any time and Landlord may invoke any remedy allowed at law or in equity asif specific remedies were not provided for herein.

 

**26.03**      If this lease shall terminate under theprovisions of Article 25, or if Landlord shall re-enter the Demised Premisesunder the provisions of this Article, or in the event of the termination ofthis lease, or of re-entry, by or under any summary dispossess or otherproceeding or action or any provision of law by reason of default hereunder onthe part of Tenant, Landlord shall be entitled to retain all moneys, if any,paid by Tenant to Landlord, whether as advance rent, security or otherwise, butsuch moneys shall be credited by Landlord against and to the extent of anyfixed rent or additional rent due from Tenant at the time of such terminationor re-entry or, at Landlord’s option, against any damages payable by Tenantunder Article 27 or pursuant to law.

 

**ARTICLE 27**

 

**Damages**

 

**27.01**      If this lease is terminated under theprovisions of Article 25, or if Landlord shall re-enter the Demised Premisesunder the provisions of Article 26, or in the event of the termination of thislease, or of re-entry, by or under any summary dispossess or other proceedingor action or any provision of law by reason of default hereunder on the part ofTenant, Tenant shall pay to Landlord as damages, at the election of Landlord,either:

 

(a)           a sum which at the time of such termination of this leaseor at the time of any such re-entry by Landlord, as the case may be, representsthe then value of the excess, if any, of:

 

(1)           the aggregate of the fixed rent and the additional rentpayable hereunder which would have been payable by Tenant (conclusivelypresuming the additional rent to be the same as was payable for the yearimmediately preceding such termination) for the period commencing with suchearlier termination of this lease or the date of any such re-entry, as the casemay be, and ending with the Expiration Date, had this lease not so terminatedor had Landlord not so re-entered the Demised Premises; over

 

(2)           the aggregate rental value of the Demised Premises for thesame period; or

 

(b)           sums equal to the fixed rent and the additional rent (asabove presumed) payable hereunder which would have been payable by Tenant hadthis lease not so terminated, or had Landlord not so re-entered the DemisedPremises, payable upon the due dates therefor specified herein following suchtermination or such re-entry and until the Expiration Date, provided, however,that if Landlord shall relet the Demised Premises during said period, Landlordshall credit Tenant with the net rents received by Landlord from such reletting,such net rents to be determined by first deducting from the gross rents as andwhen received by Landlord from such

 

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relettingthe expenses incurred or paid by Landlord in terminating this lease or inre-entering the Demised Premises and in securing possession thereof, as well asthe expenses of reletting, including altering and preparing the DemisedPremises for new tenants, brokers’ commissions, and all other expenses properlychargeable against the Demised Premises and the rental therefrom; it beingunderstood that any such reletting may be for a period shorter or longer thanthe remaining term of this lease; but in no event shall Tenant be entitled toreceive any excess of such net rents over the sums payable by Tenant toLandlord hereunder, nor shall Tenant be entitled in any suit for the collectionof damages pursuant to this Subsection to a credit in respect of any net rentsfrom a reletting, except to the extent that such net rents are actuallyreceived by Landlord. If the Demised Premises shall be relet for a periodshorter than the remaining term of this Lease and Landlord shall actuallyreceive during such period, net rents in excess of the sums payable by Tenantto Landlord under this Lease during such period, then Landlord shall credit theamount of such excess against the sums payable by Tenant under this Leaseduring such subsequent periods for which the Demised Premises are not so relet.If the Demised Premises or any part thereof should be relet in combination withother space, then proper apportionment on a square foot basis (for equivalentspace) shall be made of the rent received from such reletting and of theexpenses of reletting.

 

If the Demised Premises or any part thereofbe relet by Landlord for the unexpired portion of the term of this lease, orany part thereof, before presentation of proof of such damages to any court,commission or tribunal, the amount of rent reserved upon such reletting shall, inthe case of an unaffiliated, bona fide third party only, prima facie, be thefair and reasonable rental value for the Demised Premises, or part thereof, sorelet during the term of the reletting.

 

**27.02**      Suit or suits for the recovery of suchdamages, or any installments thereof, may be brought by Landlord from time totime at its election, and nothing contained herein shall be deemed to requireLandlord to postpone suit until the date when the term of this lease would haveexpired if it had not been so terminated under the provisions of Article 25, orunder any provision of law, or had Landlord not re-entered the Demised Premises.Nothing herein contained shall be construed to limit or preclude recovery byLandlord against Tenant of any sums or damages to which, in addition to thedamages particularly pro- vided above, Landlord may lawfully be entitled byreason of any default hereunder on the part of Tenant. Nothing herein containedshall be construed to limit or prejudice the right of Landlord to prove for andobtain as liquidated damages by reason of the termination of this lease orre-entry 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, equal to, or less than any of thesums referred to in Section 27.01.

 

**ARTICLE 28**

**Waiver**

 

**28.01**      Tenant, for Tenant, and on behalf of anyand all persons claiming through or under Tenant, including creditors of allkinds, does hereby waive and surrender all right and privilege which they orany of them might have under or by reason of any present or future law, toredeem the Demised Premises or to have a continuance of this lease for the termhereby demised after being dispossessed or ejected therefrom by process of lawor under the terms of this lease or after the termination of this lease asherein provided.

 

**28.02**      In the event that Tenant is in arrears inpayment of fixed rent or additional rent hereunder, Tenant waives Tenant’sright, if any, to designate the items against which any payments made by Tenantare to be credited, and Tenant agrees that Landlord may apply any payments madeby

 

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Tenantto any items it sees fit, irrespective of and notwithstanding any designationor request by Tenant as to the items against which any such payments shall becredited.

 

**28.03**      Landlord and Tenant hereby waive trial by juryin any action, proceeding or counterclaim (except for a mandatory counterclaimwhich would be waived if not asserted) brought by either against the other onany matter whatsoever arising out of or in any way connected with this lease,the relationship of Landlord and Tenant, Tenant’s use or occupancy of theDemised Premises, including any claim of injury or damage, or any emergency orother statutory remedy with respect thereto.

 

**28.04**      The provisions of Articles 17 and 18 shallbe considered expressed agreements governing the services to be furnished byLandlord, and Tenant agrees that any laws and/or requirements of publicauthorities, now or hereafter in force, shall have no application in connectionwith any enlargement of Landlord’s obligations with respect to such servicesunless Tenant agrees, in writing, to pay to Landlord, as additional rent,Landlord’s reasonable charges for any additional services provided.

 

**28.05**      If, at any time during the term of thislease, any requirement of public authority shall have the effect of limiting,for any period of time, the amount of the rents payable by Tenant, orreceivable by Landlord, under this lease, and the maximum rents so permitted tobe paid by Tenant, or received by Landlord, hereunder shall be less than therents herein reserved, then:

 

(a)           throughout the period of limitation, Tenant shall remainliable for the maximum amount of rents that is lawfully payable; and

 

(b)           if and when the period of limitation ends, the requirementof public authority imposing such limitation is repealed, or such limitation isrestrained or rendered unenforceable by any order or ruling of a court ofappropriate jurisdiction:

 

thereafter, Tenant shall payto Landlord all of the rents reserved under this lease, all of which shall becalculated as if there had been no intervening period of limitation.

 

**ARTICLE 29**

 

**No Other Waivers Or Modifications**

 

**29.01**           The failure of either party to insistin any one or more instances upon the strict performance of any one or more ofthe obligations of this lease, or to exercise any election herein contained,shall not be construed as a waiver or relinquishment for the future of theperformance of such one or more obligations of this lease or of the right toexercise such election, but the same shall continue and remain in full forceand effect with respect to any subsequent breach, act or omission. No executoryagreement hereafter made between Landlord and Tenant shall be effective tochange, modify, waive, release, discharge, terminate or effect an abandonmentof this lease, in whole or in part, unless such executory agreement is inwriting, refers expressly to this lease and is signed by the party against whomenforcement of the change, modification, waiver, release, discharge ortermination or effectuation of the abandonment is sought.

 

**29.02**           The following specific provisions ofthis Section shall not be deemed to limit the generality of any of theforegoing provisions of this Article:

 

(a)         no agreement to accept a surrender ofall or any 

 

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partof the Demised Premises shall be valid unless in writing and signed by Landlord.The delivery of keys to an employee of Landlord or of its agent shall notoperate as a termination of this lease or a surrender of the Demised Premises. IfTenant shall at any time request Landlord to sublet the Demised Premises forTenant’s account, Landlord or its agent is authorized to receive said keys forsuch purposes without releasing Tenant from any of its obligations under thislease, and Tenant hereby releases Landlord from any liability for loss ordamage to any of Tenant’s property in connection with such subletting.

 

(b)        the receipt by Landlord of rent withknowledge of breach of any obligation of this lease shall not be deemed awaiver of such breach;

 

(c)         no payment by Tenant or receipt byLandlord of a lesser amount than the correct fixed rent or additional rent duehereunder shall be deemed to be other than a payment on account, nor shall anyendorsement or statement on any check or any letter accompanying any check orpayment be deemed an accord and satisfaction, and Landlord may accept suchcheck or payment without prejudice to Landlord’s right to recover the balanceor pursue any other remedy in this lease or at law provided.

 

**ARTICLE 30**

 

**Curing Tenant’s Defaults, Additional Rent**

 

**30.01**                           (a)           If Tenant shall default in theperformance of any of Tenant’s obligations under this lease, Landlord, withoutthereby waiving such default, may (but shall not be obligated to) perform thesame for the account and at the expense of Tenant, without notice, in a case ofemergency, and in any other case, only if such default continues after theexpiration of (i) ten (10) business days from the date Landlord gives Tenant noticeof intention so to do, or (ii) the applicable grace period provided in Section25.02 or elsewhere in this lease for cure of such default, whichever occurslater;

 

(b)        If Tenant is late in making any paymentdue to Landlord from Landlord under this lease for five (5) or more days, theninterest shall become due and owing to Landlord on such payment from the datewhen it was due computed at the greater of (A) one and 25/100 (1.25%) percentper month or (B) two (2%) percent per annum over the then prime rate of ChaseManhattan Bank, N.A. but in no event in excess of the maximum legal rate ofinterest chargeable to corporations in the State of New York.

 

**30.02**      Bills for any expenses incurred byLandlord in connection with any such performance by it for the account ofTenant, and bills for all costs, expenses and disbursements of every kind andnature whatsoever, including reasonable counsel fees, involved in collecting orendeavoring to collect the fixed rent or additional rent or any part thereof orenforcing or endeavoring to enforce any rights against Tenant, under or inconnection with this lease, or pursuant to law, including any such cost,expense and disbursement involved in instituting and prosecuting summaryproceedings, as well as bills for any property, material, labor or servicesprovided, furnished, or rendered, by Landlord or at its instance to Tenant, maybe sent by Landlord to Tenant monthly, or immediately, at Landlord’s option,and, shall be due and payable in accordance with the terms of such bills.

 

**ARTICLE 31**

 

**Broker**

 

**31.01**           Landlord and Tenant covenant, warrantand represent to each other that there was no broker or finder instrumental inconsummating this lease and that no conversations or negotiations were had bysuch party with any broker or finder concerning the renting of the DemisedPremises. 

 

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Landlordand Tenant agree to indemnify and hold the other harmless from and against anyactions, suits or claims (including, without limitation, legal fees, costs andexpenses) for a brokerage, finder or other commission or fee arising out of anyconversations or negotiations had by such party with any broker or finderconcerning the renting of the Demised Premises.

 

**ARTICLE 32**

 

**Notices**

 

**32.01**           Any notice, statement, demand orother communication required or permitted to be given, rendered or made byeither party to the other, pursuant to this lease or pursuant to any applicablelaw or requirement of public authority, shall be in writing (whether or not sostated elsewhere in this lease) and shall be deemed to have been properlygiven, rendered or made, only if sent by a) personal delivery, b) reputableovernight courier or c)registered or certified mail, return receipt requested,addressed to the other party at the address hereinabove set forth (except thatafter the Commencement Date, Tenant’s address, unless Tenant shall give noticeto the contrary, shall be the Building), and shall be deemed to have beengiven, rendered or made on the day so mailed, unless mailed outside of theState of New York, in which case it shall be deemed to have been given,rendered or made on the expiration of the normal period of time for delivery ofmail from the post-office of origin to the post-office of destination. Noticesto Tenant shall be sent to the attention of David Barrett, with a copy to: JonathanMintzer. Notices to Landlord shall be sent to Chief Financial Officer, with acopy to: Real Estate Counsel. Either party may, by notice as aforesaid,designate a different address or addresses for notices, statements, demand orother communications intended for it.

 

**ARTICLE 33**

 

**Estoppel Certificate, Memorandum**

 

**33.01**           Each party agrees, at any time andfrom time to time, as requested by the other party, upon not less than ten (10)days’ prior notice, to execute and deliver to the other a statement certifying(a) that this lease is unmodified and in full force and effect (or if therehave been modifications, that the same is in full force and effect as modifiedand stating the modifications) and whether any options granted to Tenantpursuant to the provisions of this lease have been exercised, (b) certifyingthe dates to which the fixed rent and additional rent have been paid and theamounts thereof, and stating whether or not, to the best knowledge of thesigner, the other party is in default in performance of any of its obligationsunder this lease, and, if so, specifying each such default of which the signermay have knowledge, it being intended that any such statement deliveredpursuant hereto may be relied upon by others with whom the party requestingsuch certificate may be dealing. Additionally, Tenant’s Statement shall containsuch other information relating to this Lease and the Demised Premises as shallbe reasonably required by the holder or proposed holder of any superior mort-gage or the lessor or proposed lessor under any superior lease.

 

**33.02**           At the request of either party,Landlord and Tenant shall promptly execute, acknowledge and deliver a mutuallyacceptable memorandum with respect to this lease sufficient for recording. Suchmemorandum shall not in any circumstances be deemed to change or otherwiseaffect any of the obligations or provisions of this lease.

 

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**ARTICLE 34**

 

**Arbitration**

 

**34.01**           Either party may request arbitrationof any matter in dispute wherein arbitration is expressly provided in thislease as the appropriate remedy. The party requesting arbitration shall do soby giving notice to that effect to the other party, and both parties shallpromptly thereafter jointly apply to the American Arbitration Association (orany organization successor thereto) in the City and County of New York for theappointment of a single arbitrator.

 

**34.02**           The arbitration shall be conducted inaccordance with the then prevailing rules of the American ArbitrationAssociation (or any organization successor thereto) in the City and County ofNew York. In rendering such decision and award, the arbitrator shall not addto, subtract from or otherwise modify the provisions of this lease.

 

**34.03**           If for any reason whatsoever awritten decision and award of the arbitrator shall not be rendered withinninety (90) days after the appointment of such arbitrator, then at any timethereafter before such decision and award shall have been rendered either partymay apply to the Supreme Court of the State of New York or to any other courthaving jurisdiction and exercising the functions similar to those now exercisedby such court, by action, proceeding or otherwise (but not by a new arbitrationproceeding) as may be proper to determine the question in dispute consistentlywith the provisions of this lease.

 

**34.04**           All the expenses of the arbitrationshall be borne by the parties equally.

 

**ARTICLE 35**

 

**No Other Representations, Construction,**

**Governing Law, Consents**

 

**35.01**           Tenant expressly acknowledges andagrees that Landlord has not made and is not making, and Tenant, in executingand delivering this lease, is not relying upon, any warranties,representations, promises or statements, except to the extent that the same areexpressly set forth in this lease or in any other written agreement which maybe made between the parties concurrently with the execution and delivery ofthis lease and shall expressly refer to this lease. This lease and said otherwritten agreement(s) made concurrently herewith are hereinafter referred to asthe **“lease documents”**. It isunderstood and agreed that all understandings and agreements heretofore hadbetween the parties are merged in the lease documents, which alone fully andcompletely express their agreements and that the same are entered into afterfull investigation, neither party relying upon any statement or representationnot embodied in the lease documents, made by the other.

 

**35.02**           If any of the provisions of thislease, or the application thereof to any person or circumstances, shall, to anyextent, be invalid or unenforceable, the remainder of this lease, or theapplication of such provision or provisions to persons or circumstances otherthan those as to whom or which it is held invalid or unenforceable, shall notbe affected thereby, and every provision of this lease shall be valid andenforceable to the fullest extent permitted by law.

 

**35.03**           This lease shall be governed in allrespects by the laws of the State of New York.

 

**35.04**           Wherever in this lease Landlord’sconsent or approval is required, if Landlord shall refuse such consent orapproval, Tenant in no event shall be entitled to make, nor shall Tenant make,any claim, and Tenant hereby waives any claim, for money damages (nor shallTenant claim any money damages by way of set-off, counterclaim or defense)based upon any claim or assertion by Tenant that Landlord unreasonably withheldor unreason- ably 

 

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delayedits consent or approval. Tenant’s sole remedy shall be an action or proceedingto enforce any such provision, for specific performance, injunction ordeclaratory judgment.

 

**ARTICLE 36**

 

**Parties Bound**

 

**36.01**           The obligations of this lease shallbind and benefit the successors and assigns of the parties with the same effectas if mentioned in each instance where a party is named or referred to, exceptthat no violation of the provisions of Article 9 shall operate to vest anyrights in any successor or assignee of Tenant and that the provisions of thisArticle shall not be construed as modifying the conditions of limitationcontained in Article 25. However, the obligations of Landlord under this leaseshall not be binding upon Landlord herein named with respect to any periodsubsequent to the transfer of its interest in the Building as owner or lesseethereof and in event of such transfer said obligations shall thereafter bebinding upon each transferee of the interest of Landlord herein named as suchowner or lessee of the Building, but only with respect to the period endingwith a subsequent transfer within the meaning of this Article.

 

**36.02**           If Landlord shall be an individual,joint venture, tenancy in common, co-partnership, unincorporated association,or other unincorporated aggregate of individuals and/or entities or acorporation, Tenant shall look only to such Landlord’s estate and property inthe Building (or the proceeds thereof) and, where expressly so provided in thislease, to off- set against the rents payable under this lease, for thesatisfaction of Tenant’s remedies for the collection of a judgment (or otherjudicial process) requiring the payment of money by Landlord in the event of anydefault by Landlord hereunder, and no other property or assets of such Landlordor any partner, member, officer or director thereof, disclosed or undisclosedshall be subject to levy, execution 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 or occupancy ofthe Demised Premises.

 

**ARTICLE 37**

 

**Certain Definitions And Construction**

 

**37.01**           For the purposes of this lease andall agreements supplemental to this lease, unless the context otherwiserequires the definitions set forth in Exhibit E annexed hereto shall beutilized.

 

**37.02**           The various terms which areitalicized and defined in other Articles of this lease or are defined in Exhibitsannexed hereto, shall have the meanings specified in such other Articles andsuch Exhibits for all purposes of this lease and all agreements supplementalthereto, unless the context shall otherwise require.

 

**ARTICLE 38**

 

**Adjacent Excavation And Construction; Shoring; Vaults**

 

**38.01**           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 from injury or damage and to support the same by properfoundations without any claim for damages or indemnity against Landlord, ordiminution or 

 

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abatement or rent.

 

**38.02**           No vaults, vault space or area,whether or not enclosed or covered, not within the property line of theBuilding is leased hereunder, anything contained in or indicated on any sketch,blue print or plan or anything contained elsewhere in this lease to thecontrary notwithstanding. Landlord makes no representation as to the locationof the property line of the Building. All vaults and vault space and all suchareas not within the property line of the Building, which Tenant may bepermitted to use and/or occupy, is to be used and/or occupied under a revocablelicense, and if any such license be revoked, or if the amount of such space orarea be diminished or required by any federal, state or municipal authority orpublic utility, Landlord shall not be subject to any liability nor shall Tenantbe entitled to any compensation or diminution or abatement of rent, nor shallsuch revocation, diminution or requisition be deemed constructive or actualeviction. Any tax, fee or charge of municipal authorities for such vault orarea shall be paid by Tenant.

 

**ARTICLE 39**

 

**Right of First Refusal**

 

**39.01**           Tenant shall have no right of firstrefusal on any space in the Building.

 

**ARTICLE 40**

 

**Assumption of Tenant’s Current Lease**

 

**40.01       **As of the date of execution of this Lease, Tenantoccupies premises at 888 Seventh Avenue (the Current Premises) in the City,County and State of New York pursuant to lease, (hereinafter the **“Current Lease”**). Landlord hereby agreesthat it shall assume of all rights and obligations of Tenant under the currentLease on the later of July 1, 2006 or the date on which Tenant completelyvacates the Current Premises and surrenders them to Landlord. Landlord herebyagrees to indemnify and hold harmless Tenant from any claim for rent oradditional rent due under the lease after the date that Tenant vacates thecurrent Premises.

 

**ARTICLE 41**

 

**Renewal Option**

 

**41.01**           Provided that this Lease shall be infull force and effect without an uncured monetary default on the part of Tenanthereunder, on the Expiration Date, Tenant shall have the option (hereinafterreferred to as the **“Renewal Option”**)to renew this Lease for a renewal term (hereinafter referred to as the **“Renewal Term”**) of ten (10) years, tocommence on the day next succeeding the Expiration Date and to expire on theday which shall be the tenth (10th) anniversary of the Expiration Date. Tenantshall exercise the Renewal Option by sending written notice thereof(hereinafter referred to as a **“Renewal Notice”**)to Landlord by certified mail, return receipt requested, on or before the daywhich shall be twelve (12) months next preceding the Expiration Date. If Tenantshall send a Renewal Notice within the time and in the manner hereinbeforeprovided, this Lease shall be deemed renewed for the Renewal Term upon theterms, covenants and conditions hereinafter contained. If Tenant shall fail tosend a Renewal Notice within the time and in the manner hereinbefore provided,the Renewal Option shall cease and terminate, and Tenant shall have no furtheroptions to renew this Lease.

 

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**41.02**           The Renewal Term, if any, shall beupon, and subject to, all of the terms, covenants and conditions provided inthis Lease for the original term hereof, except that:

 

(a)           Any terms, covenants, or conditions hereof that areexpressly or by their nature inapplicable to the Renewal Term (including,without limitation, Articles 3 and 4 and Exhibit C hereof with respect to theRenewal Term) shall not apply during the Renewal Term;

 

(b)  The annual fixed rent payable by Tenantduring the Renewal Term, (the Renewal Fixed Rent) subject to adjustments asotherwise provided in this Lease, shall be at Fair Market Value, which shall bedetermined as follows in the succeeding sections of this Article, but in noevent shall it be less than the fixed rent payable for the last year under thisLease. Furthermore, the Renewal Fixed Rent shall be adjusted on the FifthAnniversary of the Renewal Term (June 30, 2022) to reflect Fair Market Rent(the Adjusted Renewal Fixed Rent). The Adjusted Renewal Fixed Rent shall not beless than the higher of a) the fixed rent under this lease or b) the RenewalFixed Rent.

 

**41.03**      Landlordand Tenant shall have twenty (20) days after Landlord receives the exercisenotice in which to agree on the Renewal Fixed Rent during the Renewal Term. Inno event shall the Renewal Fixed Rent for the Renewal Term be less than theFixed Rent in effect immediately prior to the Extension Term in question.

 

**41.04**  IfLandlord and Tenant are unable to agree upon the Renewal Fixed Rent for theRenewal Term within such twenty (20) day period, then within ten (10) daysafter the expiration of the twenty (20) day period, each party, by givingnotice to the other party, shall appoint a real estate appraiser who is acurrent member of the American Institute of Real Estate Appraisers, with atleast ten (10) years of experience appraising the rental value of commercialspace comparable to the Premises in the Midtown Manhattan area, to determinethe Fair Market Rent. Fair Market Rent shall mean the monthly amount that awilling, new tenant would pay and a willing landlord would accept at arm’slength for space in a comparable building, with comparable improvements, in acomparable location, based upon highest and best use and giving appropriateconsideration to monthly rental rates per rentable square foot, the presence orabsence of rent escalation clauses such as operating expense and taxpass-throughs, size and location of premises being leased and other generallyapplicable terms and conditions of tenancy. If the two (2) appraisers areunable to agree on the Fair Market Rent for the Renewal Term within fifteen(15) days, they shall select a third appraiser meeting the qualificationsstated in this Section within five (5) days after the last day the two (2)appraisers are given to set the Fair Market Rent for the Renewal Term and shalleach deliver to the third appraiser within such five (5) day period suchappraiser’s written determination of the Fair Market Rent. The third appraiser,however selected, shall be a person who has not previously acted in anycapacity for either party. Within ten (10) days after the selection of thethird appraiser, the third appraiser shall select one of the two appraisalssubmitted by the first two appraisers as being closest to the Fair Market Rentfor the Renewal Term and such appraised amount shall be the Fair Market Rentfor the Renewal Term. Each party shall be responsible for the costs, chargesand fees of the appraiser appointed by that party plus one-half of the cost ofthe third appraiser.

 

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

 

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|   | **LANDLORD**:                       |
|--------|-------------------------------------|
|   |                                |
|   | **HEARST  COMMUNICATIONS, INC.**    |
|   |                                |
|   |                                |
|   | By:                                 |   /s/ Ronald  Doerfler |   |
|   |                                | Sr. Vice President and |
|   |                                | Chief Financial Officer |
|   |                                |
|   |                                |
|   | **TENANT**:                         |
|   |                                |
|   | **HEARST-ARGYLE  TELEVISION, INC.** |
|   |                                |
|   |                                |
|   | By:                                 |  /s/ Harry T. Hawks |   |
|   |                                | Executive Vice President |
|   |                                | and Chief Financial Officer |

 

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**EXHIBIT A**

 

**Description**

 

**ALL**that certain lot, piece or parcel of land, situate, lying and being in theBorough of Manhattan, City, County and State of New York, bounded and describedas follows:

 

Block 1047, Lots 1601 and1602 on the tax map of the City of New York.

 

A-1

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**EXHIBIT B**

 

**Floor Plan**

 

 

(Onfile with the Company)

 

B-1

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**EXHIBIT C**

 

 

(Onfile with the Company)

 

C-1

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**EXHIBIT D**

 

**Rules and Regulations**

 

1.             The rights of tenants in the entrances, corridors andelevators of the Building are limited to ingress to and egress from the tenants’premises for the tenants and their employees, licensees and invitees, and notenant shall use, or permit the use of, the entrances, corridors, or elevatorsfor any other purpose. No tenant shall invite to the tenant’s premises, orpermit the visit of, persons in such numbers or under such conditions as tointerfere with the use and enjoyment of any of the entrances, corridors,elevators and other facilities of the Building by other tenants. Except asprovided to the contrary in Section 1.02 of this Lease, fire exits andstairways are for emergency use only, and they shall not be used for any otherpurpose by the tenants, their employees, licensees or invitees. No tenant shallencumber or obstruct, or permit the encumbrance or obstruction of any of thesidewalks, entrances, corridors, elevators, fire exits or stairways of theBuilding. The Landlord reserves the right to control and operate the publicportions of the Building and the public facilities, as well as facilitiesfurnished for the common use of the tenants, in such manner as it deems bestfor the benefit of the tenants generally.

 

2.             The Landlord may refuse admission to the Buildingoutside of ordinary business hours to any person not known to the watchman incharge or not having a pass issued by the Landlord or the tenant whose premisesare to be entered or not otherwise properly identified, and may require allpersons admitted to or leaving the Building outside of ordinary business hoursto register. Any person whose presence in the Building at any time shall, inthe judgment of the Landlord, be prejudicial to the safety, character,reputation and interests of the Building or of its tenants may be denied accessto the Building or may be ejected therefrom. In case of invasion, riot, publicexcitement or other commotion, the Landlord may prevent all access to theBuilding during the continuance of the same, by closing the doors or otherwise,for the safety of the tenants and protection of property in the Building. TheLandlord may require any person leaving the Building with any package or otherobject to exhibit a pass from the tenant from whose premises the package orobject is being removed, but the establishment and enforcement of suchrequirement shall not impose any responsibility on the Landlord for theprotection of any tenant against the removal of property from the premises ofthe tenant. The Landlord shall, in no way, be liable to any tenant for damagesor loss arising from the admission, exclusion or ejection of any person to orfrom the tenant’s premises or the Building under the provisions of this rule. Canvassing,soliciting or peddling in the Building is prohibited and every tenant shallco-operate to prevent the same.

 

3.             No tenant shall obtain or accept for use in its premisesbarbering, boot blacking, floor polishing, or other similar services or food orbeverage service (other than reasonably customary deliveries of meals fromoutside vendors) from any persons not authorized by the Landlord in writing tofurnish such services, provided that the charges for such services by personsauthorized by the Landlord are not excessive. Such services shall be furnishedonly at such hours, in such places within the tenant’s premises and under suchreasonable regulations as may be fixed by the Landlord.

 

4.             No lettering, sign, advertisement, notice or objectshall be displayed in or on the windows or doors, or on the outside of anytenant’s premises, or at any point inside any tenant’s premises where the samemight be visible outside of such premises, except that the name of the tenantmay be displayed on the entrance door of the tenant’s premises, and in theelevator lobbies of the floors which are occupied entirely by any tenant,subject to the approval of the Landlord as to the size, color and style of suchdisplay, such approval not to be unreasonably withheld or delayed.

 

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5.             No awnings or other projections over or around thewindows shall be installed by any tenant, and only such window blinds as aresupplied or permitted by the Landlord shall be used in a tenant’s premises. Linoleum,tile or other floor covering shall be laid in a tenant’s premises only in amanner approved by the Landlord.

 

6.             The Landlord shall have the right to reasonablyprescribe the weight and position of safes and other objects of excessiveweight, and no safe or other object whose weight exceeds the lawful load forthe area upon which it would stand shall be brought into or kept upon a tenant’spremises. If, in the reasonable judgment of the Landlord, it is necessary todistribute the concentrated weight of any heavy object, the work involved insuch distribution shall be done at the expense of Tenant and in such manner asthe Landlord shall reasonably determine. The moving of safes and other heavyobjects shall take place only outside of ordinary business hours upon previousnotice to the Landlord, and the persons employed to move the same in and out ofthe Building shall be reasonably acceptable to the Landlord and, if so requiredby law, shall hold a Master Rigger’s license. Freight, furniture, businessequipment, merchandise and bulky matter of any description shall be deliveredto and removed from the premises only in the freight elevators and through theservice entrances and corridors, and only during hours and in a manner approvedby the Landlord, which approval will not be unreasonably withheld or delayed.Arrangements will be made by the Landlord with any tenant for moving largequantities of furniture and equipment into or out of the building.

 

7.             No machines or mechanical equipment of any kindinstalled or operated in any tenant’s premises shall be placed or operated asto disturb other tenants but machines and mechanical equipment which may bepermitted to be installed and used in a tenant’s premises shall be so equipped,installed and maintained by such tenant as to prevent any disturbing noise,vibration or electrical or other interference from being transmitted from suchpremises to any other area of the Building.

 

8.             No noise, including the playing of any musicalinstruments, radio or television, which, in the judgment of the Landlord, mightdisturb other tenants in the Building, shall be made or permitted by anytenant, and no cooking shall be done in the tenant’s premises, except asexpressly approved by the Landlord. Notwithstanding the foregoing, Landlordacknowledges that Tenant is in the television business, and Tenant shall bepermitted to have televisions and radios in the Demised Premises. Nothing shallbe done or permitted in any tenant’s premises, and nothing shall be broughtinto or kept in any tenant’s premises, which would impair or interfere with anyof the Building services or the proper and economic heating, cleaning or otherservicing of the Building or the premises, or the use or enjoyment by any othertenant of any other premises, nor shall there be installed by any tenant anyventilating, air conditioning, electrical or other equipment of any kind which,in the reasonable judgment of the Landlord, might cause any such impairment orinterference. No dangerous, inflammable, combustible or explosive object ormaterial shall be brought into the Building by any tenant or with thepermission of any tenant. Any cuspidors or similar containers or receptaclesused in any tenant’s premises shall be cared for and cleaned by and at theexpense of the tenant.

 

9.             No acids, vapors or other materials shall be dischargedor permitted to be discharged into the waste lines, vents or flues of theBuilding which may damage them. The water and wash closets and other plumbingfixtures in or serving any tenant’s premises shall not be used for any purposeother than the purposes for which they were designed or constructed, and nosweepings, rubbish, rags, acids or other foreign substances shall be depositedtherein.

 

10.           No additional locks or bolts of any kind shall be placedupon any of the doors or windows in any tenant’s premises and no lock on anydoor therein shall be changed or altered in any respect. Additional keys for a 

 

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tenant’spremises and toilet rooms shall be procured only from the Landlord, which maymake a reasonable charge therefor. Upon the termination of a tenant’s lease,all keys of the tenant’s premises and toilet rooms shall be delivered to theLandlord.

 

11.           All entrance doors in each tenant’s premises shall be leftlocked and all windows shall be left closed by the tenant when the tenant’spremises are not in use. Entrance doors shall not be left open at any time.

 

12.           Hand trucks not equipped with rubber tires and side guardsshall not be used within the Building.

 

13.           All windows in each tenant’s premises shall be kept closedand all blinds therein, if any, above the ground floor shall be lowered whenand as reasonably required because of the position of the sun, during theoperation of the Building air-conditioning system to cool or ventilate the tenant’spremises.

 

14.           The Landlord reserves the right to rescind, alter or waiveany rule or regulation at any time prescribed for the Building when, in itsjudgment, it deems it reasonably necessary, desirable or proper for its bestinterest and for the best interests of the tenants, and no alteration or waiverof any rule or regulation in favor of one tenant shall operate as an alterationor waiver in favor of any other tenant. The Landlord shall not be responsibleto any tenant for the non-observance or violation by any other tenant of any ofthe rules and regulations at any time prescribed for the Building.

 

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**EXHIBIT E**

 

**Definitions**

 

(a)           The term mortgage shall include an indenture ofmortgage and deed of trust to a trustee to secure an issue of bonds, and theterm mortgagee shall include such a trustee.

 

(b)           The terms include, including and such asshall each be construed as if followed by the phrase “without being limited to”.

 

(c)           The term obligations of this lease, and words oflike import, shall mean the covenants to pay rent and additional rent underthis lease and all of the other covenants and conditions contained in thislease. Any provision in this lease that one party or the other or both shall door not do or shall cause or permit or not cause or permit a particular act,condition, or circumstance shall be deemed to mean that such party so covenantsor both parties so covenant, as the case may be.

 

(d)           The term Tenant’s obligations hereunder, and wordsof like import, and the term Landlord’s obligations hereunder, and wordsof like import, shall mean the obligations of this lease which are to beperformed or observed by Tenant, or by Landlord, as the case may be. Referenceto performance of either party’s obligations under this lease shall beconstrued as “performance and observance”.

 

(e)           Reference to Tenant being or not being in defaulthereunder, or words of like import, shall mean that Tenant is in default inthe performance of one or more of Tenant’s obligations hereunder after thegiving of any required notice and expiration of any applicable grace or cureperiod, or that Tenant is not in default in the performance of any of Tenant’sobligations hereunder after the giving of any required notice and expiration ofany applicable grace or cure period, or that a condition of the characterdescribed in Section 25.01 has occurred and continues or has not occurred ordoes not continue, as the case may be.

 

(f)            References to Landlord as having no liability toTenant or being without liability to Tenant, shall mean that Tenantis not entitled to terminate this lease, or to claim actual or constructiveeviction, partial or total, or to receive any abatement or diminution of rent,or to be relieved in any manner of any of its other obligations hereunder, orto be compensated for loss or injury suffered or to enforce any other kind ofliability whatsoever against Landlord under or with respect to this lease orwith respect to Tenant’s use or occupancy of the Demised Premises.

 

(g)           The term laws and/or requirements of public authoritiesand words of like import shall mean laws and ordinances of any or all of theFederal, state, city, county and borough governments and rules, regulations,orders and/or directives of any or all departments, subdivisions, bureaus,agencies or offices thereof, or of any other governmental, public orquasi-public authorities, having jurisdiction in the premises, and/or thedirection of any public officer pursuant to law.

 

(h)           The term requirements of insurance bodies and wordsof like import shall mean rules, regulations, orders and other requirements ofthe New York Board of Fire Underwriters and/or the New York Fire InsuranceRating Organization and/or any other similar body performing the same orsimilar functions and having jurisdiction or cognizance of the Building and/orthe Demised Premises.

 

(i)            The term repair shall be deemed to includerestoration and 

 

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replacementas may be necessary to achieve and/or maintain good working order andcondition.

 

(j)            Reference to termination of this lease includesexpiration or earlier termination of the term of this lease or cancellation ofthis lease pursuant to any of the provisions of this lease or to law. Upon atermination of this lease, the term and estate granted by this lease shall endat noon of the date of termination as if such date were the date of expirationof the term of this lease and neither party shall have any further obligationor liability to the other after such termination (i) except as shall beexpressly provided for in this lease, or (ii) except for such obligation as byits nature or under the circumstances can only be, or by the provisions of thislease, may be, performed after such termination, and, in any event, unlessexpressly otherwise provided in this lease, any liability for a payment whichshall have accrued to or with respect to any period ending at the time oftermination shall survive the termination of this lease.

 

(k)           The term in full force and effect when herein usedin reference to this lease as a condition to the existence or exercise of aright on the part of Tenant shall be construed in each instance as includingthe further condition that at the time in question no default on the part ofTenant exists, and no event has occurred which has continued to exist for suchperiod of time (after the notice, if any, required by this lease), as wouldentitle Landlord to terminate this lease or to dispossess Tenant.

 

(l)            The term Tenant shall mean Tenant herein named orany assignee or other successor in interest (immediate or remote) of Tenantherein named, while such Tenant or such assignee or other successor ininterest, as the case may be, is in possession of the Demised Premises as ownerof the Tenant’s estate and interest granted by this lease and also, if Tenantis not an individual or a corporation, all of the persons, firms andcorporations then comprising Tenant.

 

(m)          Words and phrases used in the singular shall be deemed toinclude the plural and vice versa, and nouns and pronouns used in anyparticular gender shall be deemed to include any other gender.

 

(n)           The rule of ejusdem generis shall not be applicableto limit a general statement following or referable to an enumeration ofspecific matters to matters similar to the matters specifically mentioned.

 

(o)           All references in this lease to numbered Articles,numbered Sections and lettered Exhibits are references to Articles and Sectionsof this lease, and Exhibits annexed to (and thereby made part of) this lease,as the case may be, unless expressly otherwise designated in the context.

 

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**EXHIBIT F**

 

**Cleaning Specifications**

 

l. General.

 

All linoleum, rubber, asphalt tile and othersimilar types of flooring (that may be waxed) to be swept nightly, usingapproved dust-check type of mop.

 

All carpeting and rugs to be carpet sweptnightly and vacuum cleaned once per week.

 

Hand dust and wipe clean all furniture,fixtures and window sills nightly.

 

Empty and clean all waste receptaclesnightly.

 

Empty and clean all ash trays and screen allsand urns nightly.

 

Dust interior of all waste disposal cans andbaskets nightly.

 

Wash clean all water fountains and coolersnightly.

 

Hand dust all door and other ventilating louverswithin reach, as necessary.

 

Dust all telephones as necessary.

 

Dust chair rails, trim, baseboards nightly.

 

Sweep all private stairway structuresnightly.

 

2.  Lavatories in the Core

 

Sweep and wash all lavatory floors nightlyusing proper disinfectants. Wash and polish all mirrors, powder shelves, brightwork and enameled surfaces in all lavatories nightly.

 

Scour, wash and disinfect all basins, bowlsand urinals throughout all lavatories, nightly.

 

Wash all toilet seats, nightly.

 

Empty paper towel receptacles and transportwastepaper to designated area in basements, nightly.

 

Fill toilet tissue and towel holders nightly.(Towels and soap to be furnished by Tenant).

 

Empty sanitary disposal receptacles, nightly.

 

Thoroughly wash and polish all wall tile andstall surfaces weekly.

 

3.  High Dusting

 

Dust all air conditioning grills, venetianblinds, frames, charts, graphs and similar wall hangings and vertical surfacesnot reached in nightly cleaning, quarterly.

 

Cleaning of light fixtures shall be at therequest of and for account of Tenant.

 

4.  Glass

 

Exterior windows to be cleaned inside andoutside approximately once every 10 

 

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weeks, weather permitting.

 

5.  Conditions

 

As herein used “nightly” means five nights aweek, Monday through Friday, during regular cleaning hours (between 6:00 P.M.and 6:00 A.M.) and excludes legal and union holidays.

 

Tenant will allow the electricity, power andhot and cold water in the Demised Premises to be used for cleaning during theregular cleaning hours.

 

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