exv10w3






Exhibit 10.3




AGREEMENT OF LEASE




between




THE RECTOR, CHURCH-WARDENS

AND VESTRYMEN OF TRINITY CHURCH IN

THE CITY OF NEW YORK,




Landlord




and




WATERFRONT MEDIA INC.




Tenant




Dated: August 26, 2009




Portion of the Sixteenth (16th) Floor

345 Hudson Street

New York, New York




**********************************************************************




Parish of Trinity Church in the City of New York

Real Estate Department

75 Varick Street, 2nd Floor

New York, New York, 10013




 









 









Table of Contents




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1 GLOSSARY
	 	 	2	 
	ARTICLE 2 DEMISE, PREMISES, TERM, RENT
	 	 	6	 
	ARTICLE 3 ESCALATION
	 	 	7	 
	ARTICLE 4 ELECTRICITY
	 	 	10	 
	ARTICLE 5 USE AND OCCUPANCY
	 	 	12	 
	ARTICLE 6 ALTERATIONS
	 	 	13	 
	ARTICLE 7 REPAIRS; FLOOR LOAD
	 	 	19	 
	ARTICLE 8 WINDOW CLEANING
	 	 	20	 
	ARTICLE 9 REQUIREMENTS OF LAW
	 	 	20	 
	ARTICLE 10 SUBORDINATION
	 	 	23	 
	ARTICLE 11 RULES AND REGULATIONS
	 	 	26	 
	ARTICLE 12 INSURANCE, PROPERTY LOSS OR DAMAGE; REIMBURSEMENT
	 	 	26	 
	ARTICLE 13 DESTRUCTION BY FIRE OR OTHER CAUSE
	 	 	30	 
	ARTICLE 14 EMINENT DOMAIN
	 	 	32	 
	ARTICLE 15 ASSIGNMENT, SUBLETTING, MORTGAGE, ETC.
	 	 	33	 
	ARTICLE 16 ACCESS TO PREMISES
	 	 	41	 
	ARTICLE 17 CERTIFICATE OF OCCUPANCY
	 	 	43	 
	ARTICLE 18 DEFAULT
	 	 	43	 
	ARTICLE 19 REMEDIES AND DAMAGES
	 	 	45	 
	ARTICLE 20 FEES AND EXPENSES
	 	 	48	 
	ARTICLE 21 NO REPRESENTATIONS BY LANDLORD
	 	 	48	 
	ARTICLE 22 END OF TERM
	 	 	49	 
	ARTICLE 23 INTENTIONALLY OMITTED
	 	 	50	 
	ARTICLE 24 NO WAIVER
	 	 	50	 
	ARTICLE 25 WAIVER OF TRIAL BY JURY
	 	 	51	 
	ARTICLE 26 INABILITY TO PERFORM
	 	 	51	 
	ARTICLE 27 BILLS AND NOTICES
	 	 	51	 
	ARTICLE 28 SERVICES AND EQUIPMENT
	 	 	53	 
	ARTICLE 29 PARTNERSHIP TENANT
	 	 	58	 
	ARTICLE 30 VAULT SPACE
	 	 	58	 
	ARTICLE 31 SIGNS
	 	 	58	 
	ARTICLE 32 BROKER
	 	 	59	 
	ARTICLE 33 INDEMNITY
	 	 	59	 
	ARTICLE 34 ADJACENT EXCAVATION; SHORING
	 	 	60	 
	ARTICLE 35 SECURITY DEPOSIT
	 	 	60	 
	ARTICLE 36 RENT REGULATION
	 	 	63	 
	ARTICLE 37 COVENANT OF QUIET ENJOYMENT
	 	 	63	 
	ARTICLE 38 LANDLORD’S WORK
	 	 	63	 
	ARTICLE 39 MISCELLANEOUS
	 	 	64	 
	ARTICLE 40 OPTION TO RENEW
	 	 	69	 
	ARTICLE 41 EXPANSION OPTION
	 	 	71	 
	ARTICLE 42 ICIP PROGRAM
	 	 	73	 








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	SCHEDULE A

	 	—
	 	Floor Plan of Premises
	SCHEDULE B

	 	—
	 	Tenant Alteration Guidelines
	SCHEDULE C

	 	—
	 	Fixed Rent and Operating Expense Payment
	SCHEDULE D

	 	—
	 	Floor Plan of Expansion Space
	SCHEDULE E

	 	—
	 	Cleaning Specifications
	SCHEDULE F

	 	—
	 	Certificate of Occupancy
	SCHEDULE G

	 	—
	 	Rules and Regulations
	SCHEDULE H

	 	—
	 	Contractor’s Liability Insurance Requirements
	SCHEDULE I

	 	—
	 	Service Charges






 









 









AGREEMENT OF LEASE




     AGREEMENT OF LEASE, made as of the  day of August, 2009 (this “Lease”),
between THE RECTOR, CHURCH-WARDENS AND VESTRYMEN OF TRINITY CHURCH IN THE CITY OF NEW YORK, a
religious corporation, having its office at 75 Varick Street, 2nd Floor, New York, New
York 10013 (“Landlord”), and WATERFRONT MEDIA INC., a Delaware corporation, having an
address at 45 Main Street, Brooklyn, New York 11201 (“Tenant”).



REFERENCE PAGE




     In addition to other terms elsewhere defined in this Lease, the following terms whenever used
in this Lease shall have the meanings set forth in this Reference Page.



	 	 	 	 	 
	(1)

	 	Premises:
	 	A portion of the rentable area of the sixteenth
(16th) floor of the Building, as approximately
shown hatched on the floor plan annexed hereto as
Schedule A.
	 
	 	 	 	 
	(2)

	 	Commencement Date:
	 	November 1, 2013.
	 
	 	 	 	 
	(3)

	 	Rent Commencement Date:
	 	The Commencement Date.
	 
	 	 	 	 
	(4)

	 	Fixed Expiration Date:
	 	October 31, 2018, subject to the provisions of Article 41.
	 
	 	 	 	 
	(5)

	 	Term:
	 	Five Years, subject to the provisions of Article 41.
	 
	 	 	 	 
	(6)

	 	Fixed Rent:
	 	As set forth in Schedule C.
	 
	 	 	 	 
	(7)

	 	Tenant’s Share:
	 	 3.94%. For purposes of this Lease, Landlord and Tenant
agree, without representation, that the Premises contains
36,407 rentable square feet and the Building contains
923,975 rentable square feet.
	 
	 	 	 	 
	(8)

	 	Base Tax Factor:
	 	The Taxes payable for the calendar year 2013.
	 
	 	 	 	 
	(9)

	 	Permitted Use:
	 	General, executive and administrative offices and uses
incidentally and directly related thereto.
	 
	 	 	 	 
	(10)

	 	Broker(s):
	 	Cushman & Wakefield, Inc.
	 
	 	 	 	 
	(11)

	 	Tenant Improvement

Allowance:
	 	 $1,117,210
	 
	 	 	 	 
	(12)

	 	Renewal Term:
	 	One (1) term of five (5) years.
	 
	 	 	 	 
	(13)

	 	Security Deposit:
	 	 $784,000, as the same may be increased and reduced
pursuant to Article 35.
	 
	 	 	 	 
	(14)

	 	Expansion Space:
	 	The portion of the rentable area of the sixteenth floor,
as approximately shown hatched on the floor plan annexed
hereto as Schedule D.






 









 









W I T N E S S E T H:




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



ARTICLE 1



GLOSSARY




     The following terms shall have the meanings indicated below:



     “AAA” shall have the meaning set forth in Section 40.3.



     “ADA” shall have the meaning set forth in Section 9.1.



     “Additional Rent” shall have the meaning set forth in Section 2.2.



     “Administrative Code” shall mean the Administrative Code of the City of New York, as
amended.



     “Alterations” shall mean alterations, decorations, installations, repairs,
improvements, additions, replacements or other physical changes in or about the Premises made by
Tenant.



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



     “ASHRAE” shall mean the American Society of Heating, Refrigeration and
Air-Conditioning Engineers.



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



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



     “Baseball Arbitrator” shall have the meaning set forth in Section 40.3.



     “BID Charges” shall have the meaning set forth in Section 3.1(B).



     “Building” shall mean the buildings, equipment and other improvements and
appurtenances of every kind and description now located or hereafter erected, constructed or placed
upon the Land and any and all alterations, renewals, and replacements thereof, additions thereto
and substitutions therefor.


      “Building Insurance” shall have the meaning set forth in Section 12.2.



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     “Building Systems” shall mean the base building mechanical, electrical, sanitary,
heating, air conditioning, ventilating, elevator, plumbing, life-safety and other service systems
of the Building, but shall not include installations made by Tenant or fixtures or appliances.



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



     “Class E System” shall have the meaning set forth in Section 7.1.



     “CPA” shall have the meaning set forth in Section 15.4(B).



     “Decorative Alterations” shall have the meaning set forth in Section 6.1(A).



     “Deficiency” shall have the meaning set forth in Section 19.2(A)(2).



     “Directory” shall have the meaning set forth in Section 39.9.



     “Electricity Additional Rent” shall have the meaning set forth in Section
4.2(A).



     “Embargoed Person” shall have the meaning set forth in Section 39.6(A).



     “Escalation Rent” shall mean payments required to be made by Tenant pursuant to
Article 3.



     “Event of Default” shall have the meaning set forth in Section 18.1.



     “Fair Rental Value” shall mean the rental rate per annum determined at the applicable
times set forth in Article 40 or Article 41, for vacant space in buildings of
comparable quality and age of the Building and located in the immediate vicinity of the Building
for tenants of comparable credit quality and stature leasing space containing rentable square
footage comparable to the rentable square footage in the relevant transaction. Fair Rental Value
shall include all relevant factors in arriving at a so-called “net rental” to Landlord, whether
favorable to Landlord or Tenant.



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



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



     “Hazardous Materials” shall have the meaning set forth in Section 9.2.



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



     “HVAC System” shall mean the Building Systems providing HVAC.



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     “Indemnitees” shall mean Landlord, its trustees, partners, shareholders, officers,
directors, employees, agents and contractors and the Manager.



     “Initial Alterations” shall have the meaning set forth in Section 6.5(A).



     “Land” shall mean the land upon which the Building is situated and known by the
address of 345 Hudson Street, New York, New York.



     “Landlord” on the date as of which this Lease is made, shall mean The Rector,
Church-Wardens and Vestrymen of Trinity Church in the City of New York, but thereafter, “Landlord”
shall mean only the fee owner of the Real Property or, if there then exists a Superior Lease, the
tenant thereunder.



     “Landlord’s Equity” shall have the meaning set forth in Section 39.2.



     “Landlord’s Maximum Determination” shall have the meaning set forth in Section
40.2.



     “Landlord’s Statement” shall mean a Landlord’s Tax Statement.



     “Landlord’s Tax Statement” shall mean a statement containing a computation of
Escalation Rent due pursuant to the provisions of Section 3.2 furnished by Landlord to
Tenant.



     “Landlord’s Work” shall have the meaning set forth in Article 38.



     “Laws” shall mean all present and future laws, rules, ordinances, regulations,
statutes, requirements, codes and executive orders, extraordinary as well as ordinary, retroactive
and prospective, of all Government Authorities now existing or hereafter created, and of any
applicable fire rating bureau, or other body exercising similar functions, affecting the Real
Property, or any street, avenue or sidewalk comprising a part or in front thereof or any vault in
or under the same, or requiring removal of any encroachment, or affecting the maintenance, use or
occupation of the Real Property.



     “Lease” shall have the meaning set forth in the recital hereto.



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



     “List” shall have the meaning set forth in Section 39.6(A).



     “Manager” shall mean a contractor under Landlord’s contract for the management of the
Building, if any.



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



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



     “Notice(s)” shall have the meaning set forth in Section 27.1.



4









 





     “OFAC” shall have the meaning set forth in Section 39.6(A).



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



     “Overtime Periods” shall have the meaning set forth in Section 28.1(B).



     “Parties” shall have the meaning set forth in Section 39.2.



     “Partnership Tenant” shall have the meaning set forth in Section 29.1.



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



     “Persons Within Tenant’s Control” shall mean and include Tenant, all of Tenant’s
respective principals, officers, agents, contractors, servants, employees, licensees and invitees.



     “Prohibited Person” shall have the meaning set forth in Section 39.6(B).



     “Real Property” shall mean the Building and the Land.



     “Recapture Space” shall have the meaning set forth in Section 15.4(B).



     “Recapture Sublease” shall have the meaning set forth in Section 15.4(C).



     “Recapture Subtenant” shall have the meaning set forth in Section 15.4(C).



     “Renewal Notice” shall have the meaning set forth in Section 40.1.



     “Renewal Option” shall have the meaning set forth in Section 40.1.



     “Renewal Term” shall have the meaning set forth in the Reference Page.



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



     “Requirements” shall mean (i) all Laws, (ii) all requirements, obligations and
conditions of all instruments of record on the date of this Lease as to which Tenant has been given
notice, and (iii) all requirements, obligations and conditions imposed by the carrier of Landlord’s
or Tenant’s commercial property insurance policy for the Building.



     “Rules and Regulations” shall mean the rules and regulations annexed hereto as
Schedule G, and such other reasonable modifications and additions to same as Landlord and
Landlord’s agents may from time to time adopt, on notice to Tenant to be given in accordance with
the terms of this Lease. The parties agree that all rules and regulations that are designed for
the safety or security of occupants of the Building, property in the Building, or the Building
itself, shall be deemed to be reasonable.



     “Soft Costs” shall have the meaning set forth in Section 6.5(A).



5









 





     “Specialty Alterations” shall have the meaning set forth in Section 6.1(C).



     “Sublease Additional Rent” shall have the meaning set forth in Section 15.5.



     “Sublease or Assignment Statement” shall have the meaning set forth in
Section 15.4(B).



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



     “Tax Year” shall mean each period of twelve (12) months, commencing on the first day
of July of each year, that includes any part of the Term, or such other period of twelve (12)
months as may be duly adopted as the fiscal year for real estate tax purposes by the City of New
York.



     “Taxes” shall have the meaning set forth in Section 3.1(A).



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



     “Tenant’s Minimum Determination” shall have the meaning set forth in Section
40.2.



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



     “Tenant’s Tax Payment” shall have the meaning set forth in Section 3.2(A)(i).



     “Umbrella” shall have the meaning set forth in Section 12.4(A).



     “Unavoidable Delays” shall have the meaning set forth in Section 26.1.



ARTICLE 2



DEMISE, PREMISES, TERM, RENT




     Section 2.1. (A) Landlord hereby leases to Tenant and Tenant hereby hires from Landlord the
Premises for the Term to commence on the Commencement Date and to end on the Fixed Expiration Date,
unless earlier terminated or extended as provided herein.


          (B) Simultaneously with the execution and delivery of this Lease (i) Tenant and CT Corporation
(“CT”), the existing tenant of the Premises, are entering into a sublease of
the Premises (the “Sublease”) for a term expiring on October 31, 2013 and (ii)
Landlord, Tenant and CT are entering into a Consent to Sublease, Amendment of Lease and Recognition
Agreement (the “Consent”) relating to the rights and obligations of the parties with
respect to the 


6









 






Premises for the period ending on October 31, 2013. Except as otherwise expressly
provided in this Lease, the rights and obligations of Landlord and Tenant hereunder shall not
accrue prior to the Commencement Date.



     Section 2.2. Tenant shall pay to Landlord, in lawful money of the United States of America,
without notice or demand, by good and sufficient check drawn to the Landlord’s order on a bank or
trust company which is a member of the New York Clearinghouse Association or other financial
institution reasonably acceptable to Landlord with an office in the Borough of Manhattan, the City
of New York, State of New York (provided that, as of the date of this Lease, Landlord accepts
Square 1 Bank) or, at Tenant’s election, by wire transfer of immediately available federal funds,
at the office of Landlord or at such other place as Landlord may designate from time to time, the
following:


          (A) commencing upon the Rent Commencement Date, the Fixed Rent, at the annual fixed rental
rate set forth in the Reference Page, which shall be payable in equal monthly installments of Fixed
Rent in advance on the first day of each and every calendar month during the Term.


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



     Section 2.3. If the Rent Commencement Date is other than the first day of a calendar month, or
the Fixed Expiration Date is other than the last day of a calendar month, Fixed Rent for such month
shall be prorated on a per diem basis.



     Section 2.4. Tenant shall pay the Fixed Rent and Additional Rent when due without abatement,
deduction, counterclaim, setoff or defense for any reason whatsoever, except said abatement as may
be occasioned by the occurrence of any event permitting an abatement of Fixed Rent and Escalation
Rent as specifically set forth in this Lease.



ARTICLE 3



ESCALATION




     Section 3.1. For the purposes of this Article 3, the following terms shall have the
meanings set forth below:


          (A) “Taxes” shall mean the aggregate amount of real estate taxes and any general or
special assessments (exclusive of penalties and interest thereon) imposed upon the Real Property
(including, without limitation, (i) assessments made upon or with respect to any “air” and
“development” rights now or hereafter appurtenant to or affecting the Real Property,
(ii) any fee, tax or charge imposed by any Government Authority for any vaults, vault space or
other space within or outside the boundaries of the Real Property not required to be paid by one or
more particular tenants, and (iii) any assessments levied after the date of this Lease for public
benefits to the Real Property or the Building, including BID Charges (as hereinafter defined);
provided that if, because of any change in the taxation of real estate, any other tax or
assessment, 


7









 






however denominated (including, without limitation, any franchise, income, profit,
sales, use, occupancy, gross receipts or rental tax) is imposed upon Landlord or the owner of the
Real Property or the Building, or the occupancy, rents or income therefrom, in substitution for any
of the foregoing Taxes or for an increase in any of the foregoing Taxes, such other tax or
assessment shall be deemed part of Taxes computed as if Landlord’s sole asset were the Real
Property. With respect to any Tax Year, all expenses, including reasonable attorneys’ fees and
disbursements and experts’ and other witnesses’ fees, incurred in contesting the validity or amount
of any Taxes or in obtaining a refund of Taxes (but not to exceed such refund) shall be considered
as part of the Taxes for such Tax Year. Anything contained herein to the contrary notwithstanding,
Taxes shall not be deemed to include (a) any taxes on Landlord’s income, (b) franchise taxes,
(c) estate or inheritance taxes, or (d) any similar taxes imposed on Landlord, unless such taxes
are levied, assessed or imposed as a substitute for the whole or any part of, or as a substitute
for an increase in, the taxes, assessments, levies, fees, charges and impositions that now
constitute Taxes.


          (B) “BID Charges” shall mean business improvement district charges imposed on the
Building and/or the Land, and any reasonable expenses incurred by Landlord in contesting the same.



     Section 3.2. Tenant’s Tax Payment.


          (A) Commencing on January 1, 2014, Tenant shall pay as Escalation Rent for each Tax Year, an
amount (“Tenant’s Tax Payment”) equal to Tenant’s Share of the amount by which the Taxes
for such Tax Year are greater than the Base Tax Factor. Tenant’s Tax Payment shall be payable by
Tenant to Landlord in twelve (12) equal monthly installments (subject to the further provisions of
this Section 3.2), the first of which shall be due within thirty (30) days after receipt of
a Landlord’s Tax Statement, regardless of whether such Landlord’s Tax Statement is received prior
to, on or after the first day of such Tax Year and the remaining installments shall be due on the
first day of each month thereafter. If there is any increase in Taxes for any Tax Year, whether
during or after such Tax Year, or if there is any decrease in the Taxes for any Tax Year during
such Tax Year, Landlord may furnish a revised Landlord’s Tax Statement for any Tax Year affected,
and Tenant’s Tax Payment for such Tax Year shall be adjusted and, (a) within thirty (30) days after
Tenant’s receipt of such revised Landlord’s Tax Statement, Tenant shall (with respect to any
increase in Taxes for such Tax Year) pay the appropriate increase in Tenant’s Tax Payment to
Landlord, or (b) (with respect to any decrease in Taxes for such Tax Year) Landlord shall, at its
election, either credit such decrease in Tenant’s Tax Payment against the next installment of
Rental payable by Tenant or refund the amount of such decrease by check to the order of Tenant or,
if at the end of the Term, there shall not be any further installments of Rental remaining against
which Landlord can credit any decrease in Taxes due Tenant, Landlord shall deliver to Tenant
Landlord’s check in the amount of the refund due Tenant within thirty (30) days after Landlord’s
receipt of any refund. If, during the Term, Taxes are required to be paid (either to the
appropriate taxing authorities or as tax escrow payments to a Lessor or
Mortgagee), in full or in quarterly or other installments on any other date or dates than as
presently required, then Tenant’s Tax Payments shall be correspondingly accelerated or revised so
that Tenant’s Tax Payments are due at least thirty (30) days prior to the date payments are due to
the taxing authorities, the Lessor or the Mortgagee. The benefit of any discount for any early
payment or prepayment of Taxes shall accrue solely to the benefit of Landlord and Taxes shall 


8









 






be
computed without subtracting such discount. Taxes shall be calculated for the Base Tax Factor and
for each Tax Year thereafter without giving effect to any tax exemption, abatement or deferral
program then affecting the Building.


          (B) Only Landlord shall be eligible to institute tax reduction or other proceedings to reduce
Taxes. If, after a Landlord’s Tax Statement has been sent to Tenant, a refund of Taxes is actually
received by or on behalf of Landlord, then, promptly after receipt of such refund, Landlord shall
send Tenant a Landlord’s Tax Statement adjusting the Taxes for such Tax Year (taking into account
Landlord’s expenses therefor) and setting forth Tenant’s Share of such refund, and Tenant shall be
entitled to receive such amount by way of a credit against the next installment(s) of Rental until
fully applied or by a refund if at the end of the Term; provided, however, that Tenant’s Share of
such refund shall be limited to the amount of Tenant’s Tax Payment, which Tenant had theretofore
paid to Landlord attributable to increases in Taxes for the Tax Year to which the refund is
applicable.


          (C) Tenant’s Tax Payment and any credits with respect thereto as provided in this Section
3.2 shall be made as provided in this Section 3.2 regardless of the fact that Tenant
may be exempt, in whole or in part, from the payment of any taxes by reason of Tenant’s diplomatic
or other tax exempt status or for any other reason whatsoever.


          (D) Tenant shall pay to Landlord within thirty (30) days after demand as Additional Rent any
occupancy tax or rent tax now in effect or hereafter enacted, if payable by Landlord in the first
instance or hereafter required to be paid by Landlord.


          (E) Each Landlord’s Tax Statement furnished by Landlord with respect to Tenant’s Tax Payment
shall, at Tenant’s request, be accompanied by a copy of the real estate tax bill or bills for the
Tax Year referred to therein, but Landlord shall have no obligation to deliver more than one such
copy of the real estate tax bill or bills in respect of any Tax Year (unless Taxes have changed),
and Landlord’s failure to deliver such copy shall not affect Tenant’s obligations as to amount or
due date(s) thereof.


          (F) If the Base Tax Factor subsequently shall be adjusted, corrected or reduced whether as the
result of protest, by means of agreement or as the result of legal proceedings, the Base Tax Factor
for the purpose of computing any Additional Rent payable pursuant to this Article shall be the Base
Tax Factor as so adjusted, corrected or reduced. Until the Base Tax Factor is so adjusted,
corrected or reduced, if ever, Tenant shall pay Additional Rent hereunder based upon the
unadjusted, uncorrected or unreduced Base Tax Factor and upon such adjustment, correction or
reduction occurring, any Additional Rent payable by Tenant prior to the date of such occurrence
shall be recomputed and Tenant shall pay to Landlord any Escalation Rent found due by such
re-computation within thirty (30) days after being billed therefor (which bill shall set forth in
reasonable detail the pertinent data causing and comprising such re-computation).


          (G) If the Commencement Date or the Fixed Expiration Date occurs on a date other than July 1
or June 30, respectively, any Tenant’s Tax Payment under this Article 3 for the Tax Year in
which such Commencement Date or Fixed Expiration Date occurs shall be apportioned in that
percentage which the number of days in the period from the Commencement 


9









 






Date to June 30 or from
July 1 to the Fixed Expiration Date, as the case may be, both inclusive, bears to the total number
of days in such Tax Year. In the event of a termination of this Lease, any Escalation Rent under
this Article 3 shall be paid or adjusted within thirty (30) days after submission of a
Landlord’s Statement. In no event shall Fixed Rent ever be reduced by operation of this
Article 3, and the rights and obligations of Landlord and Tenant under the provisions of
this Article 3 with respect to any Escalation Rent shall survive the Fixed Expiration Date.



     Section 3.3. Landlord’s failure to render any Landlord’s Statement with respect to any Tax
Year shall not prejudice Landlord’s right thereafter to render a Landlord’s Statement with respect
thereto or with respect to any subsequent Tax Year, nor shall the rendering of a Landlord’s
Statement prejudice Landlord’s right thereafter to render a corrected Landlord’s Statement for that
Tax Year. Notwithstanding the foregoing, if Landlord shall have failed to render a Landlord’s
Statement with respect to any Tax Year within two (2) years after the end of such Tax Year, then
Landlord shall have waived its right to send any such Landlord’s Statement or otherwise further
bill Tenant for that particular Tax Year.



     Section 3.4. Each Landlord’s Statement shall be conclusive and binding upon Tenant unless
within ninety (90) days after receipt of such statement Tenant shall notify Landlord that it
disputes the correctness of such Landlord’s Statement, specifying the particular respects in which
such Landlord’s Statement is claimed to be incorrect absent manifest error. Pending the resolution
of such dispute, and as a condition precedent to Tenant’s right to dispute the correctness of such
statement, Tenant shall make its payments in accordance with such Landlord’s Statement without
prejudice to Tenant’s position. In the event of the resolution of such dispute so that there shall
have been an overpayment of any of Tenant’s Tax Payment, Landlord shall permit Tenant to credit the
amount of such overpayment against the next subsequent rental payments under this Lease. After the
termination of this Lease and the payment to Landlord of the balance, if any, of all Fixed Rent and
Additional Rent due hereunder, Landlord shall pay to Tenant the amount of any credit not previously
applied by Tenant. The obligations contained in this Section 3.4 shall survive the Fixed
Expiration Date.



     Section 3.5. In order to adjust, during the Term of this Lease, for increases in the expenses
of Landlord in operating the Building, Tenant shall pay to Landlord, commencing on the first
anniversary of the Commencement Date and on each anniversary thereafter, the amount indicated in
Schedule C as the Operating Expense Payment, such amount to be paid (in addition to Fixed
Rent) in twelve equal monthly installments.



ARTICLE 4



ELECTRICITY




     Section 4.1. Tenant shall at all times comply with the rules, regulations, terms and
conditions applicable to service, equipment, wiring and requirements of the public utility
supplying electricity to the Building. Landlord shall furnish an electrical demand load in the
Premises of six (6) watts per usable square foot, and in no event shall the electrical demand load
in the Premises exceed such capacity. Tenant shall not, without Landlord’s prior written consent
in each instance, connect any fixtures, machinery, appliances or equipment to the Building



10









 




electric
distribution system or make any alteration or addition to Tenant’s machinery, appliances or
equipment, or the electric system of the Premises, if the effect thereof would be to increase the
electrical load in the Premises over the load specified in this Section 4.1.
Notwithstanding the foregoing, Landlord shall not be liable in any way to Tenant for any
interruption or failure or defect in the supply or character of electric service furnished to the
Premises or for any loss, damage or expense Tenant may sustain if either the quantity or character
of electric service is changed or is no longer suitable for Tenant’s requirements, whether by
reason of any requirement, act or omission of the public utility serving the Building or for any
other reason.



     Section 4.2. (A) As of the Commencement Date, electricity shall be furnished by Landlord to
an electrical panel within the Premises. Tenant shall pay to Landlord, as Additional Rent for such
electrical service (including the electricity used to service any air-conditioning unit(s)
providing air-conditioning exclusively to the Premises, whether or not part of the HVAC Ssytem),
one hundred eight percent (108%), in each case of the amounts (the “Electricity Additional
Rent”), as determined by an existing submeter (which submeter shall be maintained, repaired and
replaced by Tenant, at Tenant’s cost), at charges, terms and rates, applied to the monthly readings
on such submeter, as set from time to time during the Term by the public utility serving the
Building.


          (B) Bills for the Electricity Additional Rent shall be rendered to Tenant at such time as
Landlord may elect (but not more often than monthly), and Tenant shall pay the amount shown thereon
to Landlord within thirty (30) days after the rendering of such bill.


          (C) Wherever reference is made in this Article to rate(s) or charge(s) of the public utility
supplying electricity to the Building or to increases in such rates or charges, the words rates or
charges shall be deemed to include without limitation, any and all (including any new or
additional): (i) kilowatt hours or energy charge; (ii) kilowatts of demand charge; (iii) fuel
adjustment charge; (iv) transfer adjustment charge; (v) utility tax; (vi) sales tax, and (vii) any
and all other charges and taxes required to be paid by Landlord to the utility company for the
applicable period of Tenant’s use.



     Section 4.3. Tenant, at Landlord’s option, shall purchase from Landlord all lighting tubes,
lamps, bulbs and ballasts used in the Premises, and Tenant shall pay to Landlord Landlord’s
reasonable charges for providing and installing the same, as Additional Rent.



     Section 4.4. Landlord shall have the right, in its sole discretion, to select any entity or
entities which it desires to have as the electrical service provider to the Building (including the
Premises), and Tenant shall not have the right to select the same or participate in the selection
of the same, except and to the extent that any Laws mandate that Tenant have any such right(s).
Any such new electric service provider shall charge electric rates that are competitive with the
then existing electric service provider to the Building and shall have sufficient electrical
capacity available to satisfy Landlord’s requirements to Tenant under Section 4.1 of this
Lease.



     Section 4.5. Landlord reserves the right to discontinue furnishing electric energy to the
Premises at any time upon not less than sixty (60) days notice to Tenant provided that Landlord
shall not exercise such right unless it discontinues furnishing electricity to a substantial
portion of the Building. If Landlord exercises such right of termination, this Lease shall
continue in full



11









 




force and effect and shall be unaffected thereby, except only that, from and after
the effective date of such discontinuance, Landlord shall not be obligated to furnish electric
energy to Tenant. If Landlord voluntarily discontinues furnishing electric energy to Tenant,
Landlord shall, prior to the effective date of such discontinuance, at Landlord’s expense, make
such changes in panel boards, feeders, risers, wiring and other conductors and equipment to the
extent required to permit Tenant to obtain electric energy directly from the electric service
provider for the Building. If, on the other hand, Landlord is required by any Laws to discontinue
furnishing electric energy to Tenant, Tenant shall reimburse Landlord promptly upon demand for
one-half of the cost incurred by Landlord in making such changes in the Building panel boards,
feeders, risers, wiring and other conductors and equipment in order to permit Tenant to obtain
electric energy directly from the electric service provider for the Building.



     Section 4.6. Tenant shall conduct routine maintenance on lighting fixtures, supplementary air
conditioning and appliances in order to maintain maximum energy efficiency. To that end, Tenant
shall ensure that energy-efficient settings are enabled on all computers and other equipment to the
maximum extent feasible and shall turn off equipment at the power point during periods when it is
expected that same will not be in use, such as during holidays, weekends and vacations. Tenant
shall arrange and require its employees working in the Premises to participate in annual training
regarding energy savings. Tenant shall cooperate with Landlord in conducting energy savings audits
and shall participate in Landlord-sponsored training programs regarding energy savings.



ARTICLE 5



USE AND OCCUPANCY




     Section 5.1. Tenant shall use and occupy the Premises for the Permitted Use and for no other
purpose.



     Section 5.2. Tenant shall not use the Premises or any part thereof, or permit the Premises or
any part thereof to be used, (1) for the business of photographic, multilith or multigraph
reproductions or offset printing (other than those which are ancillary to an otherwise Permitted
Use), (2) for an off-the-street retail commercial banking, thrift institution, loan company, trust
company, depository or safe deposit business accepting deposits from the general
public, (3) for the off-the-street retail sale of travelers checks, money orders, drafts,
foreign exchange or letters of credit or for the receipt of money for transmission, (4) by the
United States government, the City or State of New York, any foreign government, the United Nations
or any agency or department of any of the foregoing having or asserting sovereign immunity, (5) for
the preparation, dispensing or consumption of food or beverages in any manner whatsoever (except
for the preparation, dispensing and consumption of food by Tenant’s employees who work in the
Premises), (6) for the sale of food to any Persons, except for Tenant’s employees, (7) as an
employment agency, day-care facility, labor union, school, or vocational training center (except
for the training of employees of Tenant intended to be employed at the Premises), (8) as a barber
shop, beauty salon or manicure shop, (9) intentionally omitted, (10) as offices of any public
utility company, (11) for data processing activities (other than those which are ancillary to an
otherwise Permitted Use), (12) for health care activities open to the general public, (13) for
clerical support services or offices of public stenographers or typists (other than those which are



12









 







ancillary to an otherwise Permitted Use), (14) as reservation centers for airlines or travel
agencies, (15) for retail or manufacturing use, (16) as studios for radio, television or other
media, (17) for offices of a real estate brokerage firm, or (18) for any obscene or pornographic
purpose or any sort of commercial sex establishment or for exhibition to the public of any obscene
or pornographic materials. For purposes of the preceding clause (18), “pornographic” shall mean
that the material or purpose has prurient appeal or relates, directly or indirectly, to lewd or
prurient sexual activity and “obscene” shall have the meaning ascribed thereto in New York Penal
Law Section 235.00. Furthermore, the Premises shall not be used for any purpose that would, in
Landlord’s reasonable judgment, tend to lower the then character of the Building, create
unreasonable or excessive elevator or floor loads, violate the certificate of occupancy of the
Building, impair or interfere with any of the Building operations or the proper and economic
heating, air-conditioning, cleaning or any other services of the Building, interfere with the use
of the other areas of the Building by any other tenants, or impair the appearance of the Building.



ARTICLE 6



ALTERATIONS




     Section 6.1.


          (A) Tenant, upon at least ten (10) days written notice to Landlord, but without obtaining
Landlord’s consent, may make Alterations which are purely decorative in nature such as painting,
carpeting, wall covering, and the like (such Alterations, hereinafter “Decorative
Alterations”). Tenant shall not make or permit to be made any other Alterations without
Landlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or
delayed, provided that (1) the outside appearance of the Building shall not be affected; (2) the
strength of the Building shall not be affected; (3) the structural parts of the Building shall not
be affected; (4) except as otherwise expressly provided in this Lease, no part of the Building
outside of the Premises shall be affected; and (5) the proper functioning of the Building Systems
shall not be affected and the use of such systems by Tenant shall not be increased beyond Tenant’s
allocable portion of reserve capacity thereof, if any. Reference is made to Schedule B
hereto, which contains the Tenant Alteration Guidelines applicable to the Building, which is
incorporated by reference in this Lease. To the extent of a conflict between the express
provisions of this Lease and the provisions of the Tenant Alteration Guidelines, the provisions of
this Lease shall control. Landlord reserves the right to make reasonable changes and additions to
the Tenant Alteration Guidelines, provided however, that such changes or additions shall not
conflict with the express provisions of this Lease.


          (B) (1) Prior to making any Alterations, Tenant shall, at Tenant’s expense, (i) other than
with respect to Decorative Alterations, submit to Landlord three (3) sets of final, stamped and
detailed plans and specifications (including layout, architectural, electrical, mechanical and
structural drawings) that comply with all Laws for each proposed Alteration, and Tenant shall not
commence any such Alteration without first obtaining Landlord’s approval of such plans and
specifications, which approval shall not be unreasonably withheld, conditioned or delayed, (ii) at
Tenant’s expense, obtain all permits, approvals and certificates required by any Government
Authorities, and (iii) furnish to Landlord certificates evidencing worker’s compensation insurance
(covering all persons to be employed by Tenant, and Tenant’s


13









 






contractors and subcontractors, in
connection with such Alteration) and commercial general liability insurance (including premises
operation, bodily injury, personal injury, death, independent contractors, products and completed
operations, broad form contractual liability and broad form property damage coverages) in such
form, with such companies, for such periods and in such amounts as Landlord may reasonably approve,
and as otherwise specified in Schedule I annexed to this Lease, naming Landlord and its
agents, any Lessor and any Mortgagee, as additional insureds. Within thirty (30) days after
completion of such Alteration or as soon thereafter as is reasonably practicable, Tenant, at
Tenant’s expense, shall obtain certificates of final approval of such Alterations required by any
Government Authority and shall furnish Landlord with copies thereof, together with the “as-built”
plans and specifications (or final plans with field notations) for such Alterations, in AutoCad,
Release 14 format, either on a 31/2” disk or CD Rom, or such other format as shall from time to time
be reasonably designated by Landlord. All Alterations shall be made and performed substantially in
accordance with the plans and specifications therefor as approved by Landlord, all Laws and the
Rules and Regulations. All materials and equipment to be incorporated in the Premises as a result
of any Alterations shall be new and no such materials or affixed equipment shall be subject to any
lien, encumbrance, chattel mortgage, title retention or security agreement. In addition, except
for Decorative Alterations, any Alteration for which the cost of labor and materials (as estimated
by Landlord’s architect, engineer or contractor) is in excess of Seventy Five Thousand ($75,000.00)
Dollars and for which plans are required to be filed with the New York City Department of
Buildings, shall be performed only under the supervision of a licensed architect reasonably
satisfactory to Landlord.



               (2) Landlord shall respond to the proposed plans and specifications referred to in Section
6.1(B)(1)(i) within fifteen (15) Business Days after submission (and within ten (10) Business
Days after any resubmission), but Landlord shall have no liability to Tenant by reason of
Landlord’s failure to respond within such time period. If Landlord shall fail to respond within
such time period, however, Landlord’s approval of such plans and specifications shall be deemed
granted, provided that Tenant shall have sent Landlord a second request for approval containing the
following language in eighteen-point print: “THIS IS A SECOND REQUEST FOR APPROVAL OF THE PROPOSED
PLANS AND SPECIFICATIONS. IF LANDLORD DOES NOT RESPOND TO THIS REQUEST WITHIN FIVE (5) BUSINESS
DAYS,
LANDLORD’S APPROVAL SHALL BE DEEMED GRANTED PURSUANT TO THE PROVISIONS OF THE LEASE” and
Landlord shall have failed to respond within such time period. Landlord reserves the right to
disapprove any plans and specifications in part, to reserve approval of items shown thereon pending
its review and approval of other plans and specifications, and to condition its approval upon
Tenant making revisions to the plans and specifications or supplying additional information.
Tenant agrees that any review or approval by Landlord of any plans and/or specifications with
respect to any Alteration is solely for Landlord’s benefit, and without any representation or
warranty whatsoever to Tenant or any other Person with respect to the adequacy, correctness or
sufficiency thereof or with respect to Laws or otherwise.


          (C) Except as otherwise provided in the Rules and Regulations and Tenant Alteration
Guidelines, Tenant shall be permitted to perform Alterations during Operating Hours, provided that
such work does not interfere with or interrupt the operation and maintenance of the Building or
interfere with or interrupt the use and occupancy of the Building by other tenants in 


14









 






the Building.
Otherwise, Alterations shall be performed at Tenant’s expense and at such times and in such manner
as Landlord may from time to time reasonably designate. All Alterations shall become a part of the
Building and shall be Landlord’s property from and after the installation thereof and may not be
removed or changed without Landlord’s consent, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, however, Landlord, at the time it approves Tenant’s plans and
specifications (whether submitted prior to or during the Term of this Lease), may require Tenant to
remove any Alterations which are in excess of standard office installations such as kitchens,
cafeterias, vaults, sloping, terraced or raised floors, internal staircases, and other slab
penetrations, fire suppression or uninterrupted power supply systems, satellites, antennas,
dumbwaiters, and other improvements of a similar nature if, with respect to such other
improvements, their removal would cost more than a typical office installation (the “Specialty
Alterations”), and in such case, Tenant shall remove the Specialty Alterations in accordance
with such request and repair and restore in a good and workmanlike manner to Building standard
condition (reasonable wear and tear excepted) any damage to the Premises or the Building caused by
such removal. Without limiting the foregoing provisions, upon the Expiration Date or the earlier
termination of the Term, Tenant shall remove all wiring and cabling from the raceways and conduits
located in the Premises. All Tenant’s Property shall remain the property of Tenant and, on or
before the Expiration Date or earlier end of the Term, may be removed from the Premises by Tenant
at Tenant’s option, provided, however, that Tenant shall repair and restore in a good and
workmanlike manner to Building standard condition (reasonable wear and tear excepted) any damage to
the Premises or the Building caused by such removal. The provisions of this Section 6.1(C)
shall survive the expiration or earlier termination of this Lease.


          (D) (1) All Alterations shall be performed, at Tenant’s sole cost and expense (but subject to
the Tenant Improvement Allowance), by contractors and subcontractors selected by Tenant and
approved by Landlord (which approval shall not be unreasonably withheld) and, if Tenant chooses to
perform such Alterations under the supervision of a construction or project manager, such person or
entity shall be approved by Landlord (which approval shall not be unreasonably withheld). Prior to
making any subsequent Alteration, at Tenant’s request, Landlord shall furnish Tenant with a list of
contractors who may perform Alterations to the Premises on behalf of Tenant. If Tenant shall enter
into a contract with any contractor set forth
on the list, within six (6) months after Landlord shall furnish Tenant with such list, Tenant
shall not be required to obtain Landlord’s consent to such contractor unless, prior to entering
into a contract with such contractor or the commencement of work by the contractor, Landlord
notifies Tenant that such contractor has been removed from the list.



               (2) Notwithstanding the foregoing, with respect to any Alteration affecting the Class E System
of the Building, (i) Tenant shall employ Landlord’s or the Manager’s designated contractor, and
(ii) the Alteration shall, at Tenant’s expense, be designed by either Landlord’s or the Manager’s
engineer. In addition, Tenant shall employ Landlord’s or the Manager’s designated expediter with
respect to any filings with, or other submissions to, applicable Government Authorities in
connection with any of Tenant’s Alterations. The charges of all such persons or entities shall be
commercially competitive for like-qualified service providers.



15









 




          (E) (1) Any mechanic’s lien filed against the Premises or the Real Property for work claimed
to have been done for, or materials claimed to have been furnished to, Tenant shall be cancelled or
discharged by Tenant, by payment, or filing of the bond, or as otherwise allowed by Laws, within
twenty (20) days after notice to Tenant that such lien has been filed, and Tenant shall indemnify
and hold Landlord harmless from and against any and all costs, expenses, claims, losses or damages
resulting therefrom by reason thereof.



               (2) If Tenant shall fail to discharge such mechanic’s lien within the aforesaid period, then,
in addition to any other right or remedy of Landlord, Landlord may after ten (10) days’ notice, but
shall not be obligated to, discharge the same either by paying the amount claimed to be due or by
procuring the discharge of such lien by deposit in court or bonding, and in any such event,
Landlord shall be entitled, if Landlord so elects, to compel the prosecution of an action for the
foreclosure of such mechanic’s lien by the lienor and to pay the amount of the judgment, if any, in
favor of the lienor, with interest, costs and allowances.



               (3) Any amount paid by Landlord for any of the aforesaid charges and for all reasonable
expenses of Landlord (including, but not limited to, reasonable attorneys’ fees and disbursements)
incurred in defending any such action, discharging said lien or in procuring the discharge of said
lien, with interest on all such amounts at the Applicable Rate, shall be repaid by Tenant within
ten (10) days after written demand therefor, and all amounts so repayable, together with such
interest, shall be considered Additional Rent.


          (F) (1) All Alterations made by Tenant shall meet all applicable energy savings and/or energy
efficient building code requirements to the extent reasonably practicable in accordance with
customary construction practice. If there is a conflict between the building code requirements and
those set forth in this Lease, the requirements calling for higher energy savings and efficiency
shall apply.



               (2) Intentionally omitted.



               (3) Tenant shall ensure that any lighting installed by Tenant in the Premises complies with
ASHRAE Standard 90.1 2004 by either the space by space or building area method, including the
following:



                         (i) Tenant shall use primarily compact fluorescents or light emitting diodes for accent
lighting and down lighting where possible. Alternative lighting with energy efficiencies equal to
or greater than compact fluorescents may also be used.



                         (ii) High efficiency electronic ballasts shall be considered for fluorescent tubes.
Fluorescents tube fixtures and down lighting fixtures shall also have interior reflective surfaces
where possible.



               (4) Tenant shall install timers, dimmers or programmable lighting controls on new lights
installed in the Premises, as follows:



                         (i) All lighting installed by Tenant shall be controlled by occupancy or motion sensors
arranged to control open plan office areas of 1,000 square feet or less and within all individual
offices, conference rooms and general use rooms.



16









 





                         (ii) In connection with lighting installed by or on behalf of Tenant, Tenant shall provide
capacity to adjust light levels in all areas where natural light is available. In addition to
occupancy or motion sensors, the zone extending from all glazed perimeter walls shall be
additionally controlled by light level sensors coordinated with the occupancy or motion sensors and
connected to dimmers adjusted to maintain appropriate office lighting levels at desk surface
levels.



               (5) To the extent feasible, Tenant shall locate refrigeration and other heat-generating
equipment where such equipment can be adequately ventilated, and also shall locate refrigerators in
an area of the Premises that is not within direct sunlight or near another heat source.



     Section 6.2. Tenant shall reimburse Landlord, within ten (10) Business Days after demand
therefor, for any actual, out-of-pocket expense reasonably incurred by Landlord for reviewing the
plans and specifications for any Alterations (including, without limitation, the Initial
Alterations).



     Section 6.3. Landlord, at Tenant’s expense, and upon the request of Tenant, shall join in any
applications for any permits, approvals or certificates required to be obtained by Tenant in
connection with any permitted Alteration (provided that the provisions of the applicable Laws shall
require that Landlord join in such application) and shall otherwise cooperate with Tenant in
connection therewith, provided that Landlord shall not be obligated to incur any cost or expense or
liability in connection therewith.



     Section 6.4. Tenant shall furnish to Landlord copies of records of all Alterations and of the
cost thereof within fifteen (15) days after the completion of such Alterations.



     Section 6.5.


          (A) Landlord shall pay to Tenant the Tenant Improvement Allowance in connection with the
Alterations to be made by Tenant for Tenant’s initial occupancy of the Premises (the “Initial
Alterations”) under the Sublease up to a maximum amount not to exceed the amount set forth in
the Reference Page for those costs and expenses directly incurred by
Tenant in connection with the actual costs of construction of the Initial Alterations, as
shown on the approved plans and specifications referred to in Section 6.1 for such Initial
Alterations, including for communications wiring and installations. For purposes of the preceding
sentence, actual costs of construction shall include both so-called “hard” construction costs and
so called “soft” costs for Tenant’s architectural, engineering and filing fees (collectively,
“Soft Costs”), provided that Landlord shall not be obligated to fund more than fifteen
(15%) percent of the Tenant Improvement Allowance for Soft Costs. The Tenant Improvement Allowance
may not be used for telephone systems, computer systems, furniture or decorations (other than
carpeting, wall coverings and window blinds). Tenant shall submit to Landlord a line item budget
(for Landlord’s review and approval) setting forth estimated construction costs in detail prior to
commencement of the Initial Alterations.


          (B) (i) Provided there has not occurred an Event of Default under this Lease, Landlord shall
reimburse Tenant for the actual costs of construction of the Initial


17









 







Alterations (up to the amount
of the Tenant Improvement Allowance), from time to time (but not more frequently than monthly and
in not more than three installments), provided that Landlord shall have received from Tenant: (a)
proper receipts marked “paid” and original unconditional lien waivers for the applicable portion of
the Initial Alterations from all contractors, subcontractors and materialmen involved in the
performance of the Initial Alterations and the supply of materials used in connection with the
Initial Alterations, evidencing that Tenant has spent the amount claimed on authorized hard cost
improvements to the Premises (and/or on Soft Costs incurred in connection with such improvements,
provided that Soft Costs may not account for more than fifteen (15%) percent of the Tenant
Improvement Allowance); (b) the percentage of the Initial Alterations completed as of the date of
the certificate; (c) an original executed certificate from Tenant’s independent licensed architect
stating that, (x) in his or her opinion, such portion of the Initial Alterations have been
completed and all work in connection therewith has been performed in a good and workmanlike manner
and substantially in accordance with Tenant’s plans and specifications and (y) to his or her
knowledge, all contractors, subcontractors and materialmen have been paid for such portion of the
Initial Alterations and all materials furnished in connection therewith, and (d) a written signed
statement or request from an authorized officer of Tenant outlining in detail the amount of the
Tenant Improvement Allowance being requested, along with a sworn statement by Tenant that the
amount claimed is for reimbursement to the listed parties.



                         (ii) Subject to the terms and conditions set forth in this Section 6.5, within thirty
(30) days after the last to occur of (A) Tenant’s request for the final installment of the Tenant
Improvement Allowance, (B) substantial completion of the Initial Alterations in accordance with the
terms hereof, (C) delivery to Landlord of general releases and waivers of lien from all
contractors, subcontractors and materialmen involved in the performance of the Initial Alterations
and the supply of materials used in connection with the Initial Alterations, (D) a certificate from
Tenant’s independent licensed architect certifying that (x) in his or her opinion the Initial
Alterations has been performed in a good and workmanlike manner and completed substantially in
accordance with Tenant’s plans and specifications for the Initial Alterations, and (y) to his or
her knowledge all contractors, subcontractors and materialmen have been paid for the Initial
Alterations, and materials furnished through such date, and (E) satisfaction of all of the
conditions set forth above in this Section 6.5, Landlord shall fund the balance of the
Tenant
Improvement Allowance which had been retained, which shall be 10% of the amount of each
requisition.


          (C) In no event shall the aggregate amount paid by Landlord to Tenant ever exceed the amount
of the Tenant Improvement Allowance. If the costs and expenses for the Initial Alterations are
less than the amount of the Tenant Improvement Allowance, or if Tenant has not submitted a request
for payment of the Tenant Improvement Allowance within 24 months following the commencement date of
the Sublease (with time being of the essence), Tenant shall not be entitled to any payment or
credit for such excess or unused amounts.



     Section 6.6. Tenant shall not, at any time prior to or during the Term, directly or indirectly
employ, or permit the employment of, any contractor, mechanic or laborer in the Premises, whether
in connection with any Alteration or otherwise, if such employment would interfere or cause any
conflict with other contractors, mechanics or laborers engaged in the construction, maintenance or
operation of the Building by Landlord, Tenant or others. In the



18









 






event of any such interference or
conflict, Tenant, upon demand of Landlord, shall cause all contractors, mechanics or laborers
causing such interference or conflict to leave the Building immediately.




ARTICLE 7



REPAIRS; FLOOR LOAD




     Section 7.1. Tenant, at Tenant’s sole cost and expense, during the Term shall take good care
of the Premises and the fixtures, equipment and appurtenances therein (including any
air-conditioning units exclusively serving the existing server room of the Premises) and make all
non-structural repairs thereto as and when needed to preserve them in good working order and
condition, except for (a) reasonable wear and tear, (b) obsolescence and (c) damage for which
Tenant is not responsible pursuant to the provisions of Article 13. Except as otherwise
provided in this Section 7.1, Tenant shall not be obligated to repair any Building Systems,
except that Tenant shall maintain the fire and life safety system components (“Class E
System”) within and exclusively servicing the Premises by entering into a maintenance contract
with the Building’s Class E System contractor. The design and decoration of the elevator areas of
each floor of the Premises and the public corridors of any floor of the Premises occupied by more
than one (1) occupant shall be under the sole control of Landlord subject to the terms of this
Lease. Notwithstanding any provision contained in this Lease to the contrary, all damage or injury
to the Premises, and all damage or injury to any other part of the Building, or to its fixtures,
equipment and appurtenances (including the Building Systems), whether requiring structural or
non-structural repairs, caused by the moving of Tenant’s Property or caused by or resulting from
any act or omission of, or Alterations made by, Tenant or Persons Within Tenant’s Control, shall be
repaired by Tenant, at Tenant’s sole cost and expense, to the reasonable satisfaction of Landlord
(if the required repairs are non-structural in nature and do not affect any Building Systems), or
by Landlord at Tenant’s sole cost and expense (if the required repairs are structural in nature or
affect any Building Systems). All of the aforesaid repairs shall be performed in a manner and with
new materials and design of class and quality consistent with comparable office buildings in
Manhattan and shall be made in accordance with the provisions of Article 6. If Tenant
shall fail, after ten (10) Business Days notice (or such shorter period as may be required because
of an emergency), to proceed with due diligence to make repairs required to be made by Tenant, the
same may be made by Landlord, at the expense of Tenant, and the expenses thereof incurred by
Landlord, with interest thereon at the Applicable Rate, shall be paid to Landlord, as Additional
Rent, within ten (10) days after rendition of a bill or statement therefor. Tenant shall give
Landlord prompt notice of any defective condition in any Building Systems located in, servicing or
passing through the Premises.



     Section 7.2. Tenant shall not place a load upon any floor of the Premises which exceeds the
per square foot “live load” that such floor was designed to carry. Tenant shall not locate or move
any safe, heavy machinery, heavy equipment, business machines, freight, bulky matter or fixtures
into or out of the Building without Landlord’s prior consent, which consent shall not be
unreasonably withheld, and Tenant shall make payment to Landlord of Landlord’s costs in connection
therewith (if such move is not part of an Alteration). If such safe, machinery, equipment,
freight, bulky matter or fixture requires special handling (as determined by Landlord), Tenant
shall employ only persons holding a Master Rigger’s license to do said work.



19









 




All work in
connection therewith shall comply with the Requirements, and shall be done during such hours as
Landlord may reasonably designate. Business machines and mechanical equipment shall be placed and
maintained by Tenant, at Tenant’s expense, in settings sufficient, in Landlord’s reasonable
judgment, to absorb and prevent vibration, noise and annoyance.



     Section 7.3. As of the commencement date of the Sublease, Landlord shall ensure that all
Building Systems (including the HVAC System and the Class E System) serving the Premises shall be
in good working order. Landlord shall operate, maintain and make all necessary repairs (both
structural and non-structural) to the Building Systems (including any air-conditioning unit(s)
providing air-conditioning exclusively to the Premises, other than the units serving the existing
server room and other than any supplemental units hereafter installed by Tenant) and the common
areas and other public portions of the Building, both exterior and interior, in conformance with
standards applicable to non-institutional, first class office buildings in the vicinity of the
Building, except for those repairs for which Tenant is responsible pursuant to any other provision
of this Lease. Landlord shall use reasonable efforts to minimize interference with Tenant’s use
and occupancy of the Premises in making any repairs, alterations, additions or improvements;
provided, however, that Landlord shall have no obligation to employ contractors or labor at
so-called overtime or other premium pay rates or to incur any other overtime costs in connection
with such repairs, alterations, additions or improvements. Notwithstanding the foregoing, if
Tenant shall so request, Landlord shall employ contractors or labor at so-called overtime or other
premium pay rates or incur other overtime costs in making such repairs, alterations, additions or
improvements, provided Tenant shall pay to Landlord, as Additional Rent, within 30 days after
demand therefor, an amount equal to the excess costs incurred by Landlord by reason of compliance
with Tenant’s request. Except as expressly provided in this Lease, there shall be no allowance to
Tenant for a diminution of rental value and no liability on the part of Landlord by reason of
inconvenience, annoyance or injury to business arising from Landlord, Tenant or others making, or
failing to make, any repairs, alterations, additions or improvements in or to any portion of the
Building or the Premises, or its fixtures, appurtenances or equipment.



ARTICLE 8



WINDOW CLEANING




     Section 8.1. Tenant shall not clean, nor require, permit, suffer or allow any window in the
Premises to be cleaned, from the outside in violation of Section 202 of the Labor Law, or any other
applicable law, or of the rules of the Board of Standards and Appeals, or of any other board or
body having or asserting jurisdiction.



ARTICLE 9



REQUIREMENTS OF LAW




     Section 9.1. Tenant shall not do, and shall not permit Persons Within Tenant’s Control to do,
any act or thing in or upon the Premises or the Building which will invalidate or be in conflict
with the certificate of occupancy for the Premises or the Building or violate any Requirements.
Tenant shall, at Tenant’s sole cost and expense, take all action, including making



20









 




any required
Alterations necessary to comply with all Requirements (including, but not limited to, applicable
terms of Local Laws No. 5 of 1973, No. 16 of 1984, No. 76 of 1985, No. 58 of 1987 and the
Americans With Disabilities Act of 1990 (the “ADA”), each as modified and supplemented from
time to time) which shall impose any violation, order or duty upon Landlord or Tenant arising
during the Term from, or in connection with, the Premises, Tenant’s occupancy, use or manner of use
of the Premises (including, without limitation, any occupancy, use or manner of use that
constitutes a “place of public accommodation” under the ADA), or any installations in the Premises
by Tenant, or required by reason of a breach of any of Tenant’s covenants or agreements under this
Lease, whether or not such Requirements shall now be in effect or hereafter enacted or issued, and
whether or not any work required shall be ordinary or extraordinary or foreseen or unforeseen at
the date hereof. Notwithstanding the preceding sentence, Tenant shall not be obligated to perform
any Alterations necessary to comply with any Requirements, unless compliance shall be required by
reason of (i) any cause or condition arising out of any Alterations or installations in the
Premises (whether made by Tenant or by Landlord on behalf of Tenant), or (ii) Tenant’s particular
use, manner of use or occupancy on behalf of Tenant of the Premises (as opposed to mere office
use), or (iii) any breach of any of Tenant’s covenants or agreements under this Lease, or (iv) any
wrongful act or omission by Tenant or Persons Within Tenant’s Control, or (v) Tenant’s use or
manner of use or occupancy of the Premises as a “place of public accommodation” within the meaning
of the ADA, in which event Tenant’s obligation to perform any Alteration by reason of this clause
(v) shall apply only to the Premises. Notwithstanding the foregoing or any other provision of this
Lease to the contrary, Tenant shall comply with all Laws with respect to all restrooms on any full
floor of the Premises (whether or not any such restroom is existing as of the date of this Lease
and whether or not Tenant has retrofitted or altered the same) and with respect to all elevator
lobbies serving any full floor of the Premises (whether or not Tenant has retrofitted or altered
any such elevator lobby); such compliance shall include the making of any Alterations that may be
required by any Laws,
provided that, in no event shall Tenant be obligated to ensure that the elevator call buttons
comply with the ADA.



     Section 9.2. Tenant covenants and agrees that Tenant shall, at Tenant’s sole cost and expense
during the Term, comply at all times with all Requirements governing the use, generation, storage,
treatment and/or disposal of any Hazardous Materials (as defined below), the presence of which
results from or in connection with the act or omission of Tenant or Persons Within Tenant’s Control
or the breach of this Lease by Tenant or Persons Within Tenant’s Control. The term “Hazardous
Materials” shall mean any biologically or chemically active or other toxic or hazardous wastes,
pollutants or substances, including, without limitation, asbestos, PCBs, petroleum products and
by-products, substances defined or listed as “hazardous substances” or “toxic substances” or
similarly identified in or pursuant to the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. § 9601 et seq., and as hazardous wastes under the Resource
Conservation and Recovery Act, 42 U.S.C. § 6010, et seq., any chemical substance or mixture
regulated under the Toxic Substance Control Act of 1976, as amended, 15 U.S.C. § 2601,
et seq., any “toxic pollutant” under the Clean Water Act, 33 U.S.C. § 466 et seq.,
as amended, any hazardous air pollutant under the Clean Air Act, 42 U.S.C. § 7401 et seq.,
hazardous materials identified in or pursuant to the Hazardous Materials Transportation Act, 49
U.S.C. § 1802, et seq., and any hazardous or toxic substances or pollutant regulated under
any other Requirements. Tenant shall agree to execute, from time to time, at Landlord’s request,
affidavits, representations and the like concerning Tenant’s best knowledge and belief



21









 




regarding
the presence of Hazardous Materials in, on, under or about the Premises, the Building or the Land.
Tenant shall indemnify and hold harmless all Indemnitees from and against any loss, cost, damage,
liability or expense (including attorneys’ fees and disbursements) arising by reason of any clean
up, removal, remediation, detoxification action or any other activity required or recommended of
any Indemnitees by any Government Authority by reason of the presence in or about the Building or
the Premises of any Hazardous Materials, as a result of or in connection with the act or omission
of Tenant or Persons Within Tenant’s Control or the breach of this Lease by Tenant or Persons
Within Tenant’s Control. In no event shall Tenant be responsible for Hazardous Materials existing
in the Premises prior to the commencement date of the Sublease, except to the extent that, in the
course of the performance of Alterations by Tenant or otherwise, Tenant or Persons Within Tenant’s
Control disturb such Hazardous Materials. The foregoing covenants and indemnity shall survive the
expiration or any termination of this Lease.



     Section 9.3. If Tenant shall receive notice of any violation of, or defaults under, any
Requirements, liens or other encumbrances applicable to the Building or the Premises, Tenant shall
give prompt notice thereof to Landlord.



     Section 9.4. If any governmental license or permit (other than a certificate of occupancy)
shall be required for the proper and lawful conduct of Tenant’s business and if the failure to
secure such license or permit would, in any way, affect Landlord or the Building, then Tenant, at
Tenant’s expense, shall promptly procure and thereafter maintain, submit for inspection by
Landlord, and at all times comply with the terms and conditions of, each such license or permit.



     Section 9.5. Tenant, at Tenant’s sole cost and expense and after notice to Landlord, may
contest, by appropriate proceedings prosecuted diligently and in good faith, the legality or
applicability of any Requirement affecting the Premises provided that: (a) neither Landlord
nor any Indemnitees shall be subject to criminal penalties, nor shall the Real Property or any part
thereof be subject to being condemned or vacated, nor shall the certificate of occupancy for the
Premises or the Building be suspended or threatened to be suspended, by reason of non-compliance or
by reason of such contest; (b) before the commencement of such contest, if Landlord or any
Indemnitees may be subject to any civil fines or penalties or if Landlord may be liable to any
independent third party as a result of such non-compliance, then Tenant shall furnish to Landlord
either (i) a bond of a surety company satisfactory to Landlord, in form and substance reasonably
satisfactory to Landlord, and in an amount at least equal to Landlord’s estimate of the sum of
(A) the cost of such compliance, (B) the penalties or fines that may accrue by reason of such
non-compliance (as reasonably estimated by Landlord) and (C) the amount of such liability to
independent third parties, and shall indemnify Landlord (and any Indemnitees) against the cost of
such compliance and liability resulting from or incurred in connection with such contest or
non-compliance; or (ii) other security satisfactory in all respects to Landlord; (c) such
non-compliance or contest shall not constitute or result in a violation (either with the giving of
notice or the passage of time or both) of the terms of any Mortgage or Superior Lease, or if such
Superior Lease or Mortgage conditions such non-compliance or contest upon the taking of action or
furnishing of security by Landlord, such action shall be taken or such security shall be furnished
at the expense of Tenant; and (d) Tenant shall keep Landlord regularly advised as to the status of
such proceedings.



22









 






     Section 9.6. Landlord shall comply with all Laws which shall impose a duty on Landlord or
Tenant with respect to the Premises or the Real Property with which Tenant is not obligated to
comply, if and solely to the extent that such non-compliance by Landlord prevents or materially
impairs Tenant from performing work or using the Premises for its normal business operations. In
no event shall Landlord be obligated to abate any Hazardous Materials existing in the Premises
unless Landlord introduces such Hazardous Materials into the Premises after the date of this Lease.



ARTICLE 10



SUBORDINATION




     Section 10.1. This Lease shall be subject and subordinate to each Superior Lease and to each
Mortgage, whether made prior to or after the execution of this Lease, and to all renewals,
extensions, supplements, amendments, modifications, consolidations and replacements thereof or
thereto, substitutions therefor, and advances made thereunder. This clause shall be self-operative
and no further agreement of subordination shall be required to make the interest of any Lessor or
Mortgagee superior to the interest of Tenant hereunder. In confirmation of such subordination,
however, Tenant shall promptly execute and deliver, at its own cost and expense, any document, in
recordable form if requested, that Landlord, any Lessor or any Mortgagee may request to evidence
such subordination; and if Tenant fails to execute, acknowledge or deliver any such document within
five (5) days after request therefor, Tenant hereby irrevocably constitutes and appoints Landlord
as Tenant’s attorney-in-fact, coupled with an interest, to execute, acknowledge and deliver any
such document for and on behalf of Tenant. Tenant shall not do
anything that would constitute a default under any Superior Lease or Mortgage, or omit to do
anything that Tenant is obligated to do under the terms of this Lease so as to cause Landlord to be
in default thereunder. If, in connection with the financing of the Real Property, the Building or
the interest of the lessee under any Superior Lease, or if, in connection with the entering into of
a Superior Lease, any lending institution or Lessor, as the case may be, requests reasonable
modifications of this Lease that do not increase rent or change the Term of this Lease, or
adversely affect the rights or obligations of Tenant under this Lease, Tenant shall make such
modifications.



     Section 10.2. If, at any time prior to the expiration of the Term, any Superior Lease shall
terminate or shall be terminated for any reason, or any Mortgagee comes into possession of the Real
Property or the Building or the estate created by any Superior Lease by receiver or otherwise,
Tenant shall attorn, from time to time, to any such owner, Lessor or Mortgagee or any person
acquiring the interest of Landlord as a result of any such termination, or as a result of a
foreclosure of the Mortgage or the granting of a deed in lieu of foreclosure, upon the then
executory terms and conditions of this Lease (except as provided below), for the remainder of the
Term, provided that such owner, Lessor or Mortgagee, as the case may be, or receiver caused to be
appointed by any of the foregoing, is then entitled to possession of the Premises. Any such
attornment shall be made upon the condition that no such owner, Lessor or Mortgagee shall be:



               (1) liable for any act or omission of any prior landlord (including, without limitation, the
then defaulting landlord); or



23









 





               (2) subject to any defense, abatement, or offsets (except as expressly set forth in this
Lease) which Tenant may have against any prior landlord (including, without limitation, the then
defaulting landlord); or



               (3) bound by any payment of Rental which Tenant might have paid for more than one month in
advance of its due date to any prior landlord (including, without limitation, the then defaulting
landlord); or



               (4) bound by any obligation to make any payment to Tenant which was required to be made prior
to the time such owner, Lessor or Mortgagee succeeded to any prior landlord’s interest; or



               (5) accountable for any monies deposited with Landlord (including security deposits), except
to the extent such monies are actually received by such owner, Lessor or Mortgagee, or



               (6) bound by any surrender or termination of this Lease (other than as expressly provided for
in this Lease) made without the consent of such owner, Lessor or Mortgagee, or any amendment or
modification of this Lease made without the consent of such owner, Lessor or Mortgagee, other than
those amendments or modifications entered into as a result of Tenant’s exercise of the renewal or
expansion option contained in this Lease, provided such amendments or modifications contain no
changes to this Lease other than those expressly related to such option as set forth in this Lease;
or



               (7) bound by any obligation to perform any work or to make improvements to the Premises except
for (i) repairs and maintenance pursuant to the provisions of Article 7, (ii) repairs to
the Premises or any part thereof as a result of damage by fire or other casualty pursuant to
Article 13, but only to the extent that such repairs can be reasonably made from the net
proceeds of any insurance actually made available to such owner, Lessor or Mortgagee and
(iii) repairs to the Premises as a result of a partial condemnation pursuant to Article 14,
but only to the extent that such repairs can be reasonably made from the net proceeds of any award
made available to such owner, Lessor or Mortgagee.


The provisions of this Section 10.2 shall inure to the benefit of any such owner, Lessor or
Mortgagee, shall apply notwithstanding that, as a matter of law, this Lease may terminate upon the
termination of any such Superior Lease, and shall be self-operative upon any such demand, and no
further agreement shall be required to give effect to said provisions. Tenant, however, upon
demand of any such owner, Lessor or Mortgagee, shall execute, from time to time, agreements in
confirmation of the foregoing provisions of this Section 10.2, satisfactory to any such
owner, Lessor or Mortgagee, and acknowledging such attornment and setting forth the terms and
conditions of its tenancy. Nothing contained in this Section 10.2 shall be construed to
impair any right otherwise exercisable by any such owner, Lessor or Mortgagee.



     Section 10.3. If requested by any Mortgagee, any Lessor or Landlord, Tenant shall promptly
execute and deliver, at Tenant’s own cost and expense, any document in accordance with the terms of
this Article 10, in recordable form, to evidence such subordination.



24









 





     Section 10.4. At any time and from time to time within ten (10) Business Days after notice to
Tenant or Landlord given by the other, or to Tenant given by a Lessor or Mortgagee (which ten (10)
day period is not subject to any notice and cure periods otherwise provided in this Lease), Tenant
or Landlord, as the case may be, shall, without charge, execute, acknowledge and deliver a
statement in writing addressed to such party as Tenant, Landlord, Lessor or Mortgagee, as the case
may be, may designate, in form satisfactory to Tenant, Landlord, Lessor or Mortgagee, as the case
may be, certifying all or any of the following: (i) that this Lease is unmodified and in full force
and effect (or if there have been modifications, that this Lease is in full force and effect as
modified and stating the modifications); (ii) whether the Term has commenced and Fixed Rent and
Additional Rent have become payable hereunder and, if so, the dates to which they have been paid;
(iii) whether or not, to the best knowledge of the signer of such certificate, Landlord is in
default in performance of any of the terms of this Lease and, if so, specifying each such event of
default of which the signer may have knowledge; (iv) whether Tenant has accepted possession of the
Premises; (v) whether Tenant has made any claim against Landlord under this Lease and, if so, the
nature thereof and the dollar amount, if any, of such claim; (vi) either that Tenant does not know
of any default in the performance of any provision of this Lease or specifying the details of any
default of which Tenant may have knowledge and stating what action Tenant is taking or proposes to
take with respect thereto; (vii) that, to the knowledge of Tenant, there are no proceedings pending
or threatened against Tenant before or by any court or administrative agency which, if adversely
decided, would materially and adversely affect the financial condition or operations of Tenant or,
if any such proceedings are pending or threatened to the knowledge of Tenant, specifying and
describing the same; and (viii) such further information with respect to this Lease or the Premises
as Landlord may reasonably request or Lessor or Mortgagee may require; it being intended that any
such
statement delivered pursuant hereto may be relied upon by any prospective purchaser of the
Real Property or any part thereof or of the interest of Landlord in any part thereof, by any
Mortgagee or prospective Mortgagee, by any Lessor or prospective Lessor, by any tenant or
prospective tenant of the Real Property or any part thereof, or by any prospective assignee of any
Mortgage or by any assignee of Tenant.


The failure of either Tenant or Landlord to execute, acknowledge and deliver to the other a
statement in accordance with the provisions of this Section 10.4 within said ten (10)
Business Day period shall constitute an acknowledgment by Tenant or Landlord, as the case may be,
which may be relied on by any person who would be entitled to rely upon any such statement, that
such statement as submitted by Landlord or Tenant, as the case may be, is true and correct.



     Section 10.5. In the event of a default by Landlord under this Lease which would give Tenant
the right, immediately or after the lapse of a period of time, to cancel or terminate this Lease or
to claim a partial or total eviction, or in the event of any other act or omission of Landlord
which would give Tenant the right to cancel or terminate this Lease which is not expressly provided
for in this Lease, Tenant shall not exercise such right until Tenant has given written notice of
such default, act or omission to the Lessor or Mortgagee and the Lessor or Mortgage has failed to
cure the default, act or omission giving rise to the cancellation or termination within the time
period as Landlord may be entitled to under this Lease plus a reasonable additional period, not to
exceed sixty (60) days; provided, however, in the case of a non-monetary default, if such
non-monetary default cannot be cured within such time period or cannot be cured until after the
Lessor or Mortgagee obtains possession of the Real Property,



25









 





then, provided the Lessor or Mortgagee
promptly commences such cure or commences proceedings under the Superior Lessor or Mortgage and
thereafter diligently prosecutes such cure to completion, such cure period shall be extended as
necessary to enable the Lessor or Mortgagee to effectuate such cure.



     Section 10.6. Landlord represents that as of the date of this Lease there is no Superior Lease
or Mortgage affecting the Real Property.



     Section 10.7. Landlord shall use “commercially reasonable efforts” (as defined below) to
obtain from the holder of any future Mortgage or the Lessor under any future Superior Lease a
non-disturbance agreement (“NDA”) in favor of Tenant that provides in substance that, so
long as Tenant shall not then be in default in the performance of any of its obligations under this
Lease beyond any applicable notice and cure period, Tenant’s possession of the Premises in
accordance with this Lease shall not be disturbed by such Person giving the non-disturbance
agreement or any successor or purchaser at a foreclosure sale (as the case may be) which shall
succeed to the rights of Landlord under this Lease. Landlord shall have no liability to Tenant if
such holder or Lessor refuses to deliver the non-disturbance agreement in favor of Tenant. Such
agreement shall be in such form as is customarily used by the Mortgagee or Lessor. For purposes of
this Section 10.7, “commercially reasonable efforts” shall mean that Landlord made a
written request of the Mortgagee or Lessor to deliver the non-disturbance agreement and has
followed up such written request with telephonic inquiries of the Mortgagee or Lessor until
Landlord has received a response. Landlord shall not be obligated to incur any costs (except
customary processing and legal fees) or to institute litigation to obtain such non-disturbance
agreement. Notwithstanding anything to the contrary contained in this Article 10, if
Landlord is
unable to obtain the NDA, then this Lease shall not be subordinate to the lien of such future
Mortgage or the Superior Lease.



ARTICLE 11



RULES AND REGULATIONS




     Section 11.1. Tenant and Persons Within Tenant’s Control shall comply with the Rules and
Regulations. Nothing contained in this Lease shall be construed to impose upon Landlord any duty
or obligation to enforce the Rules and Regulations or the terms, covenants or conditions in any
other lease against any other tenant, and Landlord shall not be liable to Tenant for violation of
the same by any other tenant, its employees, agents, visitors or licensees. Landlord shall not
discriminate against Tenant in enforcing the Rules and Regulations. In case of any conflict or
inconsistency between the provisions of this Lease and of any of the Rules and Regulations as
originally or as hereafter adopted, the provisions of this Lease shall control.



ARTICLE 12



INSURANCE, PROPERTY LOSS OR DAMAGE; REIMBURSEMENT




     Section 12.1.



26









 




          (A) No Tenant shall entrust any property to any Building employee. Any Building employee to
whom any property is entrusted by or on behalf of Tenant in violation of the foregoing prohibition
shall be deemed to be acting as Tenant’s agent with respect to such property and neither Landlord
nor its agents shall be liable for any damage to property of Tenant or of others entrusted to
employees of the Building, nor for the loss of or damage to any property of Tenant by theft or
otherwise. Landlord and Landlord’s agents shall not be liable for any damage to any of Tenant’s
Property or for interruption of Tenant’s business, however caused, including but not limited to
damage caused by other tenants or persons in the Building. Landlord shall not be liable for any
latent defect in the Premises or in the Building. The foregoing is not intended to relieve
Landlord from liability from any actual damages suffered by Tenant directly resulting from
Landlord’s negligence or willful misconduct.


          (B) If at any time any windows of the Premises are temporarily closed, darkened or covered for
any reason, including Landlord’s own acts, or if any such windows are permanently closed, darkened
or covered solely by reason of any Requirements, Landlord shall not be liable for any damage Tenant
may sustain thereby, and Tenant shall not be entitled to any compensation therefor nor abatement of
Fixed Rent or any other item of Rental, nor shall the same release Tenant from Tenant’s obligations
hereunder nor constitute an eviction.


          (C) Tenant shall give notice to Landlord promptly after Tenant learns of any accident,
emergency, occurrence for which Landlord might be liable, fire or other casualty and
all damages to or defects in the Premises or the Building for the repair of which Landlord
might be responsible or which constitutes Landlord’s property.



     Section 12.2. Tenant shall not do or permit to be done any act or thing in or upon the
Premises which will invalidate or be in conflict with the terms of the New York State standard
policies of fire insurance and liability (hereinafter referred to as “Building Insurance”);
and Tenant, at Tenant’s own expense, shall comply with all rules, orders, regulations and
requirements of all insurance boards, and shall not do or permit anything to be done in or upon the
Premises or bring or keep anything therein or use the Premises in a manner which increases the rate
of premium for any of the Building Insurance over the rate in effect at the commencement of the
Term of this Lease.



     Section 12.3. If by reason of any failure of Tenant to comply with the provisions of this
Lease, the rate of premium for Building Insurance or other insurance on the property and equipment
of Landlord shall increase, Tenant shall reimburse Landlord for that part of the insurance premiums
thereafter paid by Landlord which shall have been charged because of such failure by Tenant.
Tenant shall make said reimbursement on the first day of the month following such payment by
Landlord.



     Section 12.4.


          (A) Tenant, at Tenant’s sole cost and expense, shall obtain, maintain and keep in full force
and effect during the Term commercial general liability insurance (without deductible) in a form
approved in New York State (including broad form property damage coverages and coverage for
contractual liability recognizing the indemnity provisions of this Lease and protecting the
Indemnitees as required, whether or not Tenant is negligent or 


27









 






otherwise responsible for the
additional insured’s loss, liability or expense). The limits of liability shall be not less than
Five Million and 00/100 ($5,000,000.00) Dollars per occurrence, which amount may be satisfied with
a primary commercial general liability policy of not less than One Million and 00/100
($1,000,000.00) Dollars per occurrence and Two Million and 00/100 ($2,000,000.00) Dollars general
aggregate, and an excess (or “Umbrella”) liability policy affording coverage, at least as
broad as that afforded by the primary commercial general liability policy, in an amount not less
than the difference between Five Million and 00/100 ($5,000,000.00) Dollars and the amount of the
primary policy. Landlord, the Manager, any Lessors and any Mortgagees shall be included as
additional insureds in said policies and shall be protected against all liability arising in
connection with this Lease, whether or not Tenant is negligent or otherwise responsible for the
additional insured’s loss, liability or expense (such protection being that provided under form CG
20 10 dated prior to July 2004). All said policies of insurance shall be written as “occurrence”
policies with general aggregate limit provided on a “per location” basis. Whenever, in Landlord’s
reasonable judgment, good business practice and changing conditions indicate a need for additional
amounts or different types of insurance coverage, Tenant shall, within ten (10) days after
Landlord’s request, obtain such insurance coverage, at Tenant’s expense.


          (B) Tenant, at Tenant’s sole cost and expense, shall obtain, maintain and keep in full force
and effect during the Term: (i) “All Risk” insurance, with deductibles in an amount reasonably
satisfactory to Landlord, protecting and indemnifying Tenant against any and all
damage to or loss of any Alterations and leasehold improvements, including any made by
Landlord to prepare the Premises for Tenant’s occupancy, and Tenant’s Property. Such insurance
shall not contain any exclusions for flood or acts of terrorism or similar events. All said
policies shall cover the full replacement value of all Alterations, leasehold improvements and
Tenant’s Property; and (ii) Workers’ compensation and occupational disease insurance, employee
benefit insurance or any other insurance in the statutory amounts required by the laws of the State
of New York with broad form all-states endorsement, and employer’s liability insurance with
statutory limits. The coverage shall be “All Risk” as stated in clause (i) above.


          (C) All policies of insurance shall be: (i) written as primary policy coverage and not
contributing with or in excess of any coverage which Landlord or any Lessor may carry; and (ii)
issued by reputable and independent insurance companies rated in Best’s Insurance Guide or any
successor thereto (or, if there is none, an organization having a national reputation), as having a
general policyholder rating of “A-” and a financial rating of at least “10”, and which are licensed
to do business in the State of New York. Tenant shall, not later than ten (10) Business Days prior
to the Commencement Date, deliver to Landlord the policies of insurance (or certificates thereof)
and shall thereafter furnish to Landlord, at least thirty (30) days prior to the expiration of any
such policies and any renewal thereof, a new policy (or certificate) in lieu thereof. Each of said
policies shall also contain a provision whereby the insurer agrees not to cancel, fail to renew,
diminish or materially modify said insurance policy(ies) without having given Landlord, the Manager
and any Lessors and Mortgagees at least thirty (30) days prior written notice thereof. Tenant
shall promptly send to Landlord a copy of all notices sent to Tenant by Tenant’s insurer.


          (D) Tenant shall pay all premiums and charges for all of said policies, and, if Tenant shall
fail to make any payment when due or carry any such policy, Landlord may, but 


28









 






shall not be
obligated to, make such payment or carry such policy, and the amount paid by Landlord, with
interest thereon (at the Applicable Rate), shall be repaid to Landlord by Tenant on demand, and all
such amounts so repayable, together with such interest, shall be deemed to constitute Additional
Rent hereunder. Payment by Landlord of any such premium, or the carrying by Landlord of any such
policy, shall not be deemed to waive or release the default of Tenant with respect thereto.


Section 12.5.



     (A) Landlord shall cause each policy carried by Landlord insuring the Building against loss,
damage or destruction by fire or other casualty, and Tenant shall cause each insurance policy
carried by Tenant and insuring the Premises and Tenant’s Alterations, leasehold improvements and
Tenant’s Property against loss, damage or destruction by fire or other casualty, to be written in a
manner so as to provide that the insurance company waives all rights of recovery by way of
subrogation against Landlord, Tenant and any tenant of space in the Building in connection with any
loss or damage covered by any such policy. Neither party shall be liable to the other for the
amount of such loss or damage which is in excess of the applicable deductible, if any, caused by
fire or any of the risks enumerated in its policies, provided that such waiver was obtainable at
the time of such loss or damage. However, if such waiver cannot be obtained, or shall be
obtainable only by the payment of an additional premium charge above that which is charged by
companies carrying such insurance without such waiver of subrogation, then
the party undertaking to obtain such waiver shall notify the other party of such fact and such
other party shall have a period of ten (10) days after the giving of such notice to agree in
writing to pay such additional premium if such policy is obtainable at additional cost (in the case
of Tenant, pro rata in proportion of Tenant’s rentable area to the total rentable area covered by
such insurance); and if such other party does not so agree or the waiver shall not be obtainable,
then the provisions of this Section 12.5 shall be null and void as to the risks covered by
such policy for so long as either such waiver cannot be obtained or the party in whose favor a
waiver of subrogation is desired shall refuse to pay the additional premium. If the release of
either Landlord or Tenant, as set forth in the second sentence of this Section 12.5, shall
contravene any law with respect to exculpatory agreements, the liability of the party in question
shall be deemed not released, but no action or rights shall be sought or enforced against such
party unless and until all rights and remedies against the other’s insurer are exhausted and the
other party shall be unable to collect such insurance proceeds.


          (B) The waiver of subrogation referred to in Section 12.5(A) above shall extend to the
agents and employees of each party (including, as to Landlord, the Manager and subtenants of
Tenant), but only if and to the extent that such waiver can be obtained without additional charge
(unless such party shall pay such charge). Nothing contained in this Section 12.5 shall be
deemed to relieve either party from any duty imposed elsewhere in this Lease to repair, restore and
rebuild.


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ARTICLE 13




DESTRUCTION BY FIRE OR OTHER CAUSE




Section 13.1. If the Premises or any part thereof shall be damaged by fire or other casualty,




     Tenant shall give prompt written notice thereof to Landlord. Landlord shall, subject to the
provisions of Sections 13.2 and 13.3 below, proceed with reasonable diligence,
after receipt of the net proceeds of insurance (unless Landlord self-insures), to repair or cause
to be repaired such damage at its expense, but in no event shall Landlord be obligated to repair
any damage to or to restore any of Tenant’s leasehold improvements or Alterations, whether
initially installed by Landlord or Tenant. Tenant shall repair and restore in accordance with
Article 6 and with reasonable dispatch all leasehold improvements and Alterations made by
or for Tenant in the Premises. If the Premises, or any part thereof, shall be rendered
untenantable by reason of such damage and such damage shall not be due to the intentional fault of
Tenant or Persons Within Tenant’s Control, then the Fixed Rent and the Escalation Rent hereunder,
or an amount thereof apportioned according to the area of the Premises so rendered untenantable (if
less than the entire Premises shall be so rendered untenantable), shall be abated for the period
from the date of such damage to the date when the repair of such damage shall have been
substantially completed. Notwithstanding any provisions contained in this Lease to the contrary,
there shall be no abatement with respect to any portion of the Premises which has not been so
damaged, which is accessible and which is reasonably usable for the Permitted Use. Landlord’s
determination of the date when the Premises are tenantable shall be controlling unless Tenant
disputes the same by notice to Landlord given within ten (10) Business Days after such
determination by Landlord, and pending resolution of such dispute, Tenant shall commence the
payment of the Fixed Rent and the Escalation Rent that had been abated, as of the date
specified by Landlord. Tenant covenants and agrees to cooperate with Landlord and any Lessor or
any Mortgagee in their efforts to collect insurance proceeds (including rent insurance proceeds)
payable to such parties. Landlord shall not be liable for any delay which may arise by reason of
adjustment of insurance on the part of Landlord and/or Tenant, or any cause beyond the control of
Landlord or contractors employed by Landlord.



     Section 13.2. Landlord shall not be liable for any inconvenience or annoyance to Tenant or
injury to the business of Tenant resulting in any way from damage from fire or other casualty or
the repair thereof. Tenant understands that Landlord, in reliance upon Section 12.4, will
not carry insurance of any kind on Tenant’s Property, Tenant’s Alterations and on leasehold
improvements, and that Landlord shall not be obligated to repair any damage thereto or replace the
same. In the event of a partial or total destruction of the Premises, Tenant shall as soon as
practicable remove any and all of Tenant’s Property from the Premises or the portion thereof
destroyed, as the case may be, and if Tenant does not promptly so remove Tenant’s Property,
Landlord may discard the same after giving Tenant ten (10) Business Days prior notice of the same
or may remove Tenant’s Property to a public warehouse for deposit or retain the same in its own
possession and at its discretion may sell the same at either public auction or private sale, the
proceeds of which shall be applied first to the expenses of removal, storage and sale, second to
any sums owed by Tenant to Landlord, with any balance remaining to be paid to Tenant; if the
expenses of such removal, storage and sale shall exceed the proceeds of any sale, Tenant shall pay
such excess to Landlord upon demand.



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     Section 13.3.


          (A) Notwithstanding anything to the contrary contained in Sections 13.1 and
13.2 above, in the event that:



                         (i) at least one-third of the rentable square feet of the Building shall be damaged by fire or
other casualty so that substantial alteration or reconstruction of the Building shall, in
Landlord’s sole opinion, be required (whether or not the Premises shall have been damaged by fire
or other casualty and without regard to the structural integrity of the Building); or



                         (ii) the Premises shall be totally or substantially damaged or shall be rendered wholly or
substantially untenantable (and at least 100,000 of the rentable square feet of the Building other
than the Premises shall also have been totally or substantially damaged or shall be rendered wholly
or substantially untenantable); or



                         (iii) there shall be any damage to the Premises within the last year of the Term wherein the
cost of repair exceeds an amount equal to three (3) monthly installments of Fixed Rent,


then Landlord in the case of the circumstances described in clauses (i) through (iii) above, and
Tenant in the circumstances described in clause (iii) above only, may, in such party’s sole and
absolute discretion, terminate this Lease and the term and estate hereby granted, by notifying the
other party in writing of such termination within one hundred twenty (120) days after the date of
such damage. In the event that such a notice of termination shall be given, then this Lease and
the term and estate hereby granted shall expire as of the date of termination stated in said notice
with the same effect as if that were the Fixed Expiration Date, and the Fixed Rent and Escalation
Rent hereunder shall be apportioned as of such date.


          (B) Notwithstanding anything to the contrary contained in this Section 13.3, Landlord
shall deliver to Tenant within ninety (90) days after the date of any casualty an estimate prepared
by a reputable contractor selected by Landlord setting forth such contractor’s estimate as to the
time reasonably required to repair such damage. If the period to repair set forth in any such
estimate exceeds twelve (12) months from the date of such casualty, Tenant may elect to terminate
this Lease by notice to Landlord given not later than thirty (30) days following Tenant’s receipt
of such estimate. If Tenant exercises such election, this Lease and the term and estate hereby
granted shall expire as of the 60th day after notice of such election given by Tenant with the same
effect as if that were the Fixed Expiration Date, and the Fixed Rent and Escalation Rent hereunder
shall be apportioned as of such date. If (i) Tenant shall not have exercised its right to
terminate this Lease pursuant to this Section 13.3(B), but the damage shall not have been
repaired by the date set forth in such estimate (subject to extension due to Unavoidable Delay), or
(ii) the period to repair in such estimate is twelve (12) months or less, but the damage shall not
have been repaired within twelve (12) months after the date of the casualty (subject to extension
due to Unavoidable Delay), Tenant may elect to terminate this Lease by notice to Landlord given not
later than thirty (30) days following the period set forth in such estimate for completion (where
the same exceeds twelve (12) months in the circumstances contemplated in clause (i) or following
such twelve (12) month period (where the period set forth in such estimate for 


31









 







completion was
twelve (12) months or less, in the circumstances contemplated in clause (ii)), unless prior to the
giving of such notice, Landlord shall have Substantially Completed such repair.



     Section 13.4. Except as may be provided in Section 12.5, nothing herein contained
shall relieve Tenant from any liability to Landlord or to Landlord’s insurers in connection with
any damage to the Premises or the Building by fire or other casualty if Tenant shall be legally
liable in such respect.



     Section 13.5. This Lease shall be considered an express agreement governing any case of damage
to or destruction of the Building or any part thereof by fire or other casualty, and Section 227 of
the Real Property Law of the State of New York providing for such a contingency in the absence of
express agreement and any other law of like import now or hereafter in force, shall have no
application in such case.



     Section 13.6. Notwithstanding anything to the contrary contained in this Article 13,
in the event that during the term of the Sublease (a) the Premises or (b) the Building shall be
damaged or destroyed by fire or other casualty to the extent that the lease to CT is terminated in
accordance with the terms and conditions thereof, such termination shall also be deemed to
constitute a termination of this Lease in accordance with the provisions of this Article
13. In such event, the Term of this Lease shall expire on such date with the same force and
effect as if such date were originally provided herein as the Expiration Date (notwithstanding the
fact that the Commencement Date shall not have occurred as of such date).



ARTICLE 14



EMINENT DOMAIN




     Section 14.1. If the whole of the Real Property, the Building or the Premises is acquired or
condemned for any public or quasi-public use or purpose, this Lease and the Term shall end as of
the date of the vesting of title with the same effect as if said date were the Fixed Expiration
Date. If only a part of the Real Property and not the entire Premises is so acquired or condemned
then, (1) except as hereinafter provided in this Section 14.1, this Lease and the Term
shall continue in effect but, if a part of the Premises is included in the part of the Real
Property so acquired or condemned, from and after the date of the vesting of title, the Fixed Rent
and Tenant’s Share shall be reduced in the proportion which the area of the part of the Premises so
acquired or condemned bears to the total area of the Premises immediately prior to such acquisition
or condemnation; (2) whether or not the Premises are affected thereby, Landlord, at Landlord’s
option, may give to Tenant, within sixty (60) days next following the date upon which Landlord
receives notice of vesting of title, a sixty (60) day notice of termination of this Lease; and
(3) if the part of the Real Property so acquired or condemned contains more than thirty (30%)
percent of the total area of the Premises immediately prior to such acquisition or condemnation, or
if, by reason of such acquisition or condemnation, Tenant no longer has reasonable access to and
use of the Premises, Tenant, at Tenant’s option, may give to Landlord, within sixty (60) days next
following the date upon which Tenant receives notice of vesting of title, a sixty (60) day notice
of termination of this Lease. If any such sixty (60) day notice of termination is given, by
Landlord or Tenant, this Lease and the Term shall come to an end and



32









 





expire upon the expiration of
said sixty (60) days with the same effect as if the date of expiration of said sixty (60) days were
the Fixed Expiration Date. If a part of the Premises is so acquired or condemned and this Lease
and the Term are not terminated pursuant to the foregoing provisions of this Section 14.1,
Landlord, at Landlord’s cost and expense, shall restore that part of the Premises not so acquired
or condemned to a self-contained rental unit, exclusive of Tenant’s Alterations, Tenant’s leasehold
improvements and Tenant’s Property. In the event of any termination of this Lease and the Term
pursuant to the provisions of this Section 14.1, the Fixed Rent shall be apportioned as of
the date of sooner termination and any prepaid portion of the Fixed Rent or Escalation Rent for any
period after such date shall be refunded by Landlord to Tenant.



     Section 14.2. In the event of any such acquisition or condemnation of all or any part of the
Real Property, Landlord shall be entitled to receive the entire award for any such acquisition or
condemnation. Tenant shall have no claim against Landlord or the condemning authority for the
value of any unexpired portion of the Term and Tenant hereby expressly assigns to Landlord all of
its right in and to any such award. Nothing contained in this Section 14.2 shall be deemed
to prevent Tenant from making a separate claim in any condemnation proceedings for the value of any
Tenant’s Property or Alterations included in such taking, and for any moving expenses, so long as
Landlord’s award is not reduced thereby.



     Section 14.3. If the whole or any part of the Premises is acquired or condemned temporarily
during the Term for any public or quasi-public use or purpose, the Term shall not be
reduced or affected in any way but Tenant shall not be obligated to pay any Rental for the
period of the taking



     Section 14.4. Notwithstanding anything to the contrary contained in this Article 14,
in the event that during the term of the Sublease, all or a portion of the Building or the Premises
shall be taken by condemnation, and such condemnation shall result in the termination of the lease
to CT in accordance with the terms and conditions thereof, such termination shall also be deemed to
constitute a termination of this Lease in accordance with the provision of this Article 14.
In such event, the Term of this Lease shall expire on such date with the same force and effect as
if such date were originally provided herein as the Expiration Date (notwithstanding the fact that
the Commencement Date shall not have occurred as of such date).



ARTICLE 15



ASSIGNMENT, SUBLETTING, MORTGAGE, ETC.




     Section 15.1. Except as otherwise provided in this Article 15, Tenant shall not
(a) assign this Lease (whether by operation of law, transfers of interests in Tenant or otherwise);
or (b) mortgage or encumber Tenant’s interest in this Lease, in whole or in part; or (c) sublet, or
permit the subletting of, the Premises or any part thereof; or (d) permit the Premises or any part
thereof to be occupied or used for desk space, mailing privileges or otherwise by any person other
than Tenant, without Landlord’s consent. Tenant shall not advertise or authorize a broker to
advertise for a subtenant or assignee, without in each instance, obtaining the prior written
consent of Landlord to Tenant’s form of advertisement, which shall not be unreasonably withheld or
delayed.



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     Section 15.2. If Tenant’s interest in this Lease shall be assigned in violation of the
provisions of this Article 15, such assignment shall be invalid and of no force and effect
against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed
Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the
Premises or any part thereof are sublet to, or occupied by, or used by, any person other than
Tenant, whether or not in violation of this Article 15, Landlord, after default by Tenant
under this Lease, may collect any item of Rental or other sums paid by the subtenant, user or
occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed
Rent and the items of Rental reserved in this Lease. No such assignment, subletting, occupancy, or
use, whether with or without Landlord’s prior consent, nor any such collection or application
of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant
or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or
user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its
obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or
use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to
any further assignment, subletting, occupancy or use. Any person to which this Lease is assigned
with Landlord’s consent shall be deemed without more to have assumed all of the obligations arising
under this Lease from and after the date of such assignment and shall execute and deliver to
Landlord, upon demand, an instrument confirming such assumption.

 Notwithstanding and subsequent to any assignment, Tenant’s primary liability hereunder shall
continue notwithstanding (a) any subsequent amendment hereof, or (b) Landlord’s forbearance in
enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which
Tenant hereby consents in advance. If any such amendment operates to increase the obligations of
Tenant under this Lease, the liability under this Section 15.2 of the assigning Tenant
shall continue to be no greater than if such amendment had not been made (unless such party shall
have expressly consented in writing to such amendment).



     Section 15.3.


          (A) For purposes of this Article 15, (i) the transfer of a majority of the issued and
outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of
a majority of the total interest in any partnership tenant or subtenant, or the transfer of control
in any general or limited liability partnership tenant or subtenant, or the transfer of a majority
of the issued and outstanding membership interests in a limited liability company tenant or
subtenant, however accomplished, whether in a single transaction or in a series of related or
unrelated transactions, involving the tenant, subtenant and/or its parent (including, without
limitation, and by way of example only, the transfer of a majority of the outstanding capital stock
of a company, which company owns 100% of a second tier company, which in turn owns 51% of the
outstanding capital stock of a corporate tenant hereunder), shall be deemed an assignment of this
Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital
stock of any corporate tenant, subtenant or parent, shall be deemed not to include the sale of such
stock by persons or parties, other than those deemed “affiliates” of Tenant within the meaning of
Rule 144 promulgated under the Securities Act of 1933, as amended, through the “over-the-counter
market” or through any recognized stock exchange, (ii) any increase in the amount of issued and/or
outstanding capital stock of any corporate tenant, or of a corporate subtenant, or such tenant’s or
subtenant’s parent, or of the issued and outstanding membership interests in a limited liability
company tenant or subtenant, or such tenant’s or subtenant’s parent,


34









 






and/or the creation of one or
more additional classes of capital stock of any corporate tenant or any corporate subtenant, or
such tenant’s or subtenant’s parent, in a single transaction or a series of related or unrelated
transactions involving the tenant, subtenant and/or its parent, resulting in a change in the legal
or beneficial ownership of such tenant, subtenant or parent so that the shareholders or members of
such tenant, subtenant or parent existing immediately prior to such transaction or series of
transactions shall no longer own a majority of the issued and outstanding capital stock or
membership interests of such entity, shall be deemed an assignment of this Lease, (iii) an
agreement by any other person or entity, directly or indirectly, to assume Tenant’s obligations
under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant,
to whom Tenant’s interest under this Lease passes by operation of law, or otherwise, shall be bound
by the provisions of this Article 15, (v) a modification, amendment or extension of a
sublease shall be deemed a sublease, and (vi) the change or conversion of Tenant from an entity in
which the partners or members have personal liability under this Lease to a limited liability
company, a limited liability partnership or any other entity which possesses the characteristics of
limited liability shall be deemed an assignment. Tenant agrees to furnish to Landlord on request
at any time such information and assurances as Landlord may reasonably request that neither Tenant,
nor any previously permitted subtenant, has violated the provisions of this Article 15.


          (B) The provisions of clauses (a), (c) and (d) of Section 15.1 and Section
15.3(A), Section 15.4, Section 15.5 and Section 15.6 shall not apply to
(and Landlord’s consent shall not be required for) (i) a change in ownership of Tenant as a result
of a merger, consolidation or reorganization or the sale of substantially all of Tenant’s assets or
stock (provided such merger, consolidation, reorganization or transfer of assets or stock is for a
good business purpose and not principally for the purpose of transferring the leasehold estate
created by this Lease, and provided further, that the assignee has a net worth at least equal to or
in excess of the net worth of Tenant immediately prior to such transaction); (ii) the sale,
exchange, issuance or other transfer of Tenant’s stock on a national stock exchange, which
transaction shall not be deemed an assignment; or (iii) the assignment of this Lease or sublease of
all or any portion of the Premises to, or the use of the Premises by, an entity which controls, is
controlled by or is under the common control of Tenant. Tenant shall notify Landlord before any
such transaction is consummated, unless such prior notice violates any securities laws or
regulatory requirements applicable to Tenant, in which event Tenant shall notify Landlord promptly
after Tenant is permitted to do so.


          (C) The term “control” as used in this Lease (i) in the case of a corporation, shall mean
ownership of more than fifty (50%) percent of the outstanding capital stock of that corporation,
(ii) in the case of a general or limited liability partnership, shall mean ownership of more than
fifty (50%) percent of the general partnership or membership interests of the partnership, (iii) in
the case of a limited partnership, shall mean ownership of more than fifty (50%) percent of the
general partnership interests of such limited partnership, and (iv) in the case of a limited
liability company, shall mean ownership of more than fifty (50%) percent of the membership
interests of such limited liability company.



     Section 15.4.



35









 




          (A) If Landlord has the right to and shall not exercise its rights pursuant to
paragraph (B)(x) or (y) of this Section 15.4, Landlord shall not unreasonably withhold,
condition or delay its consent to a proposed subletting of the Premises, or an assignment of this
Lease, provided that in each such instance, the following requirements shall have been satisfied
(if Tenant proposes a partial sublet, references in this Section 15.4 to the Premises
shall, unless the context otherwise requires, refer to such portion):



                         (1) in the case of a proposed subletting, the listing or advertising for subletting of the
Premises shall not have included a proposed rental rate, provided, however, that Tenant may quote
in writing directly to prospective subtenants the proposed rental rate;



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



                         (3) the proposed subtenant or assignee shall have a financial standing, be engaged in a
business, and propose to use the Premises in a manner in keeping with the standards in such
respects of the other tenancies in the Building. Tenant acknowledges that Landlord, as a religious
institution, may have special considerations in determining if the business or proposed use of a
proposed subtenant or assignee is objectionable, and Tenant agrees that Landlord’s reasonable
judgment in such matters shall be conclusive;



                         (4) provided that Landlord then has comparable space available for lease in the Building or in
any other comparable building owned by Landlord or its affiliate in the Hudson Square market of
Manhattan or reasonably expects to have comparable space available for lease in the Building or in
any other comparable building owned by Landlord or its affiliate in the Hudson Square market of
Manhattan within the following six month period, the proposed subtenant or assignee shall not be
(x) a Person with whom Landlord is then negotiating or discussing the leasing of space in the
Building; or (y) a tenant in or occupant of the Building or any Person that, directly or
indirectly, is controlled by, controls or is under common control with any such tenant or occupant;



                         (5) intentionally omitted;



                         (6) any subletting shall be expressly subject to all of the terms, covenants, conditions and
obligations on Tenant’s part to be observed and performed under this Lease and any assignment or
subletting shall be subject to the further condition and restriction that this Lease or the
sublease shall not be further assigned, encumbered or otherwise transferred or the subleased
premises further sublet by the subtenant in whole or in part, or any part thereof suffered or
permitted by the assignee or subtenant to be used or occupied by others, without the prior written
consent of Landlord in each instance, which consent shall be granted or withheld in accordance with
the provisions of this Lease, and if Landlord shall consent to any further subletting by the
subtenant or the assignment of the sublease, Sections 15.5 and 15.6 of this Lease
shall apply to any such transactions as if the further subletting or assignment of the sublease
were a proposed subletting or assignment being made by Tenant under this Lease so that Landlord
shall be entitled to receive all amounts described in such Sections;



                         (7) the subleased premises shall be regular in shape and at no time shall there be more than
two (2) occupants not affiliated with Tenant with separately demised



36









 




space, in addition to Tenant,
in the Premises, all of whom shall have direct access through existing public corridors to
elevators, fire stairs and core rest rooms;


          (8) Tenant shall reimburse Landlord on demand for any reasonable costs that may be incurred by
Landlord in connection with said assignment or sublease, including, without limitation, any
processing fees, reasonable attorneys’ fees and disbursements, and the costs of making
investigations as to the acceptability of the proposed assignee or subtenant;


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


          (10) the nature of the occupancy of the proposed assignee or subtenant will not cause an
excessive density of employees or traffic or make excessive demands on the Building Systems or
present a materially greater security risk to the Building than is presented by Tenant; and


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


          (B) Should Tenant desire to assign this Lease or sublet the Premises or any portion thereof,
Tenant shall give written notice (the “Sublease or Assignment Statement”) thereof to
Landlord specifying the financial and other material terms on which Tenant is willing to assign
this Lease or sublet the Premises or the applicable portion thereof and the effective date of such
assignment or subletting, which shall be no less than thirty (30) nor more than two hundred seventy
(270) days after the date of Tenant’s notice to Landlord. Landlord shall have the right,
exercisable within thirty (30) days after Landlord’s receipt of the Sublease or Assignment
Statement (including any additional information reasonably requested by Landlord), to sublet (in
its own name or that of its designee) such portion of the Premises from Tenant on the terms and


37









 






conditions set forth in the Sublease or Assignment Statement, subject to the further provisions of
paragraph (C) of this Section 15.4, or in the case of an assignment, the additional right
to terminate this Lease. Subject to the other provisions of this Section 15.4(B), if
Landlord shall notify Tenant within said thirty (30) day period of Landlord’s intention not to
exercise its rights pursuant to this Section 15.4(B) (or if Landlord shall be deemed not to
have exercised such rights, as set forth in this Section 15.4(B)), Tenant shall be free to
consummate a subletting or assignment on the same material terms and
conditions ( i.e., an
offer having financial terms with a net present value (when calculated in a manner consistent with
the calculation of the proposed Rental rate), including the term thereof, of not more than 7.5%
more favorable to the subtenant or assignee than the financial terms set forth in the Sublease or
Assignment Statement) set forth in the Sublease or Assignment Statement, subject to the terms and
conditions of this Lease, including paragraph (A) of this Section 15.4. If Tenant shall
desire to modify the terms and conditions set forth in the Sublease or Assignment Statement, Tenant
shall submit the revised Sublease or Assignment Statement to Landlord. Landlord shall have the
right, exercisable within ten (10) Business Days after receipt of the revised Sublease or
Assignment Statement (including any additional information reasonably requested by Landlord) to
sublet (in its own name or that of its designee) such portion of the Premises from Tenant on the
terms and conditions set forth in the Sublease or Assignment Statement, subject to the further
provisions of paragraph (C) of this Section 15.4, or in the case of an assignment, the
additional right to terminate this Lease. The space Tenant proposes to sublease is the
“Recapture Space.” Subject to this Section 15.4(B), if
Landlord shall notify Tenant within said ten (10) Business Day period of Landlord’s intention
not to exercise its rights pursuant to this Section 15.4(B) (or if Landlord shall be deemed
not to have exercised such rights, as set forth in this Section 15.4(B)), Tenant shall be
free to consummate a subletting or assignment on the same material terms and conditions
( i.e., an offer having financial terms with a net present value (when calculated in a
manner consistent with the calculation of the proposed Rental rate), including the term thereof, of
not more than 7.5% more favorable to the Subtenant or Assignee than the financial terms set forth
in the revised Sublease or Assignment Statement) set forth in the Sublease or Assignment Statement,
subject to the terms and conditions of this Lease, including paragraph (A) of this Section
15.4. If Tenant shall not enter into a sublease or assignment having the same material terms
and conditions as defined above within two hundred seventy (270) days after the delivery of the
Sublease or Assignment Statement, then the provisions of this Section 15.4 shall again be
applicable to any other proposed subletting or assignment. If pursuant to the exercise of any of
Landlord’s options pursuant to this Section 15.4, this Lease is terminated as to only a
portion of the Premises, then the Fixed Rent and Escalation Rent shall be adjusted in proportion to
the portion of the Premises affected by such termination. If Landlord shall fail to respond to
Tenant within the specified time period, Landlord shall be deemed to have waived its recapture
right as to such proposed transaction, provided Tenant has sent Landlord a second request for
approval containing the following language in eighteen-point print and Landlord shall again have
failed to respond within the time period set forth therein: “THIS IS A SECOND REQUEST
FOR APPROVAL
OF THE PROPOSED [ASSIGNMENT] OR [SUBLETTING]. IF LANDLORD DOES NOT RESPOND TO THIS REQUEST WITHIN
FIVE (5) BUSINESS DAYS, LANDLORD’S APPROVAL SHALL BE DEEMED GRANTED PURSUANT TO THE PROVISIONS OF
THIS LEASE.”


          (C) (1) If Landlord shall exercise its option to sublet the Recapture Space, then,
notwithstanding the terms contained in the Sublease or Assignment Statement, such 


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sublease (a
“Recapture Sublease”) to Landlord or its designee as
subtenant (the “Recapture
Subtenant”) or assignee shall:



                         (i) be at a rate, at all times throughout the term of the Recapture Sublease, equal to (if
Tenant had proposed to sublet the Premises) the lower of (i) the rate then payable by Tenant under
this Lease and (ii) the rate set forth in the Sublease or Assignment Statement;



                         (ii) otherwise be upon the same terms and conditions as those contained in the Sublease or
Assignment Statement (other than, in the case of an assignment, payment of consideration therefor
to Tenant) and (except as modified by the Sublease or Assignment Statement) the terms and
conditions contained in this Lease, except such as are irrelevant or inapplicable and except as
otherwise expressly set forth to the contrary in this paragraph (C);



                         (iii) give the Recapture Subtenant the unqualified and unrestricted right, without Tenant’s
permission, to assign such sublease and to further sublet the Recapture Space or any part thereof
and to make any and all changes, alterations, and improvements in and to the Recapture Space,
provided Tenant shall not be obligated to remove or insure such changes, alterations or
improvements;



                         (iv) provide in substance that any such changes, alterations, and improvements made in the
Recapture Space may be removed, in whole or in part, prior to or upon the expiration or other
termination of the Recapture Sublease provided that any material damage and injury caused thereby
shall be repaired;



                         (v) provide that (i) the parties to such Recapture Sublease expressly negate any intention
that any estate created under the Recapture Sublease be merged with any estate held by either of
said parties, (ii) prior to the commencement of the term of the Recapture Sublease, Tenant, at its
expense, shall make such alterations as may be required or reasonably deemed necessary by the
Recapture Subtenant to physically separate the Recapture Space from the balance of the Premises and
to provide appropriate means of access thereto and to the public portions of the balance of the
floor such as toilets, janitor’s closets, telephone and electrical closets, fire stairs, elevator
lobbies, etc., unless in the Sublease or Assignment Statement the subtenant assumed such obligation
in which case the Recapture Subtenant shall perform such work at its expense and (iii) at the
expiration of the term of such Recapture Sublease, Tenant will accept the Recapture Space in its
then existing condition, broom clean; and



                         (vi) provide that the Recapture Subtenant or occupant shall use and occupy the Recapture Space
for any purpose approved by Landlord (without regard to any limitation set forth in the Sublease or
Assignment Statement).


          (2) Until the termination of a Recapture Sublease, performance by Recapture Subtenant under a
Recapture Sublease shall be deemed performance by Tenant of any similar obligation under this Lease
and Tenant shall not be liable for any acts or omissions of Recapture Subtenant, including without
limitation, any default under this Lease or deemed to be in default hereunder if such default is
occasioned by or arises from any act or omission of 


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Recapture Subtenant under the Recapture
Sublease or is occasioned by or arises from any act or omission of any occupant under the Recapture
Sublease. Tenant shall not be liable for any claims, losses or liabilities of any kind or nature
(other than a potential difference in Rental) arising from Recapture Subtenant’s use and occupancy
of the Recapture Space.



                         (3) If Recapture Subtenant is unable to give Tenant possession of the Recapture Space at the
expiration of the term of the Recapture Sublease by reason of the holding over or retention of
possession of any tenant or other occupant, then (w) until the date upon which Recapture Subtenant
gives Tenant possession of such Recapture Space free of occupancies, Recapture Subtenant shall
continue to pay all charges previously payable, and comply with all other obligations under the
Recapture Sublease and the provisions of Section 15.4(C)(2) shall continue to apply, (x)
neither the Fixed Expiration Date nor the validity of this Lease shall be affected, (y) Tenant
waives any rights under Section 223-a of the Real Property Law of New York, or any successor
statute of similar import, to rescind this Lease and further waives the right to recover any
damages from Landlord or Recapture Subtenant that may result from the failure of Landlord to
deliver possession of the Recapture Space at the end of the term of the Recapture Sublease, and (z)
Recapture Subtenant, at Recapture Subtenant’s expense, shall use its reasonable efforts to deliver
possession of such Recapture Space to Tenant and in connection therewith, if necessary, shall
institute and diligently and in good faith prosecute holdover and any other appropriate proceeding
against the occupant of such Recapture Space.



                         (4) The failure by Landlord to exercise its option under Section 15.4(B)(x) or
(y) with respect to any subletting or assignment shall not be deemed a waiver of such
option with respect to any extension of such subletting or assignment or any subsequent subletting
or assignment.


          (D) Upon obtaining a proposed assignee or subtenant, upon terms satisfactory to Tenant, Tenant
shall submit to Landlord in writing (i) the name and business address of the proposed assignee or
subtenant; (ii) in the case of a sublease, a description of the portion of the Premises to be
sublet; (iii) the terms and conditions of the proposed assignment or subletting, including the
Sublease Rent or consideration payable for the assignment; (iv) the nature of the business and
credit of the proposed assignee or subtenant, and (v) any other information that Landlord may
reasonably request. If the term of or the financial terms of such subletting or assignment are more
favorable to the subtenant or the assignee by more than 7.5% than those set forth in the applicable
Assignment or Sublease Statement, Landlord shall have the further option, to be exercised within 10
Business Days from submission of the information and documents referred to in the preceding
sentence, to sublet (in its own name or that of its designee) the Recapture Space from Tenant on
the same terms and conditions of such proposed assignment or subletting, subject to the further
provisions of paragraph (C) of this Section 15.4, or in the case of an assignment, the additional
right to terminate this Lease.


          (E) Tenant shall deliver to Landlord, within five (5) Business Days after execution thereof by
Tenant, but no later than the effective date of the contemplated sublease or assignment, an
original counterpart of any executed sublease or instrument of assignment, together with (i)
Tenant’s affidavit that such sublease or assignment instrument is the true and complete statement
of the subletting or assignment and reflects all sums and other consideration passing between the
parties to the sublease or assignment and (ii) all reports, returns, transferor 


40









 






and transferee
questionnaires and other documents required to be filed under Article 31 of the New York State Tax
Law and under Chapter 21 of the New York City Administrative Code.



     Section 15.5. If Tenant sublets any portion of the Premises to a Person in a transaction for
which Landlord’s consent is required, Landlord shall be entitled to and Tenant shall pay to
Landlord, as Additional Rent (the “Sublease Additional Rent”), a sum equal to fifty (50%)
percent of any rents, additional charges and other consideration payable under the sublease to
Tenant by the subtenant in excess of the Fixed Rent and Escalation Rent accruing during the term of
the sublease in respect of the subleased space (at the rate per square foot payable by Tenant under
this Lease) pursuant to the terms of this Lease (including, but not limited to, sums paid for the
sale or rental of Tenant’s Property and Alterations less, in the case of a sale thereof,
the then net unamortized or undepreciated cost thereof determined on the basis of Tenant’s federal
income tax or federal information returns) and after deducting from any rents, additional charges
and other consideration payable under the sublease to Tenant the actual out-of-pocket expenses
reasonably incurred by Tenant in connection with such sublease on account of brokerage commissions,
advertising expenses, legal fees, work contributions and the cost of work performed by Tenant to
prepare the Premises for the subtenant’s occupancy. Such Sublease Additional Rent shall be payable
as and when received by Tenant.



     Section 15.6. If Tenant shall assign this Lease to a Person in a transaction for which
Landlord’s consent is required, Landlord shall be entitled to and Tenant shall pay to Landlord, as
Additional Rent, an amount equal to fifty (50%) percent of all sums and other consideration
paid to Tenant by the assignee for or by reason of such assignment (including, but not limited to,
sums paid for the sale or rental of Tenant’s Property and Alterations less, in the case of
a sale thereof, the then net unamortized or undepreciated cost thereof determined on the basis of
Tenant’s federal income tax or federal information returns) after deducting from any sums and other
consideration paid to Tenant by the assignee the actual out-of-pocket expenses reasonably incurred
by Tenant in connection with such assignment on account of brokerage commissions, advertising
expenses, legal fees, work contributions and the cost of work performed by Tenant to prepare the
Premises for the assignee’s occupancy. Such Additional Rent shall be payable as and when received
by Tenant from the assignee.



     Section 15.7. Landlord shall have no liability for brokerage commissions incurred with respect
to any assignment of this Lease or any subletting of all or any part of the Premises by or on
behalf of Tenant. Tenant shall pay, and shall indemnify and hold Landlord harmless from and
against, any and all cost, expense (including reasonable attorneys’ fees and disbursements) and
liability in connection with any compensation, commissions or charges claimed by any broker or
agent with respect to any such assignment or subletting.



ARTICLE 16



ACCESS TO PREMISES




     Section 16.1.


          (A) Tenant shall permit Landlord, Landlord’s agents and public utilities servicing the
Building to erect, use and maintain concealed ducts, pipes and conduits in and 


41









 






through the
Premises. Landlord or Landlord’s agents shall have the right to enter the Premises at all
reasonable times upon (except in case of emergency) reasonable prior notice, which notice may be
oral, to examine the same, to show the same to prospective purchasers, Mortgagees or lessees of the
Building or space therein, or to make such repairs, alterations, improvements or additions (i) as
may be required in connection with Landlord’s Work, (ii) as Landlord may deem necessary or
desirable to the Premises or to any other portion of the Building, or (iii) which Landlord may
elect to perform at least ten (10) days after notice (except in an emergency when no notice shall
be required) following Tenant’s failure to make repairs or perform any work which Tenant is
obligated to make or perform under this Lease, or (iv) for the purpose of complying with
Requirements, and Landlord shall be allowed to take all material into and upon the Premises that
may be required therefor without the same constituting an eviction or constructive eviction of
Tenant in whole or in part and the Fixed Rent (and any other item of Rental) shall in no respect
abate or be reduced by reason of said repairs, alterations, improvements or additions, wherever
located, or while the same are being made, by reason of loss or interruption of business of Tenant,
or otherwise. Landlord shall promptly repair any damage caused to the Premises by such work,
alterations, improvements or additions.


          (B) Any work performed or installations made pursuant to this Article 16 shall be made
with reasonable diligence and otherwise pursuant to Section 7.3.


          (C) Any pipes, ducts, or conduits installed in or through the Premises pursuant to this
Article 16 shall, if reasonably practicable, either be concealed behind, beneath or within
partitioning, columns, ceilings or floors located or to be located in the Premises, or completely
furred at points immediately adjacent to partitioning, columns or ceilings located or to be located
in the Premises so as not to reduce the usable area or change the layout of the Premises by more
than a de minimis amount.



     Section 16.2. If Tenant is not present when for any reason entry into the Premises may be
necessary or permissible, Landlord or Landlord’s agents may enter the same without rendering
Landlord or such agents liable therefor (if during such entry Landlord or Landlord’s agents accord
reasonable care to Tenant’s Property), and without in any manner affecting this Lease.



     Section 16.3. Landlord also shall have the right at any time, without the same constituting an
actual or constructive eviction and without incurring any liability to Tenant therefor, to change
the arrangement or location of entrances or passageways, doors and doorways, and corridors,
elevators, stairs, toilets or other public parts of the Building, provided any such change does not
unreasonably interfere with, or deprive Tenant of access to or use of, the Building or the
Premises; to put so-called “solar film” or other energy-saving installations on the inside and
outside of the windows; and to change the name, number or designation by which the Building is
commonly known. All parts (except surfaces facing the interior of the Premises) of all walls,
windows and doors bounding the Premises (including exterior Building walls, exterior core corridor
walls, exterior doors and entrances), all balconies, terraces and roofs adjacent to the Premises,
all space in or adjacent to the Premises used for shafts, stacks, stairways, chutes, pipes,
conduits, ducts, fan rooms, heating, air cooling, plumbing and other mechanical facilities, service
closets and other Building facilities are not part of the Premises,



42









 




and Landlord shall have the use
thereof, as well as access thereto through the Premises for the purposes of inspection, operation,
maintenance, alteration and repair.



ARTICLE 17



CERTIFICATE OF OCCUPANCY




     Section 17.1. Tenant shall not at any time use or occupy the Premises in violation of the
certificate of occupancy at such time issued for the Premises or for the Building. Without
limiting the generality of the foregoing, Tenant shall be entitled to use the Premises to
accommodate a proportionate share of the total number of persons permitted by the certificate of
occupancy to occupy the floor of the Building on which the Premises is located, based upon the
ratio that the rentable square footage of the Premises bears to the total rentable square footage
on such floor of the Building. In the event that any Government Authority hereafter contends or
declares by notice, violation, order or in any other manner whatsoever that the Premises are used
for a purpose that is a violation of such certificate of occupancy, Tenant shall, upon three (3)
Business Days written notice from Landlord or any Government Authority, immediately discontinue
such use of the Premises; provided, however, that nothing herein shall prevent Tenant from
contesting such violation pursuant to and in accordance with the provisions of
Section 9.5. Annexed to this Lease as Schedule F is a copy of the certificate
of occupancy issued with respect to the Building. Landlord shall not amend the certificate of
occupancy during the Term to preclude office use.



ARTICLE 18



DEFAULT




     Section 18.1. Each of the following events shall be an “Event of Default” under this
Lease:


          (A) if Tenant shall on any occasion default in the payment when due of any installment of
Fixed Rent or in the payment when due of any other item of Rental and such default shall continue
for five (5) Business Days after Landlord shall have given Tenant written notice of such default;
or


          (B) Intentionally Omitted;


          (C) if prior to the Commencement Date, the Sublease shall be terminated due to the default of
Tenant; or


          (D) if the Premises shall become abandoned; or


          (E) if Tenant’s interest in this Lease shall devolve upon or pass to any person, whether by
operation of law or otherwise, except as expressly permitted under Article 15 hereof; or



43









 









          (F) (1) if Tenant shall not, or shall be unable to, or shall admit in writing Tenant’s
inability to, as to any obligation, pay Tenant’s debts as they become due; or



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



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



               (4) if any case, proceeding or other action shall be commenced or instituted against Tenant
(a) seeking to have an order for relief entered against Tenant as debtor or to adjudicate Tenant a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to
Tenant or Tenant’s debts under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, or (b) seeking
appointment of a receiver, trustee, custodian or other similar official for Tenant or for all or
any substantial part of Tenant’s property, which either (i) results in any such entry of an order
for relief, adjudication of bankruptcy or insolvency or such an appointment or the issuance or
entry of any other order having a similar effect or (ii) remains undismissed for a period of sixty
(60) days; or



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



               (6) if Tenant rejects this Lease in connection with any action or proceeding under the
Bankruptcy Code; or


          (G) if Tenant shall default in the observance or performance of any other term, covenant or
condition of this Lease on Tenant’s part to be observed or performed and Tenant shall fail to
remedy such default within thirty (30) days after notice by Landlord to Tenant of such default, or
if such default is of such a nature that it cannot with due diligence be completely remedied within
said period of thirty (30) days and the continuation of which for the period required for cure will
not subject Landlord to the risk of criminal liability or termination of any Superior Lease or
foreclosure of any Mortgage, if Tenant shall not, (i) within said thirty (30) day period advise
Landlord of Tenant’s intention duly to institute all steps necessary to remedy such situation,
(ii) duly institute within said thirty (30) day period, and thereafter diligently and continuously
prosecute to completion all steps necessary to remedy the same and (iii) complete such remedy
within such time after the date of the giving of said notice by Landlord as shall reasonably be
necessary.


44









 








     Section 18.2. If an Event of Default shall occur, Landlord may, at any time thereafter, at
Landlord’s option, give written notice to Tenant stating that this Lease and the Term shall expire
and terminate on the date specified in such notice, which date shall not be less than five (5) days
after the giving of such notice, whereupon this Lease and the Term and all rights of Tenant under
this Lease shall automatically expire and terminate as if the date specified in the notice given
pursuant to this Section 18.2 were the Fixed Expiration Date and Tenant immediately shall
quit and surrender the Premises, but Tenant shall remain liable for damages as provided herein or
pursuant to law. Anything contained herein to the contrary notwithstanding, if such termination
shall be stayed by order of any court having jurisdiction over any proceeding described in
Section 18.1(F), or by federal or state statute, then, following the expiration of any such
stay, or if the trustee appointed in any such proceeding, Tenant or Tenant as debtor-in-possession
fails to assume Tenant’s obligations under this Lease within the period prescribed therefor by law
or within one hundred twenty (120) days after entry of the order for relief or as may be allowed
by the court, or if said trustee, Tenant or Tenant as debtor-in-possession shall fail to provide
adequate protection of Landlord’s right, title and interest in and to the Premises or adequate
assurance of the complete and continuous future performance of Tenant’s obligations under this
Lease, Landlord, to the extent permitted by law or by leave of the court having jurisdiction over
such proceeding, shall have the right, at its election, to terminate this Lease on five (5) days’
notice to Tenant, Tenant as debtor-in-possession or said trustee and upon the expiration of said
five (5) day period this Lease shall cease and expire as aforesaid and Tenant, Tenant as
debtor-in-possession or said trustee shall immediately quit and surrender the Premises as
aforesaid.



     Section 18.3. If, at any time, (i) Tenant shall consist of two (2) or more entities, or
(ii) Tenant’s obligations under this Lease shall have been guaranteed by any person other than
Tenant or (iii) Tenant’s interest in this Lease has been assigned, the word “Tenant” as used in
Section 18.1(F), shall be deemed to mean any one or more of the persons primarily or
secondarily liable for Tenant’s obligations under this Lease. Any monies received by Landlord from
or on behalf of Tenant during the pendency of any proceeding of the types referred to in
Section 18.1(F) shall be deemed paid as compensation for the use and occupancy of the
Premises and the acceptance of any such compensation by Landlord shall not be deemed an acceptance
of Rental or a waiver on the part of Landlord of any rights under Section 18.2.



ARTICLE 19



REMEDIES AND DAMAGES




     Section 19.1.


          (A) If any Event of Default shall occur, or this Lease and the Term shall expire and come to
an end as provided in Article 18:



                         (1) Tenant shall quit and peacefully surrender the Premises to Landlord, and Landlord and its
agents may immediately, or at any time after such Event of Default or after the date upon which
this Lease and the Term shall expire and come to an end, re-enter the Premises or any part thereof,
without notice, either by summary proceedings, or by any other applicable action or proceeding or
otherwise (without being liable to indictment, prosecution or damages therefor), but excluding by
force, and may repossess the Premises and



45









 




dispossess Tenant and any other persons from the Premises
by summary proceedings or otherwise (excluding by force) and remove any and all of their property
and effects from the Premises (and Tenant shall remain liable for damages as provided herein or
pursuant to law); and


          (2) Landlord, at Landlord’s option, may relet the whole or any part or parts of the Premises
from time to time, either in the name of Landlord or otherwise, to such tenant or tenants, for such
term or terms ending before, on or after the Fixed Expiration Date, at such rent or rentals and
upon such other conditions, which may include concessions and free rent periods, as Landlord, in
Landlord’s sole discretion, may determine; provided, however, that Landlord shall have no
obligation to relet the Premises or any part thereof and shall in no event be liable for refusal or
failure to relet the Premises or any part thereof, or, in the event of any such reletting, for
refusal or failure to collect any rent due upon any such reletting, and no such refusal or failure
shall operate to relieve Tenant of any liability under this Lease or otherwise affect any such
liability, and Landlord, at Landlord’s option, may make such Alterations, in and to the Premises as
Landlord, in Landlord’s sole discretion, shall consider advisable or necessary in connection with
any such reletting or proposed reletting, without relieving Tenant of any liability under this
Lease or otherwise affecting any such liability.


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



     Section 19.2.


          (A) If this Lease and the Term shall expire and come to an end as provided in Article
18, or by or under any summary proceeding or any other action or proceeding, or if Landlord
shall re-enter the Premises as provided in Section 19.1, or by or under any summary
proceeding or any other action or proceeding, then, in any of said events:



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



46









 





                         (2) Tenant also shall be liable for and shall pay to Landlord, as damages, any deficiency
(“Deficiency”) between the Rental for the period which otherwise would have constituted the
unexpired portion of the Term and the net amount, if any, of rents collected under any reletting
effected pursuant to the provisions of Section 19.1(A)(2) for any part of such period
(after first deducting from the rents collected under any such reletting all of Landlord’s expenses
in connection with the termination of this Lease, Landlord’s reentry upon the Premises and such
reletting including, but not limited to, all repossession costs, brokerage commissions, attorneys’
fees and disbursements, alteration costs and other expenses of preparing the Premises for such
reletting); any such Deficiency shall be paid in monthly installments by Tenant on the days
specified in this Lease for payment of installments of Fixed Rent; Landlord shall be entitled to
recover from Tenant each monthly Deficiency as the same shall arise, and no suit to collect the
amount of the Deficiency for any month shall prejudice Landlord’s right to collect the Deficiency
for any subsequent month by a similar proceeding; and



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


          (B) If the Premises, or any part thereof, shall be relet together with other space in the
Building, the rents collected or reserved under any such reletting and the expenses of any such
reletting shall be equitably apportioned for the purposes of this Section 19.2. Tenant
shall in no event be entitled to any rents collected or payable under any reletting, whether or not
such rents exceed the Fixed Rent reserved in this Lease. Solely for the purposes of this
Article 19, the term “Escalation Rent” as used in Section 19.2(A) shall mean the
Escalation Rent in effect immediately prior to the Fixed Expiration Date, or the date of re-entry
upon the Premises by Landlord, as the case may be, plus the scheduled Operating Expense Payment set
forth in Schedule C. Nothing contained in Article 18 or this Article 19
shall be deemed to limit or preclude the recovery by Landlord from Tenant of the maximum amount
allowed to be obtained as damages by any statute or rule of law, or of any sums or damages to which
Landlord may be entitled in addition to the damages set forth in this Section 19.2.



     Section 19.3. Notwithstanding anything to the contrary contained in this Lease, neither
Landlord nor Tenant shall be liable to any indemnitees for consequential damages under this Lease,
except with respect to Tenant’s liability under Section 22.3.



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ARTICLE 20



FEES AND EXPENSES




     Section 20.1. If (i) Tenant shall default under this Lease, or (ii) Tenant does or permits any
act or thing upon the Premises that would cause Landlord to be in default under any Superior Lease
or Mortgage and Tenant does not cure such act or thing within fifteen (15) days (or such shorter
period as Landlord may be permitted pursuant to any Superior Lease or Mortgage) after notice
thereof, or (iii) Tenant fails to comply with its obligations under this Lease and the preservation
of property or the safety of any tenant, occupant or other person is threatened, Landlord may
(1) perform the same for the account of Tenant, or (2) make any expenditure or incur any obligation
for the payment of money in connection with any obligation owed to Landlord, including, but not
limited to, reasonable attorneys’ fees and disbursements in instituting, prosecuting or defending
any action or proceeding, and in either case the cost thereof, with interest thereon at the
Applicable Rate, shall be deemed to be Additional Rent hereunder and shall be paid by Tenant to
Landlord within ten (10) days after rendition of any bill or statement to Tenant therefor. In
addition, Tenant shall pay Landlord any reasonable attorneys’ fees and disbursements incurred by
Landlord in connection with any proceeding in which the
value for the use and occupancy of the Premises by Tenant is being determined (to the extent
such proceeding results from a default by Tenant under this Lease).



     Section 20.2. If Tenant shall fail to pay any installment of Fixed Rent, Additional Rent or
any other item of Rental for a period longer than five (5) Business Days after the same shall have
become due, Tenant shall pay to Landlord, in addition to such installment of Fixed Rent, Additional
Rent or other item of Rental, as the case may be, as a late charge and as Additional Rent, a sum
equal to three (3%) percent of the amount unpaid. Notwithstanding the foregoing, in the first
instance only during each twelve (12) consecutive month period during the Term, no late charge
shall be payable unless and until the applicable payment is not paid within five (5) Business Days
after the date that Landlord gives Tenant notice that Tenant has failed to make such payment. If
Tenant shall fail to pay any installment of Fixed Rent, Additional Rent or any other item of Rental
for a period longer than ten (10) days after the same shall have become due, Tenant shall pay to
Landlord, in addition to such installment of Fixed Rent, Additional Rent or other item of Rental,
as the case may be, and in addition to the late charge payable by Tenant pursuant to the preceding
sentence, as a late charge and as Additional Rent, a sum equal to interest at the Applicable Rate
on the amount unpaid. All late charges payable by Tenant hereunder shall be computed from the date
such payment was due (without regard to any grace period set forth in this Section 20.2),
to and including the date of payment.



ARTICLE 21



NO REPRESENTATIONS BY LANDLORD




     Section 21.1. Landlord and Landlord’s agents have made no representations, warranties or
promises with respect to the Building, the Real Property or the Premises except as herein expressly
set forth, and no rights, easements or licenses are acquired by Tenant by implication or otherwise
except as expressly set forth herein. Tenant shall be in possession of the Premises on the
Commencement Date. Accordingly, Tenant shall accept possession of the Premises in its “as



48









 





is”
condition on the Commencement Date. Other than Landlord’s Work (which Landlord shall perform prior
to the Commencement Date in accordance with Article 38), Landlord shall have no obligation
to perform any work or make any installations in order to prepare the Premises for Tenant’s
occupancy. The continued occupancy of the whole or any part of the Premises by Tenant shall be
conclusive evidence, as against Tenant, that Tenant accepts possession of the same and that the
Premises were in good and satisfactory condition at the time such occupancy was so taken and that
the Premises were substantially as shown hatched on Schedule A. The foregoing is not
intended to relieve Landlord from its repair and compliance with Law obligations under this Lease.
All references in this Lease to the consent or approval of Landlord shall be deemed to mean the
written consent or approval executed by Landlord and no other consent or approval of Landlord shall
be effective for any purpose whatsoever.



ARTICLE 22



END OF TERM




     Section 22.1. Upon the expiration or other termination of this Lease, Tenant shall quit and
surrender to Landlord the Premises, vacant, broom clean, in good order and condition, ordinary wear
and tear excepted, and Tenant shall remove all of Tenant’s Specialty Alterations as may be required
pursuant to Article 6. Tenant shall also remove all of Tenant’s Property and all other
personal property and personal effects of all persons claiming through or under Tenant, and shall
pay the cost of repairing all damage to the Premises and the Real Property occasioned by such
removal. Any Tenant’s Property or other personal property that remains in the Premises after the
termination of this Lease shall be deemed to have been abandoned and either may be retained by
Landlord as its property or may be disposed of in such manner as Landlord may see fit. If such
Tenant’s Property or other personal property or any part thereof is sold, Landlord may receive and
retain the proceeds of such sale as the property of Landlord. Any expense incurred by Landlord in
removing or disposing of such Tenant’s Property or other personal property or Alterations required
to be removed as provided in Article 6, as well as the cost of repairing all damage to the
Building or the Premises caused by such removal, shall be reimbursed to Landlord by Tenant, as
Additional Rent, on demand.



     Section 22.2. If the Fixed Expiration Date falls on a day which is not a Business Day, then
Tenant’s obligations under Section 22.1 shall be performed on or prior to the immediately
preceding Business Day.



     Section 22.3. If the Premises are not surrendered within 60 days after the expiration or other
termination of this Lease, Tenant hereby indemnifies Landlord against liability or expense
(including any consequential damages) resulting from delay by Tenant in so surrendering the
Premises, including any claims made by any succeeding tenant or prospective tenant founded upon
such delay and agrees to be liable to Landlord for (i) any payment or rent concession which
Landlord may be required to make to any tenant obtained by Landlord for all or any part of the
Premises in order to induce such tenant not to terminate its lease by reason of the holding-over by
Tenant and (ii) the loss of the benefit of the bargain if any such tenant shall terminate its lease
by reason of the holding-over by Tenant. Landlord’s rights under this Section 22.3 are in
addition to the holdover rental payable by Tenant under Section 39.7.



49









 






     Section 22.4. Tenant expressly waives, for itself and for any person claiming through or under
Tenant, any rights that Tenant or any such person may have under the provisions of Section
2201 of the New York Civil Practice Law and Rules and of any similar or successor law of like
import then in force in connection with any holdover proceedings that Landlord may institute to
enforce the provisions of this Article.



     Section 22.5. Tenant’s obligations under this Article shall survive the expiration or
termination of this Lease.







ARTICLE 23




INTENTIONALLY OMITTED




ARTICLE 24




NO WAIVER




     
Section 24.1. No act or thing done by Landlord or Landlord’s agents during the Term shall be

 deemed an acceptance of a surrender of the Premises, and no agreement to accept such surrender
shall be valid unless in writing signed by Landlord. No employee of Landlord or of Landlord’s
agents shall have any power to accept the keys to the Premises prior to the termination of this
Lease. The delivery of keys to any employee of Landlord or of Landlord’s agents shall not operate
as a termination of this Lease or a surrender of the Premises. If Tenant shall at any time desire
to have Landlord sublet the Premises for Tenant’s account, Landlord or Landlord’s agents are
authorized to receive the keys for such purpose without releasing Tenant from any of the
obligations under this Lease, and Tenant hereby relieves Landlord of any liability for loss of or
damage to any of Tenant’s effects in connection with such subletting.



     Section 24.2. The failure of Landlord or Tenant to seek redress for violation of, or to insist
upon the strict performance of, any covenant or condition of this Lease, or as to Landlord, any of
the Rules and Regulations, shall not prevent a subsequent act, which would have originally
constituted a violation, from having all of the force and effect of an original violation. The
receipt by Landlord of Fixed Rent, Additional Rent or any other item of Rental with knowledge of
the breach of any covenant of this Lease shall not be deemed a waiver of such breach. The failure
of Landlord to enforce any of the Rules and Regulations against Tenant or any other tenant in the
Building shall not be deemed a waiver of any such Rules and Regulations. No provision of this
Lease shall be deemed to have been waived by Landlord, unless such waiver shall be in writing and
shall be signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than
the Rental then due and payable shall be deemed to be other than on account of the earliest item(s)
of Rental, or as Landlord may elect to apply the same, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord’s right to recover the
balance due of the Rental or pursue any other remedy in this Lease provided. This Lease (and the
Consent) contain the entire agreement between the parties and all prior negotiations and agreements
are merged herein. Any executory agreement hereafter made shall be ineffective to change,
discharge or effect an abandonment of



50









 




this Lease in whole or in part unless such executory
agreement is in writing and signed by the party against whom enforcement of the change, discharge
or abandonment is sought.



ARTICLE 25




WAIVER OF TRIAL BY JURY




     Section 25.1. Landlord and Tenant shall and they hereby do waive trial by jury in any action,
proceeding or counterclaim brought by either of them against the other on any matters whatsoever
arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant,
Tenant’s use or occupancy of the Premises, whether during or after the Term, or for the enforcement
of any remedy under any statute, emergency or otherwise. If Landlord shall commence any summary
proceeding against Tenant, Tenant will not interpose any counterclaim of whatever nature or
description in any such proceeding (unless failure to impose such counterclaim would preclude
Tenant from asserting in a separate action the claim which is the subject of such counterclaim),
and will not seek to consolidate such proceeding with any other action which may have been or will
be brought in any other court by Tenant or Landlord.



ARTICLE 26




INABILITY TO PERFORM




     Section 26.1. This Lease and the obligation of Tenant to pay Rental hereunder and to perform
all of the other covenants and agreements hereunder on the part of Tenant to be performed shall in
no way be affected, impaired or excused because Landlord is unable to fulfill any of Landlord’s
obligations under this Lease, expressly or implicitly to be performed by Landlord, or because
Landlord is unable to make or is delayed in making any repairs, additions, alterations,
improvements or decorations, or is unable to supply or is delayed in supplying any services,
equipment or fixtures, if Landlord is prevented from or delayed in so doing by reason of acts of
God, casualty, strikes or labor troubles, accident, acts of war, terrorism, bioterrorism
( i.e., the release or threatened release of an airborne agent that may adversely affect the
Building or its occupants), governmental preemption in connection with an emergency, Requirements,
conditions of supply and demand which have been or are affected by war, terrorism, bioterrorism or
other emergency, or any other cause whatsoever, whether similar or dissimilar to the foregoing,
beyond Landlord’s reasonable control (“Unavoidable Delays”).



ARTICLE 27




BILLS AND NOTICES




     Section 27.1.


          (A) Except as otherwise expressly provided in this Lease, any bills, statements, consents,
notices, demands, requests or other communications given or required to be given under this Lease
(“Notice(s)”) shall be in writing and shall be deemed sufficiently given or rendered if
delivered by hand (against a signed receipt), by a recognized overnight courier
service (with a signed receipt) or if deposited in a securely fastened, postage prepaid
envelope in


51









 






a depository that is regularly maintained by the U.S. Postal Service, sent by
registered or certified mail (return receipt requested) and in any case addressed:



     if to Tenant at Tenant’s address set forth on the first page of this Lease, Attention: General
Counsel, or at any place where Tenant or any agent or employee of Tenant may be found if given
subsequent to Tenant’s vacating, deserting, abandoning or surrendering such address, with
simultaneous copies as follows:




	 	(i)	 	Waterfront Media, Inc.

45 Main Street

Brooklyn, New York 11201

Attention: Chief Financial Officer






	 	 	 	and in the case of Notices of default:






	 	(ii)	 	Davis & Gilbert LLP

1740 Broadway

New York, New York 10019

Attention: Neal Klausner, Esq.







     if to Landlord, at Landlord’s address set forth in this
Lease, Attention: Senior Vice President of Commercial
Real Estate Leasing, with simultaneous copies to each of:




	 	(i)	 	The Rector Church-Wardens and Vestrymen of Trinity Church

in the City of New York

75 Varick Street, 2nd Floor

New York, New York 10013

Attention: General Counsel
	 
	 	(ii)	 	Loeb & Loeb LLP

345 Park Avenue

New York, New York 10154

Attention: Raymond A. Sanseverino, Esq.,
	 
	 	 	 	and
	 
	 	(iii)	 	any Mortgagee or Lessor who may have requested the same,
by Notice given in accordance with the provisions of this
Article 27, at the address designated by such Mortgagee or
Lessor.




          Landlord or Tenant may designate new address(es) by
notice given to the other in accordance with the
provisions of this Article 27.



52









 








          (B) Notices shall be deemed to have been rendered or given (i) on the Business Day delivered,
if delivered by hand or by recognized overnight courier service, prior to 5:00 p.m. of such
Business Day, or if delivered on a day other than a Business Day or after 5:00 p.m. on any day,
then on the next Business Day following such delivery, or (ii) three (3) Business Days after the
date mailed, if mailed as provided in Section 27.1(A). Notice given by counsel for either
party on behalf of such party or by the Manager on behalf of Landlord shall be deemed valid notices
if addressed and sent in accordance with the provisions of this Article.


     Section 27.2. Notwithstanding the provisions of Section 27.1, (i) Notices requesting
services for Overtime Periods pursuant to Article 28 may be given by delivery to the
Building superintendent or any other person in the Building designated by Landlord to receive such
Notices and (ii) bills may be rendered by delivering them to Tenant at the Premises without the
necessity of a receipt, and without providing a copy of Landlord’s Statements or bills to any other
party. At the end of the Term, Tenant shall advise Landlord of Tenant’s forwarding address.



ARTICLE 28



SERVICES AND EQUIPMENT




     Section 28.1. Landlord shall, at Landlord’s expense (except as otherwise noted below):


          (A) Provide passenger elevator service to the Premises on Business Days during Operating Hours
and, subject to Section 28.3, have one (1) passenger elevator on call at all other times.
Tenant agrees that Landlord may, at its election, install elevators with or without operators and
may change the same from time to time.


          (B) Provide non-exclusive access to the Building’s freight elevator(s) serving the Premises
(both during the Term and during construction of the Initial Alterations) on call on a “first come,
first served” basis on Business Days during Operating Hours without additional charge to Tenant;
and on a reservation, “first come, first served” basis from 6:00 p.m. to 8:00 a.m. on Business Days
and at any time on days other than Business Days (such periods, hereinafter “Overtime
Periods”), with a minimum block of four (4) consecutive hours to be reserved during such
Overtime Periods (to the extent that such minimum time period is required under the applicable
union contract(s) applicable to the Building) at Landlord’s standard rates, which amounts shall be
payable to Landlord as Additional Rent. Notwithstanding the foregoing, provided Tenant has
scheduled such use with Landlord, Tenant may use a freight elevator during Overtime Periods for
Tenant’s initial move into the Premises, and Landlord will waive the first $4,000 in such freight
elevator charges. Such use may occur during the term of the Sublease.


          (C) Provide non-exclusive access to the Building’s loading docks on a “first come, first
served” basis on Business Days during Operating Hours without additional charge; and on a
reservation, “first come, first served” basis during Overtime Periods.


          (D) Furnish to the Premises, through the HVAC System, during Operating Hours on Business Days
condenser water to operate the Building HVAC System serving the



53









 




Premises, from April 15 through October 15, and heat or ventilation (as needed) to heat the
Premises during the cold season; provided that Tenant shall draw and close the draperies or blinds
for the windows of the Premises whenever the ventilation or air-conditioning system is in operation
and the position of the sun so requires and shall, at all times, reasonably cooperate with Landlord
and abide by all of the Rules and Regulations which Landlord may reasonably prescribe for the
proper functioning of the HVAC System. The design of the air-conditioning equipment referred to in
Article 38 of this Lease is capable of operating in accordance with the following
specifications, subject to Tenant’s design of the Premises, including the duct work, and
distribution of such HVAC within the Premises:


          Outdoor Design Conditions


          Summer: 95oF DB and 75oF WB


          Winter: 10oF DB


          Interior Design Conditions


          Summer: 74oF DB (+/-2oF) max; no humidity control


          Winter: 72oF DB (+/-2oF); no humidity control


          Tenant expressly acknowledges that some or all windows are or may be hermetically sealed and
will not open and Landlord makes no representation as to the habitability of the Premises at any
time the HVAC System is not in operation. Tenant hereby expressly waives any claims against
Landlord arising out of the cessation of operation of the HVAC System, or the suitability of the
Premises when the same is not in operation, whether due to normal scheduling or the reasons set
forth in Section 28.3. Landlord will not be responsible for the failure of the HVAC System
if such failure results from the occupancy of the Premises by more than an average of one person
for each 100 square feet of usable area or if Tenant uses in excess of the electrical demand load
permitted under Article 4. If Tenant occupies the Premises at an occupancy rate of greater
than that for which the HVAC System was designed (1 person per 100 square feet of usable area), or
uses in excess of the electrical demand load permitted under Article 4, or if Tenant’s
partitions are arranged in such a way as to interfere with the normal operation of the HVAC System,
Landlord may elect to make changes to the HVAC System or the ducts through which it operates
required by reason thereof, and the cost thereof shall be reimbursed by Tenant to Landlord as
Additional Rent within thirty (30) days after presentation of a bill therefor. Subject to the
provisions of Article 16, Landlord, throughout the Term, shall have free access to all
mechanical installations of Landlord, including but not limited to air-cooling, fan, ventilating
and machine rooms and electrical closets, and Tenant shall not construct or place partitions,
furniture or other obstructions that may interfere with Landlord’s free access thereto or the
proper functioning of Building Systems, or interfere with the moving of Landlord’s equipment to and
from the enclosures containing said installations. Neither Tenant nor its agents, employees or
contractors shall at any time enter the said enclosures or tamper with, adjust, touch or otherwise
in any manner affect said mechanical installations. Landlord’s obligations under this Section
28.1 and under Section 28.2 are subject to applicable Laws that may limit the hours or
the extent to which Landlord is permitted to supply HVAC. The




54











 




foregoing provisions are not intended to be construed to relieve Landlord from liability to
Tenant resulting from Landlord’s negligence or willful misconduct.



          (E) Furnish cold water for ordinary drinking, cleaning and lavatory purposes and domestic hot
water to the core restrooms in the Premises. If Tenant requires, uses or consumes water for any
other purposes, Tenant agrees that Tenant shall install a meter or meters or other means to measure
Tenant’s water consumption, and Tenant further agrees to pay for the cost of the meter or meters
and the installation thereof, and to pay for the maintenance of said meter equipment and/or to pay
Landlord’s cost of other means of measuring such water consumption by Tenant. Tenant shall
reimburse Landlord for the cost of all water consumed in excess of customary office use (including
costs of generating hot water to Tenant’s equipment within the Premises, if applicable) as measured
by said meter or meters or as otherwise measured, including sewer rents, as Additional Rent within
ten (10) days after bills are rendered.



          (F) (i) Provided Tenant shall keep the Premises in order, cause the Premises, excluding any
portions thereof used as security areas or used as a separate room for the storage, preparation,
service or consumption of food or beverages, to be cleaned on Business Days in accordance with the
cleaning specifications annexed to this Lease as Schedule E. If, however, any additional
cleaning of the Premises is to be done by Tenant, it shall be done at Tenant’s sole expense, in a
manner reasonably satisfactory to Landlord and no one other than persons approved by Landlord shall
be permitted to enter the Premises or the Building for such purpose. Tenant shall pay to Landlord
the cost of removal of any of Tenant’s refuse and rubbish from the Premises and the Building (i) to
the extent that the same, in any one day, exceeds the average daily amount of refuse and rubbish
usually attendant upon the use of such Premises as offices, as described and included in Landlord’s
cleaning contract for the Building or recommended by Landlord’s cleaning contractor, and
(ii) related to or deriving from the preparation or consumption of food or drink. Bills for the
same shall be rendered by Landlord to Tenant at such time as Landlord may elect and shall be due
and payable as Additional Rent within ten (10) days after the time rendered. Tenant shall cause
all portions of the Premises used for the storage, preparation, service or consumption of food or
beverages to be cleaned daily in a manner reasonably satisfactory to Landlord, and to be treated
against infestation by vermin, rodents or roaches, whenever there is evidence of any infestation.
Tenant shall not permit any person to enter the Premises or the Building for the purpose of
providing such extermination services, unless such persons have been approved by Landlord.



               (ii) In addition to the requirements of Section 28.1(F)(i), Tenant shall, at its sole
cost and expense, comply with all Requirements with respect to the recycling or sorting of refuse
and rubbish, and, without limiting the generality of the foregoing, (a) shall recycle spent
products, including toner cartridges, copier drums and fluorescent tubes, and (b) shall provide
facilities in the premises for separate storage and recycling of each of the following: (x) paper
products and cardboard, (y) aluminum, glass and plastic, and (z) food wastes and so-called “wet
garbage”. Tenant shall arrange and require its employees working in the Premises to participate in
annual training regarding recycling and shall participate in Landlord-sponsored training programs
regarding recycling. Landlord reserves the right to refuse to collect or accept from Tenant any
refuse or rubbish which is not separated and sorted as required and to require Tenant to arrange
for such collection, at Tenant’s sole cost and expense, using a contractor reasonably satisfactory
to Landlord.



55









 








          (G) If the “sprinkler system” installed in the Building or any of its appurtenances are
damaged or injured or not in proper working order by reason of any act or omission of Tenant or of
Persons Within Tenant’s Control, Tenant shall forthwith restore the same to good working condition
at Tenant’s expense; and if the New York Board of Fire Underwriters or the New York Insurance
Rating Organization or any Government Authority requires or recommends that any changes,
modifications, alterations or additional sprinkler heads or other equipment be made or supplied by
reason of Tenant’s business, or the location of the partitions, trade fixtures, or other contents
of the Premises, Landlord shall, at Tenant’s expense, promptly make and supply such changes,
modifications, alterations, additional sprinkler heads or other equipment (pursuant to submission
of necessary engineering plans and specifications for Landlord’s approval).



          (H) Subject to the Rules and Regulations, Tenant shall have access to the Premises twenty-four
(24) hours per day seven (7) days per week.



     Section 28.2. In furtherance of and without limiting the provisions of Section 28.1(D)
hereof, the Fixed Rent does not reflect or include any charge to Tenant for the furnishing of HVAC
to the Premises during Overtime Periods. Accordingly, if Landlord furnishes HVAC to the Premises
at the request of Tenant during Overtime Periods, Tenant shall pay Landlord Additional Rent for
such services at Landlord’s standard rates. Landlord’s service charges as of the date of this
Lease are annexed hereto as Schedule I. Landlord shall not be required to furnish any such
services during any Overtime Periods unless Landlord has received advance notice from Tenant
requesting such services prior to 2:00 p.m. of the day upon which such services are requested or by
2:00 p.m. of the last preceding Business Day if such Overtime Periods are to occur on a day other
than a Business Day. If Tenant fails to give Landlord such advance notice, then failure by
Landlord to furnish or distribute any such services during such Overtime Periods shall not
constitute an actual or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of Rental, or relieve Tenant from any of its obligations under this Lease,
or impose any liability upon Landlord or its agents by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant’s business or otherwise.



     Section 28.3. (A) Landlord reserves the right to stop the furnishing of the Building services
and to stop service of the Building Systems, when necessary, by reason of accident, or emergency,
or for Alterations in the judgment of Landlord desirable or necessary to be made, until said
Alterations shall have been completed; and Landlord shall have no responsibility or liability for
failure to supply air-conditioning, ventilation, heat, elevator, plumbing, electric, or other
services during said period or when prevented from so doing by strikes, lockouts, labor troubles,
difficulty of obtaining materials, accidents or by any cause beyond Landlord’s reasonable control,
or by Requirements or failure of electricity, water, steam, coal, oil or other suitable fuel or
power supply, or inability by exercise of reasonable diligence to obtain electricity, water, steam,
coal, oil or other suitable fuel or power. No diminution or abatement of rent or other
compensation shall or will be claimed by Tenant as a result therefrom, nor shall this Lease or any
of the obligations of Tenant be affected or reduced by reason of such interruption, curtailment or
suspension, nor shall the same constitute an actual or constructive eviction. Without limiting
events that may constitute “any cause beyond Landlord’s reasonable control,” the following are
items which Landlord and Tenant agree are beyond Landlord’s reasonable control:



56









 








               (1) Lack of access to the Building or the Premises (which shall include, but not be limited
to, the lack of access to the Building or the Premises when it or they are structurally sound but
inaccessible due to evacuation of the surrounding area or damage to nearby structures or public
areas);



               (2) any cause outside the Building;



               (3) Reduced air quality or other contaminants within the Building that would adversely affect
the Building or its occupants (including, but not limited to, the presence of biological or other
airborne agents within the Building or the Premises);



               (4) Disruption of mail and deliveries to the Building or the Premises resulting from a
casualty;



               (5) Disruption of telephone and telecommunications services to the Building or the Premises
resulting from a casualty; or



               (6) Blockages of any windows, doors, or walkways to the Building or the Premises resulting
from a casualty.



          (B) If, without the fault or neglect of Tenant or any Persons Within Tenant’s Control, a
material portion of the Premises is rendered Untenantable for a period of five (5) consecutive
Business Days by reason of any stoppage or interruption of (i) any Landlord’s services referred to
in Sections 28.1(A) to ( F) above or (ii) any electricity to the Premises, due, in
any case referred to in the preceding clauses (i) and (ii), to Landlord’s repair or failure to
repair any Building facilities and systems or electrical risers that Landlord is required under
this Lease to repair and for reasons other than Unavoidable Delays and after Tenant shall have
given Landlord Notice of said event, then for the period commencing on the sixth (6th) consecutive
Business Day that such material portion of the Premises is Untenantable and Tenant shall have given
Landlord notice of the same, Fixed Rent and Escalation Rent shall be appropriately abated for so
much of the Premises as shall be so Untenantable. The abatement of Fixed Rent and Escalation Rent
under this Section 28.3(B) shall be Tenant’s sole remedy in the event such material portion
of the Premises is so rendered Untenantable. “Untenantable” means that Tenant shall be
unable to occupy, and shall not be occupying, the Premises or the applicable portion thereof.
Nothing contained in this Section 28.3(B) shall be deemed to grant Tenant any rent
abatement for an interruption or stoppage in electricity to the Premises arising by reason of any
cause emanating from outside the Building (including a failure by the electric service provider to
supply electricity to the Building). Further, nothing contained in this Section 28.3(B) is
intended to, or shall be deemed to, make any event described in or contemplated by Articles
13, 14 or 26 or Section 28.3(A)(1) to ( 6) a failure of Landlord
to provide any of Landlord’s services.



     Section 28.4. Tenant agrees to reasonably cooperate with Landlord, and to abide by all
reasonable requirements which Landlord may prescribe, to ensure the most effective and
energy-efficient operation of the Building, and for the proper protection and functioning of its
Building Systems and the furnishing of the Building services. Tenant further agrees to cooperate
with Landlord in any conservation effort pursuant to a program or procedure promulgated or
recommended by the public utility serving the Building, or ASHRAE or any Requirements.



57









 








     Section 28.5. Landlord shall have no obligation to clean, repair, replace or maintain any
“private” plumbing fixtures or facilities ( i.e., plumbing fixtures and facilities other
than those that would be the common toilets in a multi-tenant floor) or the rooms in which they are
located.



ARTICLE 29




PARTNERSHIP TENANT




     Section 29.1. If Tenant is a partnership, or is comprised of two (2) or more persons,
individually or as co-partners of a partnership (any such partnership and such persons are referred
to in this Article 29 as “Partnership Tenant”), or if Tenant’s interest in this
Lease shall be assigned to a Partnership Tenant, the following provisions shall apply to such
Partnership Tenant: (a) each of the parties comprising Partnership Tenant hereby consents in
advance to, and agrees to be bound by (i) any written agreement that may hereafter be executed by
Partnership Tenant or any successor entity, changing, extending or discharging this Lease, in whole
or in part, or surrendering all or any part of the Premises to Landlord, and (ii) any Notices that
may hereafter be given by Partnership Tenant or by any of the parties comprising Partnership
Tenant; and (b) any Notices given or rendered to Partnership Tenant or to any of such parties shall
be binding upon Partnership Tenant and all such parties.



ARTICLE 30




VAULT SPACE




     Section 30.1. Notwithstanding anything contained in this Lease or indicated on any sketch,
blueprint or plan, any vaults, vault space or other space outside the boundaries of the Real
Property are not included in the Premises. Landlord makes no representation as to the location of
the boundaries of the Real Property. All vaults and vault space and all other space outside the
boundaries of the Real Property which Tenant may be permitted to use or occupy are to be used or
occupied under a revocable license, and if any such license is revoked, or if the amount of such
space is diminished or required by any Government Authority or by any public utility company, such
revocation, diminution or requisition shall not constitute an actual or constructive eviction, in
whole or in part, or entitle Tenant to any abatement or diminution of Rental, or relieve Tenant
from any of its obligations under this Lease, or impose any liability upon Landlord. Any fee, tax
or charge imposed by any Government Authority for any such vaults, vault space or other space
occupied by Tenant shall be paid by Tenant.



ARTICLE 31




SIGNS




     Section 31.1. Tenant shall have the right to maintain identifying signage on the entrance door
to the Premises. Promptly following the commencement of the term of the Sublease, Landlord, at
Landlord’s cost, shall install directional signage in the elevator lobby on the
sixteenth (16th) floor of the Building. Notwithstanding the foregoing, the
location, size, materials, quality, design, color and lettering of any signs desired by Tenant
(whether or not contemplated by the preceding sentence) shall be subject to the prior approval of
Landlord



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(which shall not be unreasonably withheld) and shall be in compliance with the standards
set forth in the Building’s Rules and Regulations and Tenant Alteration Guidelines.



ARTICLE 32




BROKER




     Section 32.1. Landlord represents and warrants to Tenant that Landlord has not dealt with any
broker or Person in connection with this Lease other than the Broker. Tenant represents and
warrants to Landlord that Tenant has not dealt with any broker or Person in connection with this
Lease other than the Broker. The execution and delivery of this Lease shall be conclusive evidence
that the parties have relied upon the foregoing representation and warranty. Landlord and Tenant
shall indemnify and hold harmless the other party from and against any and all claims for
commission, fee or other compensation by any Person (other than the Broker with respect to Tenant’s
indemnity to Landlord) who claims to have dealt with the indemnitor in connection with this Lease
and for any and all costs incurred by the indemnitee in connection with such claims, including,
without limitation, attorneys’ fees and disbursements. Landlord shall pay Broker its commission
pursuant to separate agreement. This provision shall survive the expiration or earlier termination
of this Lease.



ARTICLE 33




INDEMNITY




     Section 33.1. Tenant shall indemnify and save harmless the Indemnitees from and against
(a) all third party claims of whatever nature against the Indemnitees arising from any act,
omission or negligence of Tenant or Persons Within Tenant’s Control, (b) all claims against the
Indemnitees arising from any accident, injury or damage whatsoever caused to any person or to the
property of any person and occurring in or about the Premises during the Term or during Tenant’s
occupancy of the Premises, unless and to the extent caused by the act, omission or negligence of
Landlord or its principals, officers and employees, (c) all claims against the Indemnitees arising
from any accident, injury or damage occurring outside of the Premises but anywhere within or about
the Real Property, where such accident, injury or damage results or is claimed to have resulted
from an act, omission or negligence of Tenant or Persons Within Tenant’s Control, and/or (d) any
breach, violation or non-performance of any covenant, condition or agreement contained in this
Lease to be fulfilled, kept, observed and performed by Tenant. This indemnity and hold harmless
agreement shall include indemnity from and against any and all liability, fines, suits, demands,
costs and expenses of any kind or nature (including, without limitation, reasonable attorneys’ fees
and disbursements) incurred in or in connection with any such claim or proceeding brought thereon,
and the defense thereof, and all collection
costs (including, without limitation, reasonable attorneys’ fees and disbursements) incurred
by Landlord in enforcing this indemnity provision against Tenant.



     Section 33.2. Except to the extent otherwise expressly limited in this Lease, Landlord shall
indemnify and save Tenant harmless from and against (a) all claims of whatever nature against
Tenant and its shareholders, officers, directors, employees, agents and contractors (“Tenant
Indemnitees”) arising from any willful misconduct or negligence of Landlord or its



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agents,
servants, contractors, licensees or employees, or the Manager, and/or (b) any breach, violation or
non-performance of any covenant, condition or agreement contained in this Lease to be fulfilled,
kept, observed and performed by Landlord. This indemnity and hold harmless agreement shall include
indemnity from and against any and all liability, fines, suits, demands, costs and expenses of any
kind of nature (including, without limitation, reasonable attorneys’ fees and disbursements)
incurred in or in connection with any such claims or proceeding brought thereon, and the defense
thereof, and all collection costs (including, without limitation, reasonable attorneys’ fees and
disbursements) incurred by Tenant in enforcing this indemnity provision against Landlord.



     Section 33.3. If any claim, action or proceeding is made or brought against any Indemnitee,
against which claim, action or proceeding Tenant is obligated to indemnify such Indemnitee pursuant
to the terms of this Lease, then, upon demand by the Indemnitee, Tenant, at its sole cost and
expense, shall resist or defend such claim, action or proceeding in the Indemnitee’s name, if
necessary, by such attorneys as the Indemnitee may select, including, without limitation, attorneys
for the Indemnitee’s insurer. The provisions of this Article 33 shall survive the
expiration or earlier termination of this Lease.



ARTICLE 34




ADJACENT EXCAVATION; SHORING




     Section 34.1. If an excavation shall be made upon land adjacent to the Building, or shall be
authorized to be made, Tenant shall, upon reasonable advance notice, afford to the person causing
or authorized to cause such excavation, license to enter upon the Premises for the purpose of doing
such work as said person shall deem necessary to preserve the walls of the Building from injury or
damage and to support the same by proper foundations without any claim for eviction or constructive
eviction, damages or indemnity against Landlord, or diminution or abatement of Rental, provided
that Tenant continues to have access to the Premises.



ARTICLE 35




SECURITY DEPOSIT




     Section 35.1. Tenant has deposited with Landlord on the signing of this Lease the Security
Deposit either by cash or by Letter of Credit (as defined and further described in Section
35.2), as security for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this Lease. Tenant agrees that in the event (i) of the occurrence of
an Event of Default or (ii) Tenant has defaulted in the performance of any of its obligations under
this Lease, including the payment of any item of Rental, and the transmittal of a Notice of default
by Landlord is barred by applicable law, Landlord may draw the applicable portion of the cash
Security Deposit or the entire amount of the Letter of Credit and use, apply or retain the whole or
any part of such proceeds, to the extent required for the payment of any Fixed Rent, Escalation
Rent, or any other sum as to which Tenant is in default, or for any sum that Landlord may expend or
may be required to expend by reason of the default (including any damages or deficiency accrued
before or after summary proceedings or other re-entry by Landlord). If



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Landlord applies or retains
any portion or all of the proceeds of the Security Deposit, Tenant shall forthwith restore the
amount so applied or retained by delivering additional cash or an additional or new Letter of
Credit so that, at all times, the amount of the Security Deposit shall be the amount set forth on
the Reference Page. Provided there is no uncured default upon the expiration or sooner termination
of this Lease, any balance of the Security Deposit held by Landlord and not used, applied or
retained by Landlord as above provided, and any remaining Letter of Credit, shall be returned to
Tenant within 30 days after the Fixed Expiration Date and after delivery of possession of the
entire Premises to Landlord in accordance with the terms of this Lease. If Tenant delivered a cash
Security Deposit upon execution hereof, Tenant may, at any time during the Term, substitute same
with a Letter of Credit.



     Section 35.2. Any Letter of Credit delivered by Tenant shall be a clean, irrevocable and
unconditional letter of credit (such letter of credit, and any replacement thereof as provided
herein, is called a “Letter of Credit”) issued and drawn upon any commercial bank
reasonably approved by Landlord (“Issuing Bank”), which Letter of Credit shall have a term
of not less than one year, be in form and content satisfactory to Landlord, be for the account of
Landlord and be in the amount of the Security Deposit set forth in the Reference Page. Any Issuing
Bank that has a combined capital, surplus and undivided profits of at least $500 million and a
financial strength rating of at least “A” and a long-term debt rating of at least “Aa”, as
published by Moody’s Investors Services, Inc., or its successor (collectively, the “Issuing
Bank Criteria”) is deemed approved. If at any time during the Term, the Issuing Bank does not
maintain the Issuing Bank Criteria, then Landlord may so notify Tenant and, unless Tenant delivers
a replacement Letter of Credit from another bank meeting the Issuing Bank Criteria within 30 days
after receipt of such notice, Landlord may draw the full amount of the Letter of Credit and hold
the proceeds as a cash security deposit in accordance with all Laws. The Letter of Credit shall
provide that:



          (A) The Issuing Bank shall pay to Landlord or its duly authorized representative an amount up
to the face amount of the Letter of Credit upon presentation of the Letter of Credit and a sight
draft in the amount to be drawn;



          (B) The Letter of Credit shall be deemed to be automatically renewed, without amendment, for
consecutive periods of one year each during the Term, unless the Issuing Bank sends written notice
(the “Non-Renewal Notice”) to Landlord by certified or registered mail, return receipt
requested, at least thirty (30) days prior to the expiration date of the Letter of Credit, to the
effect that it elects not to have such Letter of Credit renewed;



          (C) The Letter of Credit delivered in respect of the last year of the Term shall have an
expiration date of not earlier than sixty (60) days after the Fixed Expiration Date; and



          (D) The Letter of Credit shall be transferable by Landlord as provided in Section
35.4.



     Section 35.3. If Landlord receives a Non-Renewal Notice and Tenant fails to deliver a
replacement Letter of Credit within ten (10) days thereafter, Landlord shall have the right to draw
the entire amount of the Letter of Credit and to hold the proceeds as a cash Security Deposit.
Landlord shall release such proceeds to Tenant upon delivery to Landlord of a replacement Letter of
Credit complying with the terms hereof.



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     Section 35.4. In the event of the sale or lease of the Building or the Real Property, Landlord
shall have the right to transfer the Security Deposit on notice to Tenant, without charge for such
transfer, to the purchaser or lessee, and Landlord shall thereupon be released by Tenant from all
liability for the return of such Security Deposit. In such event, Tenant agrees to look solely to
the new Landlord for the return of said Security Deposit. It is agreed that the provisions hereof
shall apply to every transfer or assignment made of the Security Deposit to a new Landlord. Tenant
shall execute such documents as may be necessary to accomplish such transfer or assignment of the
Letter of Credit.



     Section 35.5. Tenant covenants that it will not assign or encumber, or attempt to assign or
encumber, the Security Deposit held hereunder, and that neither Landlord nor its successors or
assigns shall be bound by any such assignment, encumbrance, attempted assignment, or attempted
encumbrance. In the event that any bankruptcy, insolvency, reorganization or other debtor-creditor
proceedings shall be instituted by or against Tenant, its successors or assigns, or any guarantor
of Tenant hereunder, the security shall be deemed to be applied to the payment of the Fixed Rent
and Additional Rent due Landlord for periods prior to the institution of such proceedings and the
balance, if any, may be retained by Landlord in partial satisfaction of Landlord’s damages.



     Section 35.6. (A) Tenant has delivered a cash security deposit of $300,000 to CT under the
Sublease (the “CT Security”). Pursuant to the Consent, on or before the first day of
November in each of 2010, 2011, 2012 and 2013, CT shall deliver a portion of the CT Security equal
to $75,000 to Landlord, which amounts shall be included in the Security Deposit and shall be held
and disbursed by Landlord in accordance with this Article 35. If (i) Tenant defaults under
the Sublease, (ii) CT uses the CT Security on account of such default and (iii) CT does not deliver
the applicable portion of the CT Security to Landlord due to Tenant’s failure to replenish the CT
Security in accordance with the Sublease, such failure by Tenant shall constitute a default under
this Lease. Upon the Commencement Date, if Landlord has not received the entire $300,000 CT
Security due to Tenant’s default under the Sublease, Tenant shall be obligated to deliver to
Landlord any deficiency and Tenant’s failure to do so shall constitute a default under this Lease.



          (B) Provided that no Event of Default shall have occurred and be continuing, Tenant may reduce
the Security Deposit to the amount of $600,000 on November 1, 2014. Such reduction shall be
effected either by Landlord paying Tenant the amount of the cash Security
Deposit held by Landlord in excess of $600,000, on or before November 15, 2014, or if Landlord
is then holding a Letter of Credit, by Tenant exchanging a replacement Letter of Credit in the
reduced amount for the existing Letter of Credit, or by the Issuing Bank delivering an amendment to
the Letter of Credit reducing the amount thereof, which Landlord shall promptly countersign or
authorize in writing, if requested.



     Section 35.7. Any cash Security Deposit shall be deposited in a segregated interest bearing
account in a bank selected by Landlord and any interest earned on the Security Deposit, less than
1% per annum administrative fee (but not to exceed the actual interest thereon) which shall be
retained by Landlord, shall be added to the Security Deposit on Tenant’s behalf. Landlord makes no
representations regarding the rate of return that shall be earned on the Security Deposit.



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ARTICLE 36




RENT REGULATION




     Section 36.1. If at any time or times during the Term of this Lease, the Rental reserved in
this Lease is not fully collectible by reason of any Requirement, Tenant shall enter into such
agreements and take such other steps (without additional expense to Tenant) as Landlord may request
and as may be legally permissible to permit Landlord to collect the maximum rents that may from
time to time during the continuance of such legal rent restriction be legally permissible (and not
in excess of the amounts reserved under this Lease). Upon the termination of such legal rent
restriction (a) the Rental shall become and thereafter be payable hereunder in accordance with the
amounts reserved in this Lease for the remainder of the Term, and (b) Tenant shall pay to Landlord,
if legally permissible, an amount equal to (i) the items of Rental that would have been paid
pursuant to this Lease but for such legal rent restriction less (ii) the rents paid by Tenant to
Landlord during the period or periods such legal rent restriction was in effect. This provision
shall survive the expiration or earlier termination of this Lease to the maximum enforceable
extent.



ARTICLE 37




COVENANT OF QUIET ENJOYMENT




     Section 37.1. Landlord covenants that, upon Tenant paying the Fixed Rent and Additional Rent
and observing and performing all the terms, agreements, covenants, provisions and conditions of
this Lease on Tenant’s part to be observed and performed, Tenant may peaceably and quietly enjoy
the Premises, subject nevertheless to the terms and conditions of this Lease, and provided,
however, that no eviction of Tenant by reason of the foreclosure of any Mortgage now or hereafter
affecting the Premises or by reason of any termination of any Superior Lease to which this Lease is
subject and subordinate, whether such termination is effected by operation of law, by agreement or
otherwise, shall be construed as a breach of this covenant nor shall any action by reason thereof
be brought against Landlord, and provided
further that this covenant shall bind and be enforceable against Landlord or any successor to
Landlord’s interest, subject to the terms hereof, only so long as Landlord or any successor to
Landlord’s interest, is in possession and is collecting rent from Tenant but not thereafter.



ARTICLE 38




LANDLORD’S WORK




     Section 38.1. Landlord, at its expense, shall perform the following work (“Landlord’s
Work”):



          (A) (i) Remove a 15-ton air-cooled air-conditioning unit and enclosure from the north wall of
the Premises and replace the window louver with a Building-standard window; (ii) remove a 20-ton
water-cooled air-conditioning unit and enclosure on the east wall of the Premises; (iii) install a
new 40-ton water-cooled unit in the mechanical equipment room in the Premises, to enable Landlord
to provide the air-conditioning in accordance with the provisions of



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Section 28.1(D) of
this Lease; (iv) provide the supply and return duct within the mechanical room and through the wall
dampers with a “boot” extending to the exterior of the mechanical room for Tenant connections; and
(v) isolate the return opening in the wall above the existing café millwork so that it no longer
feeds return air from the adjoining space into the Premises. The new air-conditioning unit shall
exclusively serve the Premises. All associated duct work modifications outside of the mechanical
room for distribution necessary as a result of such work shall be performed by Tenant, at its
expense. All other existing base Building air-conditioning units serving the Premises shall be
refurbished by Landlord (other than the unit serving the server room in the Premises). Landlord
shall use commercially reasonable efforts to complete the foregoing work by January 31, 2010, as
such date shall be extended, on a day for day basis, for each day that this Lease is not fully
executed by August 31, 2009.



          (B) Upgrade the elevator corridor in the 16th floor of the Building after
consultation with Tenant, including as to one of Landlord’s Building-standard paint colors. The
carpeting in the corridor shall be substantially similar to the carpeting in the elevator corridor
on the 12th floor of the Building.



          Landlord shall perform such Landlord’s Work promptly after the date of this Lease but Tenant
acknowledges that Landlord’s Work shall not be completed prior to the commencement date of the term
of the Sublease. Landlord shall perform Landlord’s Work diligently and in a workmanlike manner in
accordance with Laws. Landlord and Tenant shall take commercially reasonable steps to coordinate
the performance of Landlord’s Work and the performance by Tenant of the Initial Alterations so that
neither party is delayed in the completion of its work. Landlord shall perform Landlord’s Work in
accordance with the provisions of Section 7.3.



ARTICLE 39




MISCELLANEOUS




     Section 39.1. This Lease is presented for signature by Tenant and it is understood that this
Lease shall not constitute an offer by or be binding upon Landlord or Tenant unless and until
Landlord and Tenant shall have executed and delivered a fully executed copy of this Lease to the
other.



     Section 39.2. The obligations of Landlord under this Lease shall not be binding upon Landlord
named herein after the sale, conveyance, assignment or transfer by such Landlord (or upon any
subsequent landlord after the sale, conveyance, assignment or transfer by such subsequent landlord)
of its interest in the Building or the Real Property, as the case may be, and in the event of any
such sale, conveyance, assignment or transfer, Landlord shall be and hereby is entirely freed and
relieved of all covenants and obligations of Landlord under this Lease thereafter arising, provided
the transferee shall assume or be deemed to have assumed (either expressly or by operation of law),
subject to the remaining provisions of this Section 39.2, all obligations of the Landlord
under this Lease arising after the effective date of the transfer. Landlord shall forward to
Tenant a copy of any written instrument pursuant to which the transferee assumed Landlord’s
prospective obligations under this Lease. No trustee, partner, shareholder, director, officer,
employee, or principal, direct or indirect, of Landlord,



64









 




(collectively, the “Parties”)
shall have any direct or personal liability for the performance of Landlord’s obligations under
this Lease, and Tenant shall look solely to Landlord’s Equity (as hereinafter defined) in the Real
Property (and the proceeds derived therefrom) to enforce Landlord’s obligations hereunder and shall
not otherwise seek any damages against Landlord personally or any of the Parties whatsoever.
“Landlord’s Equity” as used in the preceding sentence, shall mean the lesser of: (i) the
interest of Landlord in and to the Real Property and (ii) the interest that Landlord would have in
the Real Property if it were encumbered by an indebtedness held by a Person in an amount equal to
seventy five percent (75%) of the then-current fair market value of the Real Property (as such
value of such interest is determined in good faith by Landlord). Tenant shall not look to any
other property or assets of Landlord or any property or assets of any of the Parties in seeking
either to enforce Landlord’s obligations under this Lease or to satisfy a judgment for Landlord’s
failure to perform such obligations.



     Section 39.3. Notwithstanding anything contained in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of Landlord under this Lease, whether or not expressly
denominated Fixed Rent, Escalation Rent, Additional Rent or Rental, shall constitute rent for the
purposes of Section 502(b)(7) of the Bankruptcy Code.



     Section 39.4. Neither this Lease nor any memorandum of this Lease shall be recorded.



     Section 39.5. Except as otherwise expressly stated in this Lease, any consent or approval
required to be obtained from Landlord may be granted by Landlord in its sole discretion. In any
instance in which Landlord agrees not to act unreasonably, Tenant hereby waives any claim for
damages against or liability of Landlord that Tenant may have based upon any assertion that
Landlord has unreasonably withheld or unreasonably delayed any consent or approval requested
by Tenant, and Tenant agrees that its sole remedy shall be an action or proceeding to enforce
any related provision or for specific performance, injunction or declaratory judgment. If with
respect to any required consent or approval Landlord is required by the express provisions of this
Lease not to unreasonably withhold or delay its consent or approval, and if it is determined in any
such proceeding referred to in the preceding sentence that Landlord acted unreasonably, the
requested consent or approval shall be deemed to have been granted; however, Landlord shall have no
liability whatsoever to Tenant for its refusal or failure to give such consent or approval.
Tenant’s sole remedy for Landlord’s unreasonably withholding or delaying consent or approval shall
be as provided in this Section 39.5 and in Section 39.22.



     Section 39.6.



          (A) Tenant represents and warrants that to its actual knowledge (a) Tenant and each person or
entity owning an interest in Tenant is (i) not currently identified on the Specially Designated
Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, Department
of the Treasury (“OFAC”) and/or on any other similar list maintained by OFAC pursuant to
any authorizing statute, executive order or regulation (collectively, the “List”), and (ii)
not a person or entity with whom a citizen of the United States is prohibited to engage in
transactions by any trade embargo, economic sanction, or other prohibition of United States Laws,
regulation, or Executive Order of the President of the United States, (b) none of the funds of
Tenant have been derived from any unlawful activity with the result that the investment in Tenant
is prohibited by Laws or that this Lease is in violation of Laws, and (c) Tenant has



65









 




implemented
procedures, and will consistently apply those procedures, to ensure that the foregoing
representations and warranties remain true and correct at all times. The term “Embargoed
Person” means any person, entity or government subject to trade restrictions under U.S. law,
including but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §1701
et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any
Executive Orders or regulations promulgated thereunder with the result that the investment in
Tenant is prohibited by Laws or Tenant is in violation of Laws.



          (B) Tenant covenants and agrees (a) to comply with all Laws relating to money laundering,
anti-terrorism, trade embargos and economic sanctions, now or hereafter in effect, (b) to
immediately notify Landlord in writing if any of the representations, warranties or covenants set
forth in this paragraph or the preceding paragraph are no longer true or have been breached or if
Tenant has a reasonable basis to believe that they no may no longer be true or have been breached,
(c) not to use funds from any “Prohibited Person” (as such term is defined in the September
24, 2001 Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism) to make any payment due to Landlord under this Lease and
(d) at the request of Landlord, to provide such information as may be requested by Landlord to
determine Tenant’s compliance with the terms hereof.



          (C) Tenant hereby acknowledges and agrees that Tenant’s inclusion on the List at any time
during the Term shall be a material default of this Lease. Notwithstanding anything herein to the
contrary, Tenant shall not permit the Premises or any portion thereof to be used or occupied by any
person or entity on the List or by any Embargoed Person (on a permanent, temporary or transient
basis), and any such use or occupancy of the Premises by any such person or entity shall be a
material default of this Lease.



     In connection with this Lease or any proposed assignment of this Lease or sublease, Tenant
shall provide to Landlord the names of the persons holding an ownership interest in Tenant or any
proposed assignee or sublessee, as applicable, for purposes of compliance with Presidential
Executive Order 13224 (issued September 24, 2001), as amended.



     Section 39.7. If Tenant shall remain in possession of the Premises after the Fixed Expiration
Date, without the execution by both Tenant and Landlord of a new lease, Tenant, at the election of
Landlord, shall be deemed to be occupying the Premises as a Tenant from month-to-month, at a
monthly rental equal to one hundred fifty (150%) percent for the first 60 days and two hundred
(200%) percent thereafter, of the aggregate Fixed Rent and Additional Rent payable during the last
month of the Term, subject to all the other conditions, provisions and obligations of this Lease
insofar as the same are applicable to a month-to-month tenancy. The acceptance of any holdover
rental paid by Tenant pursuant to this Section 39.7 shall not preclude Landlord from
commencing and prosecuting a holdover or summary eviction proceeding.



     Section 39.8. This Lease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Lease to be drafted. If any words or phrases
in this Lease are stricken out or otherwise eliminated, whether or not any other words or phrases
have been added, this Lease shall be construed as if the words or phrases so stricken out or
otherwise eliminated were never included in this Lease and no implication or inference shall be
drawn from the fact that such words or phrases were stricken out or otherwise eliminated.



66









 





     Section 39.9. During the term of the Sublease and the Term of this Lease, Landlord shall make
available to Tenant in any Building directory maintained by Landlord in the lobby of the Building
(the “Directory”), Tenant’s Share of the total number of listings available, which listings
may include subtenants occupying the Premises in accordance with the terms hereof. The initial
listing shall be without charge to Tenant. From time to time, but not more frequently than once
every six (6) months, Landlord shall revise the Directory to reflect such changes in the listings
therein as Tenant may request, and Tenant within ten (10) days after demand by Landlord shall pay
to Landlord, as Additional Rent, Landlord’s administrative charge for each requested revision.



     Section 39.10. Reserved.



     Section 39.11. If any of the provisions of this Lease, or the application thereof to any
person or circumstance, shall, to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected thereby and shall remain
valid and enforceable, and every provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.



     Section 39.12. Landlord shall have the right to erect any gate, chain or other obstruction or
to close off any portion of the Real Property to the public at any time to the extent necessary to
prevent a dedication thereof for public use.



     Section 39.13. Tenant hereby represents to Landlord that it is not entitled, directly or
indirectly, to diplomatic or sovereign immunity and Tenant agrees that in all disputes arising
directly or indirectly out of this Lease Tenant shall be subject to service of process in, and
the jurisdiction of the courts of, the State of New York. The provisions of this Section
39.13 shall survive the expiration of this Lease.



     Section 39.14. This Lease contains the entire agreement between the parties and all prior
negotiations and agreements are merged into this Lease. This Lease may not be changed, abandoned
or discharged, in whole or in part, nor may any of its provisions be waived except by a written
agreement that (a) expressly refers to this Lease, (b) is executed by the party against whom
enforcement of the change, abandonment, discharge or waiver is sought and (c) is permissible under
the Mortgage(s) and the Superior Lease(s).



     Section 39.15. Any apportionment or prorations of Rental to be made under this Lease shall be
computed on the basis of a three hundred sixty (360) day year, with twelve (12) months of thirty
(30) days each.



     Section 39.16. This Lease shall be governed by the laws of the State of New York without
regard to conflict of laws principles.



     Section 39.17. If Tenant is a corporation or a limited liability company or a limited
liability partnership, Tenant hereby covenants, represents and warrants that Tenant is a duly
incorporated or duly qualified (if foreign) and is authorized to do business in the State of New
York (a copy of evidence thereof to be supplied to Landlord upon request); and that each person
executing this Lease on behalf of Tenant is an officer or member or partner of Tenant and that he



67









 




or she is duly authorized to execute, acknowledge and deliver this Lease to Landlord (a copy of a
resolution to that effect to be supplied to Landlord upon request).



     Section 39.18. The captions are inserted only as a matter of convenience and for reference and
in no way define, limit or describe the scope of this Lease nor the intent of any provision
thereof.



     Section 39.19. The covenants, conditions and agreements contained in this Lease shall bind and
inure to the benefit of Landlord and Tenant and their respective legal representatives, successors,
and, except as otherwise provided in this Lease, their assigns.



     Section 39.20. Intentionally Omitted.



     Section 39.21. For the purposes of this Lease and all agreements supplemental to this Lease,
unless the context otherwise requires:



          (A) The words “herein”, “hereof”, “hereunder” and “hereby” and words of similar import shall
be construed to refer to this Lease as a whole and not to any particular Article or Section unless
expressly so stated.



          (B) Tenant’s obligations hereunder shall be construed in every instance as conditions as well
as covenants, each separate and independent of any other terms of this Lease.



          (C) Reference to Landlord as having “no liability” or being “without liability” shall mean,
except as otherwise expressly provided in this Lease, that Tenant shall not be entitled
to terminate this Lease, or to claim actual or constructive eviction, partial or total, or to
receive any abatement or diminution of rent, or to be relieved in any manner of any of its other
obligations hereunder, or to be compensated for loss or injury suffered or to enforce any other
right or liability whatsoever against Landlord under or with respect to this Lease or with respect
to Tenant’s use or occupancy of the Premises.



          (D) Reference to “termination of this Lease” or “expiration of this Lease” and words of like
import includes expiration or sooner termination of this Lease and the Term and the estate hereby
granted or cancellation of this Lease pursuant to any of the provisions of this Lease or to law.
Upon the termination of this Lease, the Term and estate granted by this Lease shall end at noon on
the date of termination as if such date were the Fixed Expiration Date, and neither party shall
have any further obligation or liability to the other after such termination except (i) as shall be
expressly provided for in this Lease, and (ii) for such obligations as by their nature under the
circumstances can only be, or by the provisions of this Lease, may be, performed after such
termination, and, in any event, unless expressly otherwise provided in this Lease, any liability
for a payment (which shall be apportioned as of such termination) which shall have accrued to or
with respect to any period ending at the time of termination shall survive the termination of this
Lease.



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



68









 





          (F) The rule of “ejusdem generis” shall not be applicable to limit a general statement
following or referable to an enumeration of specific matters to matters similar to the matters
specifically mentioned.



     Section 39.22. If Tenant desires to determine any dispute between Landlord and Tenant as to
the reasonableness of Landlord’s decision to refuse to consent to any Alterations in accordance
with the provisions of Article 6 or to any subletting or assignment in accordance with the
provisions of Article 15, such dispute shall be settled and finally determined by
arbitration in The City of New York in accordance with the following provisions of this Section.
Within five Business Days following the giving of any notice by one party to the other stating that
it wishes such dispute to be so determined, Landlord and Tenant shall each give notice to the other
setting forth the name and address of an arbitrator designated by the party giving such notice. If
either party shall fail to give notice of such designation within said five Business Days, then the
arbitrator chosen by the other side shall make the determination alone. The two arbitrators shall
designate a third arbitrator. If the two arbitrators shall fail to agree upon the designation of a
third arbitrator within five Business Days after the designation of the second arbitrator, then
either party may apply to the Supreme Court of the State of New York or to any other court having
jurisdiction, for the designation of such arbitrator. All arbitrators shall be persons who shall
have had at least ten years of continuous experience in the business of owning or managing real
estate in the Borough of Manhattan, The City of New York. The three arbitrators shall conduct such
hearings as they deem appropriate, making their determination in writing and giving notice to
Landlord and Tenant of their determination as soon as practicable, and if possible, within five
Business Days after the designation of the third arbitrator; the concurrence of any two of said
arbitrators shall be binding upon Landlord and Tenant, or, in the event no two
of the arbitrators shall render a concurrent determination, then the determination of the
third arbitrator designated shall be binding upon Landlord and Tenant. Judgment upon any award
rendered in any arbitration held pursuant to this Section shall be final and binding upon Landlord
and Tenant, whether or not a judgment shall be entered in any court. Each party shall pay its own
counsel fees and expenses, if any, in connection with any arbitration under this Section, including
the expenses and fees of any arbitrator selected by it in accordance with the provisions of this
Section, and the parties shall share all other expenses and fees of any such arbitration. The
arbitrators shall be bound by the provisions of this Lease, and shall not add to, subtract from or
otherwise modify such provisions.



ARTICLE 40




OPTION TO RENEW




     Section 40.1. (A) Provided that both at the time of the exercise of the Renewal Option (as
hereinafter defined) and at the time of the commencement of the Renewal Term: (i) this Lease shall
be in full force and effect; (ii) there shall not then be existing an Event of Default under this
Lease; and (iii) Tenant and its affiliates shall be in physical occupancy of at least 75% of the
rentable area of the Premises, Tenant shall have one (1) option to extend the Term of this Lease
(the “Renewal Option”), for the Renewal Term, on the terms of this Lease (except as set
forth below). The Renewal Term shall commence on the day following the Fixed Expiration Date and
shall expire on the fifth (5th) anniversary of the Fixed Expiration Date. The Renewal
Option shall be exercisable by written notice (the “Renewal Notice”) to Landlord given not



69









 




earlier than eighteen (18) months, nor later than twelve (12) months (time being of the essence),
prior to the Fixed Expiration Date (and taking into account the extension of the Fixed Expiration
Date, if applicable, pursuant to Article 41). Notwithstanding the first sentence of this
Section 40.1, Landlord, in its sole discretion, may waive any default by Tenant and no such
default may be used by Tenant to negate the effectiveness of Tenant’s exercise of the Renewal
Option.



          (B) The Renewal Term shall constitute an extension of the Term of this Lease and shall be upon
all of the same terms and conditions as the existing Term, except that, (i) during the Renewal Term
there shall be no further option to renew the Term of this Lease, (ii) Landlord shall not be
required to furnish any materials or perform any work to prepare the Premises for Tenant’s
continued occupancy during the Renewal Term and Landlord shall not be required to reimburse Tenant
for any Alterations made or to be made by Tenant during or in preparation for the Renewal Term, and
(ii) the Fixed Rent for the Renewal Term shall be payable at a rate per annum equal to 95% of the
Fair Rental Value of the Premises as of the first day of the Renewal Term.



     Section 40.2. If Tenant has given the Renewal Notice in accordance with Section 40.1,
the parties shall endeavor to agree upon the Fair Rental Value of the Premises, as of the
commencement date of the Renewal Term. In the event that the parties are unable to agree upon the
Fair Rental Value for the Renewal Term within six (6) months prior to the first day of the Renewal
Term, then the same shall be determined as follows: Landlord, at Tenant’s request, shall notify
Tenant of Landlord’s determination of the Fair Rental Value, which shall constitute
the maximum that Landlord can subsequently claim is the Fair Rental Value of the Premises for
the Renewal Term in any arbitration thereof (“Landlord’s Maximum Determination”). Within
thirty (30) days after Landlord shall have given Tenant Landlord’s Maximum Determination (time
being of the essence), Tenant shall notify Landlord whether Tenant disputes Landlord’s Maximum
Determination and, if Tenant disputes Landlord’s Maximum Determination, Tenant shall set forth in
such notice Tenant’s good faith determination of the Fair Rental Value of the Premises for the
Renewal Term, which shall constitute the minimum that Tenant can subsequently claim is the Fair
Rental Value for the Premises for the Renewal Term in any arbitration thereof (“Tenant’s
Minimum Determination”). If Tenant fails to dispute Landlord’s Maximum Determination or to set
forth Tenant’s Minimum Determination within the time period set forth above (time being of the
essence), then Tenant shall be deemed to have accepted Landlord’s Maximum Determination as the Fair
Rental Value for the Renewal Term.



     Section 40.3. If Tenant disputes Landlord’s determination of Fair Rental Value, and Landlord
and Tenant fail to agree as to the amount thereof within thirty (30) days after the giving of
Tenant’s Minimum Determination, then the dispute shall be resolved by arbitration as set forth in
this Section 40.3. If the dispute shall not have been resolved on or before the first day
of the Renewal Term, then pending such resolution, Tenant shall pay, as Fixed Rent for the Renewal
Term, an amount equal to 95% of the average of Landlord’s Maximum Determination and Tenant’s
Minimum Determination. Within thirty (30) days after the final determination of Fair Rental Value
for the Renewal Term, Landlord and Tenant shall reconcile any overpayment or underpayment. Any
dispute as to Fair Rental Value shall be determined as follows: A senior officer of a recognized
New York City leasing brokerage firm (the “Baseball Arbitrator”) shall be selected and paid
for jointly by Landlord and Tenant. If Landlord and Tenant are unable to agree upon the Baseball
Arbitrator, then the same shall be designated by the American



70









 




Arbitration Association
(“AAA”). The Baseball Arbitrator selected by the parties or designated by the AAA shall
not have been employed by Landlord or Tenant during the previous five (5) year period and shall
have at least ten (10) years experience in the leasing of Premises in the immediate vicinity of the
Building, comparable in size, location and quality to the Premises. Landlord and Tenant shall each
submit to the Baseball Arbitrator and to the other its determination of the Fair Rental Value for
the Renewal Term, as set forth above, which need not be Landlord’s Maximum Determination or
Tenant’s Minimum Determination. The Baseball Arbitrator shall determine which of the two (2) rent
determinations more closely represents the Fair Rental Value for the Renewal Term, taking into
account all relevant factors, whether favorable to Landlord or Tenant. The Baseball Arbitrator may
not select any other rental value for the Renewal Term other than one submitted by Landlord or
Tenant. The determination of the Baseball Arbitrator shall be final and binding upon Landlord and
Tenant and shall serve as the basis for the Fixed Rent payable for the Renewal Term and Landlord
and Tenant each consents to the entry of judgment in any court based upon such determination.
After a determination has been made of the Fair Rental Value, the parties shall execute and deliver
an instrument setting forth the Fixed Rent for the Renewal Term, but the failure to so execute and
deliver any such instrument shall not affect the determination of such Fixed Rent in accordance
with this Article 40.



ARTICLE 41




EXPANSION OPTION




     Section 41.1. Provided that (i) this Lease shall be in full force and effect; (ii) there shall
not then be existing an Event of Default under this Lease; (iii) Tenant and its affiliates shall be
in physical occupancy of at least 75% of the rentable area of the Premises; and (iv) Viacom
International Inc. (or its successor) has not previously exercised its expansion right on the
Expansion Space, Tenant shall have the one-time option (the “Expansion Option”) to lease
the Expansion Space in accordance with the provisions of this Article 41. The leasing of
the Expansion Space shall be upon all of the terms and conditions contained in this Lease, except
as provided herein.



     Section 41.2. Landlord represents that the existing lease for the Expansion Space expires on
January 31, 2015 and that Landlord shall not extend the term of such lease without Tenant’s consent
so long as the Expansion Option is still in effect. Tenant may exercise the Expansion Option by
notice to Landlord (the “Expansion Notice”) given on or before December 31, 2013 (time
being of the essence with respect to Tenant’s obligation to exercise the Expansion Option by such
date). Tenant’s Expansion Notice shall be accompanied by Tenant’s determination of the Fair Market
Value of the Expansion Space (“Tenant’s Expansion Determination”), which shall constitute
the minimum that Tenant can claim is the Fair Rental Value of the Expansion Space in any
arbitration thereof. If Tenant shall timely exercise the Expansion Option in the manner set forth
above, then on the date (the “Expansion Space Commencement Date”) on which Landlord
delivers possession of the Expansion Space to Tenant, vacant, free of occupants and free and clear
of any and all rights of any other tenants or occupants of the Building, the Expansion Space
automatically shall be deemed to be and shall be added to and form part of the Premises under this
Lease except (A) the Fixed Rent for the Expansion Space shall be 100% of



71









 





the Fair Market Value of
the Expansion Space (with no abatement of Fixed Rent), (B) Tenant’s Share for the Expansion Space
shall be a fraction, expressed as a percentage, the numerator of which shall be the rentable square
footage of the Expansion Space and the denominator of which shall be the rentable square footage of
the Building then used by Landlord generally in new leases, (C) Tenant shall accept the Expansion
Space in “as is” but broom clean condition, and (D) Landlord shall not be obligated to pay a Tenant
Improvement Allowance with respect to the Expansion Space, provided all of the same is taken into
account in determining Fair Market Value.



     Section 41.3. Within 30 days after receipt of the Expansion Notice and Tenant’s Expansion
Determination, Landlord shall deliver to Tenant Landlord’s determination of the Fair Rental Value
for the Expansion Space (“Landlord’s Expansion Determination”), if it disagrees with
Tenant, which shall constitute the maximum that Landlord can claim is the Fair Rental Value for the
Expansion Space in any arbitration thereof. If the parties fail to agree upon the Fair Market
Value of the Expansion Space within thirty (30) days after the date of Landlord’s Expansion
Determination, then the dispute shall be resolved by arbitration as set forth in Section
40.3, except Tenant’s Expansion Determination shall be substituted for Tenant’s Minimum
 Determination and Landlord’s Expansion Determination shall be substituted for Landlord’s
Maximum Determination. If the dispute shall not have been resolved on or before the Expansion
Space Commencement Date, then pending such resolution, Tenant shall pay, as Fixed Rent for the
Expansion Space, an amount equal to the average of Landlord’s Expansion Determination and Tenant’s
Expansion Determination. Within 30 days after the final determination of Fair Market Value,
Landlord and Tenant shall reconcile any overpayment or underpayment.



     Section 41.4. If Tenant fails timely to give the Expansion Notice under this Article
41, then (i) Landlord may enter into one or more leases of the Expansion Space (or any portion
thereof) with third parties on such terms and conditions as Landlord shall determine, (ii) the
Expansion Option shall be null and void and of no further force and effect and Landlord shall have
no further obligation to lease the Expansion Space (or any portion thereof) to Tenant and (iii)
Tenant shall, as soon as reasonably practicable after demand by Landlord, execute an instrument
reasonably satisfactory to Landlord and Tenant confirming Tenant’s waiver of, and extinguishing,
the Expansion Option.



     Section 41.5. Promptly after the occurrence of the Expansion Space Commencement Date, Landlord
and Tenant shall confirm the occurrence thereof and the inclusion of the Expansion Space in the
Premises by executing an instrument reasonably satisfactory to Landlord and Tenant; provided that
failure by Landlord or Tenant to execute such instrument shall not affect the inclusion of the
Expansion Space in the Premises in accordance with this Article 41.



     Section 41.6. If Landlord is unable to deliver possession of the Expansion Space to Tenant for
any reason on or before the Expansion Space Commencement Date, the effective date such Expansion
Space shall be deemed to be part of the Premises shall be the date on which Landlord is able to so
deliver possession and Landlord shall have no liability to Tenant therefor and this Lease shall not
in any way be impaired. If an existing tenant of the Expansion Space holds over, Landlord shall
commence and prosecute to conclusion an eviction action against such holdover tenant, to obtain
possession of such Expansion Space. This Section 41.6 constitutes “an express provision to
the contrary” within the meaning of Section 223-a of the New York



72









 




Real Property Law and any other
law of like import now or hereafter in effect. Notwithstanding the foregoing, if Landlord is
unable to deliver possession of the Expansion Space to Tenant within 180 days after the anticipated
commencement date for such Expansion Space specified by Landlord after Tenant’s request therefor,
Tenant, upon notice to Landlord given within fifteen (15) days after the expiration of such 180 day
period (unless the commencement date for the Expansion Space shall have occurred prior to the
giving of such notice), may withdraw its Expansion Notice and the Expansion Space shall not become
part of the Premises.



     Section 41.7. Notwithstanding anything in this Article 41 to the contrary, if Landlord
anticipates that the Expansion Space shall become vacant and free of the option of Viacom
International Inc. (or its successors) prior to the scheduled Expansion Space Commencement Date,
then Landlord may accelerate the Expansion Space Commencement Date by delivering a notice to Tenant
advising it of the accelerated Expansion Space Commencement Date as well as specifying Landlord’s
Expansion Determination for such Expansion Space. In such event, Tenant, if it wishes to exercise
such option, shall do so by delivering to Landlord the Expansion Notice within 30 days of
Landlord’s notice (time being of the essence with respect to Tenant’s
obligation to give Tenant’s Expansion Notice by such date), and otherwise in accordance with
this Article 41.



     Section 41.8. As a condition of Tenant’s exercise of the Expansion Option, the Term of this
Lease shall be extended for a two year period so that the Fixed Expiration Date shall be October
31, 2020, upon all of the terms and conditions of this Lease. The Fixed Rent for such additional
two year period (as such Fixed Rent shall be increased pursuant to Section 3.5 of this
Lease) is set forth in Schedule C.



ARTICLE 42




ICIP PROGRAM




     Section 42.1. Landlord hereby notifies Tenant that Landlord has availed itself of certain
exemptions and/or abatements of Taxes under the Industrial and Commercial Incentive Program
(“ICIP”) in connection with the renovation of the Building, including any work to be
performed by Landlord in the Premises. Tenant agrees to comply, and to cause its contractors and
subcontractors performing Alterations in the Premises to comply, with all rules and regulations of
the ICIP in effect from time to time, including, but not limited to, the filing requirements of the
New York City Department of Finance (“DOF”) and the New York City Department of Small
Business Services (“DSBS”) with respect to all Alterations performed by Tenant in the
Premises and the Building. In connection therewith, all of Tenant’s construction managers,
contractors and subcontractors employed in connection with the Alterations shall be required by
Tenant to comply with DSBS requirements currently and hereinafter applicable to construction
projects benefiting from the ICIP. Such compliance, as of the date hereof, includes the following:
the submission and approval of a Construction Employment Report, attendance at a pre-construction
conference with representatives of DSBS and adherence to the provisions of Article 22 of the ICIP
Rules and Regulations, the provisions of the New York City Charter Chapter 13B and the provisions
of Executive order No. 50 (1980) and cooperation with Landlord with respect to Landlord’s
application to obtain the ICIP exemption and/or abatements and the



73









 




implementation of the ICIP
through the period that the program shall be in effect. Promptly following knowledge or receipt of
notice of any failure of any contractor or subcontractor to comply with such contractual provisions
regarding DSBS compliance, Tenant shall use all commercially reasonable efforts to enforce such
contractual DSBS compliance obligations, including, without limitation, by way of termination of
such contracts and/or subcontracts.



     Section 42.2. Prior to performing the Alterations, obtaining building permits in connection
with the Alterations or executing an agreement with a contractor to perform the Alterations, Tenant
shall direct its architect or engineer to prepare a narrative description of the project with a
construction budget. In addition, Tenant shall, to the extent required by ICIP Rules and
Regulations applicable to the Building (i) upon Landlord’s request and upon thirty (30) days notice
to Tenant, report annually to Landlord the use of the Premises, number of workers permanently
engaged in employment in the Premises, the nature of each worker’s employment, and to the extent
applicable, the New York City residency of each worker, (ii)
provide access to the Premises by employees and agents of the Department (as such term is
defined in the ICIP rules and regulations) at all reasonable times, (iii) enforce the contractual
obligations of Tenant’s construction managers, contractors, and subcontractors to comply with the
DSBS requirements, (iv) timely submit required ICIP documentation which shall include copies of
blueprints, plans, building permits, (v) furnish to Landlord (and cause its contractors and
subcontractors to so furnish), simultaneously with the submission to any agency administering the
ICIP, copies of all documents submitted by Tenant or required to be submitted by Tenant in
connection with the ICIP (and cause its contractors and subcontractors to do the same) and (vi)
submit to Landlord on completion of the Alterations, an architect’s letter of completion, a summary
by trade of the costs incurred in the performance of such Alterations, certified by a reputable,
independent certified public accountant. Tenant agrees to cause all such information and reports
to be supplied within the time limits for submitting such information.



     Section 42.3. The ICIP imposes certain requirements with respect to construction managers,
contractors and subcontractors performing Alterations in the Building. Tenant agrees that it shall
use only those contractors that qualify under and satisfy the requirements of the ICIP.




74












 





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



	 	 	 	 	 
	 	LANDLORD:



THE RECTOR, CHURCH-WARDENS AND

VESTRYMEN OF TRINITY CHURCH IN THE CITY OF NEW YORK

 	 
	 	By:  	/s/  Jason Pizer
 	 
	 	 	Jason Pizer 	 
	 	 	Director of Commercial Real Estate Leasing 	 
	 	 	 
	 	By:  	
/s/  Carl Weisbrod
 	 
	 	 	Carl Weisbrod 	 
	 	 	Executive Vice President 	 
	 	 	 
	 	By:  	
/s/  Stephen Duggan
 	 
	 	 	Stephen Duggan 	 
	 	 	Chief Financial Officer 	 
	 
	 	TENANT:

WATERFRONT MEDIA INC.

 	 
	 	By:  	/s/  Alan Shapiro
 	 
	 	 	Name:  	Alan Shapiro 	 
	 	 	Title:  	Senior Vice President and General Counsel 	 
	 
	 	Tenant’s Federal Employer Identification Number:


80 00362062

 	 
	 	 	 
	 	 	 
	 	 	 
	 




75











 





SCHEDULE A




FLOOR PLAN OF PREMISES




 









 








SCHEDULE B




TENANT ALTERATION GUIDELINES





	1.	 	Purpose of Guidelines: The Tenant Alteration Guidelines were prepared to summarize the
requirements for tenants performing alterations in their premises. They include process
statements and turn-around times so that both Landlord and Tenant can proceed with expected
outcomes.






	2.	 	Landlord’s Written Consent Required for Tenant Alterations: Tenant shall make no Alterations
in the Premises except in accordance with Article 6. In general, Landlord will not
approve Alterations in instances where there is (are) outstanding Alteration projects that
have not been completed with reasonable dispatch and for which New York City Department of
Buildings sign-offs have not been obtained and delivered to Landlord.






	3.	 	Tenant’s Written Notification to Landlord for Decorative Alterations: For Decorative
Alterations, Tenant shall notify the Landlord in writing at least ten (10) days in advance of
the work, but Landlord shall not be required to approve such work. However, access to the
Building to perform such work is conditioned upon Tenant’s contractor providing acceptable
evidence of insurance to Landlord.






	4.	 	Landlord’s Written Consent for Tenant’s Architect, Engineer and Expediter: At the time that
Tenant obtains Landlord’s written approval for the Alterations, Landlord will provide a list
of approved engineers and expediters who have previously performed satisfactory work in
Landlord’s buildings and who Landlord considers acceptable for future work. Landlord will
consider Tenant’s written request for exceptions on a ease-by-case basis for engineers and
expediters who are not presently approved.






	5.	 	Landlord’s Written Consent for Tenant’s Contractors: At any time during the Alteration
design process, Tenant shall obtain Landlord’s written approval of Tenant’s proposed
contractors who will perform the construction work. In any event, the approved contractors
must submit Certificates of Insurance to Landlord that meet Landlord’s then current insurance
requirements for the construction of Alterations. Such requirements are typically different
than the insurance required under the Lease. In addition, the contractors shall comply with
Landlord’s Rules and Regulations and procedures regarding utility interruptions, construction
deliveries, noise control and fire safety, among other requirements. A current copy of
Landlord’s insurance requirements and a current copy of the Rules and Regulations will be
provided to Tenant and the contractor at the time of Landlord’s approval of Tenant’s
contractors.






	6.	 	Landlord’s Written Approval of Plans and Specifications: Tenant shall submit fully-developed
drawings and specifications, sealed and signed by an Architect and/or Engineer licensed to
practice in New York State, to Landlord





 









 









	 	 	along with copies of the filings to the New York City Department of Buildings and any other
Government Authority, as well as a project schedule, all in advance of the start of the
construction work. Note that Landlord is required to sign all filings prior to submission
to the New York City Department of Buildings and any other Government Authority. Landlord
shall not approve schedules which do not reflect reasonable dispatch.






	7.	 	Intentionally Omitted.






	8.	 	Design, Construction or Schedule Changes: Tenant shall notify Landlord in writing of changes
to the design, construction work or schedule and shall provide appropriate supportive
documentation. Once a project extends beyond its original completion date, Tenant shall
submit a written monthly update to Landlord showing the current project status and the new
completion date.






	9.	 	Project Completion: When the construction work has been completed and the Architect/Engineer
has inspected such work to ensure that it is complete and meets the design intent, Tenant
shall obtain and submit the following documents to Landlord:






	 	•	 	Letters of Completion (unconditional sign-off) from the New York
City Department of Buildings and any other Government Authority (one copy);
	 
	 	•	 	Controlled inspection reports, where applicable (three (3) sets);
	 
	 	•	 	Equipment Use Permits issued by the New York City Department of
Buildings and any other Government Authority (3 copies of original);
	 
	 	•	 	One set of drawings, approved by the New York City Department of
Buildings (perforated); and
	 
	 	•	 	“As-built” drawings (three (3) sets) including an electronic CAD
version on CD-ROM.






	10.	 	Spaces that are altered shall not be occupied until all life and fire safety systems are
operational, as approved by the Architect/Engineer of Record.






	11.	 	All communications regarding Tenant’s Alterations should be directed to:





Trinity Real Estate

Office of Design and Construction

75 Varick Street, 2nd Floor

New York, N.Y. 10013

Telephone 212-602-0815/fax 212-602-0729




B-2









 






	 	 	No other Landlord employees are authorized to receive, comment, or approve architects,
engineers, designs contractors, equipment, plans, drawings, schedules or
specifications.





B-3









 






SCHEDULE C




FIXED RENT AND OPERATING EXPENSE PAYMENT



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Operating	 	 
	Lease Year	 	Fixed Rent	 	Escalation	 	Escalated Rent
	1
	 	$	1,274,245	 	 	$	0	 	 	$	1,274,245	 
	2
	 	$	1,274,245	 	 	$	38,227	 	 	$	1,312,472	 
	3
	 	$	1,383,466	 	 	$	77,602	 	 	$	1,461,068	 
	4
	 	$	1,383,466	 	 	$	121,434	 	 	$	1,504,900	 
	5
	 	$	1,383,466	 	 	$	166,581	 	 	$	1,550,047	 
	6
	 	$	1,383,466	 	 	$	213,082	 	 	$	1,596,548	 
	7
	 	$	1,383,466	 	 	$	260,978	 	 	$	1,644,444	 






     The first Lease Year commences on the Commencement Date and ends twelve months later. Lease
Years 6 and 7 only apply if Tenant exercises the Expansion Option pursuant to Article 41.



C-1









 








SCHEDULE D




FLOOR PLAN OF EXPANSION SPACE




D-1









 








SCHEDULE E




CLEANING SPECIFICATIONS





	A.	 	TENANT SUITES






	 	1.	 	Nightly






	 	a)	 	Carpeted floors: All carpeted floors will be swept nightly
and vacuumed weekly using a high quality vacuum, moving all light furniture
such as chairs and stands. All furniture will be replaced to its original
position. Vacuum under all desks and large furniture where possible.
	 
	 	b)	 	Uncarpeted floors: All hard-surfaced floors will be
dust-mopped nightly, using a treated dust mop, moving all light furniture.
All furniture will be replaced to its original position. Dust-mop under all
desks and large furniture where possible.
	 
	 	c)	 	Dusting and cleaning: Wipe all furniture tops, legs, rungs
and sides within hands’ reach; wipe and disinfect telephones. Wipe all
horizontal surfaces within reach, including window ledges, baseboards, ledges,
molding and sills on glass and partitions. No feather dusters will be
allowed. Papers or other personal items (i.e., pictures, keys, wallets, etc.)
left on desk tops will not be moved.
	 
	 	d)	 	Furniture and Accessories: Dust, wipe clean and remove
finger marks, if necessary, from all furniture, file cabinets, mapboards, and
telephones using treated cloth.
	 
	 	e)	 	Trash Removal: Collect and remove wastepaper, waste material
and cardboard boxes to designated area in or adjacent to the Premises.
	 
	 	f)	 	Miscellaneous:






	 	i.	 	Scour, wash clean and disinfect all water
fountains and coolers, emptying waste water as needed.
	 
	 	ii.	 	Once entering a suite, the door is to be
locked.
	 
	 	iii.	 	Upon completion of all nightly chores, all
lights shall be turned off, windows closed, doors locked and offices
left in a neat and orderly condition.





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	 	2.	 	Quarterly






	 	a)	 	High Dusting: Perform all high dusting throughout on a
quarterly basis unless otherwise specified, including the following:






	 	i.	 	Vacuum and dust all pictures, frames,
charts, graphs and similar wall hangings not reached in nightly
cleaning;
	 
	 	ii.	 	Dust all overhead pipes, sprinklers,
ventilating and air-conditioning louvers and adjacent ceiling areas,
ducts and other equipment items not reached in nightly cleaning;
	 
	 	iii.	 	Dust all venetian blinds and window frames;
and
	 
	 	iv.	 	Wash all furniture glass.






	B.	 	RESTROOMS (Including Tenant Suites)






	 	1.	 	Nightly Cleaning:






	 	a)	 	Walls and Metal Partitions: Damp wipe all metal toilet
partitions and tiled walls, removing graffiti with care taken not to damage
surfaces. All surfaces are to be wiped dry so that all wipe marks are removed
and surface has a uniformly bright appearance. Dust the top edges of all
partitions, ledges and mirror tops.
	 
	 	b)	 	Floors and Tile: Floors will be swept clean and wet-mopped
with a germicidal detergent approved by Landlord using spray tank method. The
floors will then be mopped dry and all watermarks and stains wiped from wall
and metal partition bases, paying particular attention to corners. Scuff
marks and footmarks are to be removed throughout.
	 
	 	c)	 	Metal Fixtures: Wash and polish all mirrors, powder shelves,
bright work (including flushometers and exposed piping below wash basins and
behind toilet fixtures), towel dispensers, receptacles and any other metal
accessories.
	 
	 	d)	 	Ceramic Fixtures: Scour, wash and disinfect all basins,
including faucet handles, bowls, urinals and tile walls near urinals with
approved germicidal detergent solution. Wash both sides of all toilet seats
with approved germicidal solution and wipe dry. Toilet seats are to be left
in an upright position.
	 
	 	e)	 	Powder Rooms: If applicable, should be thoroughly cleaned
and floors should be washed or vacuumed, as applicable.




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	 	f)	 	All lavatories shall be thoroughly cleaned with an approved
disinfectant.
	 
	 	g)	 	Air fresheners shall not be used to cover-up unpleasant
odors. Should there be an unpleasant odor, proper disinfecting procedures
shall be used to abate the odors. An odorless disinfectant shall be used.
	 
	 	h)	 	Remove all wastepaper and refuse, including sanitary napkins,
to a designated area in the building and dispose of same. All wastepaper and
sanitary napkin receptacles are to be thoroughly cleaned and washed, and new
liners installed; liners to be installed so as to ensure maximum usage of
receptacles.
	 
	 	i)	 	Fill toilet tissue holders, seat cover containers, soap
dispensers, towel dispensers, and sanitary napkin dispensers.






	 	2.	 	Weekly






	 	a)	 	Floor Drains: Clean, disinfect, and fill with water to avoid
the escape of sewer gases. Use of acids is prohibited.






	 	3.	 	Monthly






	 	a)	 	Walls and Metal Partitions and Washable Ceiling: Wash with
water and germicidal solution. Wipe dry and polish to a uniformly bright,
clean condition.
	 
	 	b)	 	High Dusting and Cleaning: Perform all high dusting,
inclusive of grilles and diffusers, vacuum and wash all ceiling diffusers.
	 
	 	c)	 	Floors: All floors will be machine-scrubbed, using a
germicidal solution, detergent and water. After scrubbing, floors will be
rinsed with clean water and dried. All water marks will be removed from
walls, partitions, and fixtures.





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SCHEDULE F




CERTIFICATE OF OCCUPANCY




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SCHEDULE G




RULES AND REGULATIONS



Tenant’s Premises




	 	1.	 	Tenant Alterations Guidelines: All Alterations installed or constructed by
Tenant or Tenant’s contractor shall be done in accordance with the Tenant Alterations
Guidelines.
	 
	 	2.	 	No Additional Locks: Tenant shall not alter any lock or install a new or
additional lock or bolt on any doors or windows. On termination or expiration of this
Lease, all keys must be surrendered to Landlord, and in the event of the loss of any
keys furnished at Landlord’s expense, Tenant shall pay to Landlord the cost thereof.
If the Building has a central security system, Tenant shall provide Landlord with all
access codes to the Premises. If Tenant fails to provide Landlord with a means of
access to the Premises, Landlord shall be relieved of all obligation, if any, to
provide cleaning services to the Premises and shall not be responsible for the cost of
repairing any damage resulting from any forced entry into the Premises in the case of
an emergency.
	 
	 	3.	 	Doors, Windows and Blinds: Tenant shall keep the entrance door to the
Premises closed at all times. Tenant shall not attach or install curtains, draperies,
blinds, shades or screens on any window in the Premises without Landlord’s prior
written consent. During the cold season, the windows shall be kept closed to maintain
the temperature of the Premises and to prevent any freezing thereof, or of any
equipment or appliance therein. If the Building contains central air-conditioning and
ventilation, Tenant agrees to keep all windows closed at all times and to abide by all
rules and regulations issued by Landlord with respect to such services. Tenant shall
draw and close the draperies or blinds for the windows of the Premises whenever the
air-conditioning system is in operation and the position of the sun so requires.
	 
	 	4.	 	Ceilings, Wall and Floor Coverings: Except in accordance with the provisions
of the Lease, Tenant shall not install in the Premises any ceilings, flooring or
architectural finishes, and no part of the Premises or the Building shall be marked,
painted, bored, drilled into, or in any way defaced. Any slab drilling which is
permitted by Landlord shall be done in accordance with the provisions of the Lease and
shall be done during non-Operating Hours unless otherwise authorized by Landlord in
writing. No boring, cutting or stringing of wires shall be permitted, except with the
prior written consent of Landlord.




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	 	5.	 	Window Cleaning: Tenant shall not clean, nor require, permit or allow any
window in the Premises to be cleaned from the outside in violation of OSHA rules,
Section 202 of the NYS Labor Law or of the Rules of the NYC Board of Standards and
Appeals, or of any other board or body having or asserting jurisdiction.
	 
	 	6.	 	Floor Loads: No load shall be placed upon any floor of the Building
exceeding the floor load per square foot area which such floor was designed to carry,
and all loads shall be evenly distributed. Landlord reserves the right to prescribe
the weight and placement of all safes, heavy machinery and other heavy personal
property in the Premises so as to distribute their weight.
	 
	 	7.	 	Machinery: All machinery shall be installed in a manner sufficient, in
Landlord’s judgment, to absorb any shock and prevent any noise, vibration or annoyance
in the Building, and, if necessary, shall be provided with oil pans between such
machinery and the floor beneath it, sufficient to prevent the seepage of oil on or
into the floors, regardless of whether or not such oil pans were required by Landlord
when such machinery was originally installed.
	 
	 	8.	 	Noise and Odors, etc.: No part of the Premises shall be used in a manner or
for a purpose that is objectionable to Landlord or another tenant, by reason of noise,
odors, vibrations or otherwise, or which in the reasonable judgment of Landlord might
cause damage to the Building or interfere in any way with other tenants or those
having business in the Building or create a nuisance. Tenant shall not make, or
permit to be made, any unseemly or disturbing noises or disturb or interfere with
occupants of the Building or neighboring buildings or premises or those having
business with them, whether by the use of any musical instrument, radio, television
set, musical or un-musical noise, singing or in any other way.
	 
	 	9.	 	Awnings, Antennas and Air Conditioning Equipment: No awnings, antennae,
aerials, ventilating and air-conditioning apparatus or other projections shall be
attached to the outside walls or window openings of the Building. No air-conditioning
apparatus may be installed in windows of the Premises, except as expressly approved in
writing by Landlord.
	 
	 	10.	 	Hazardous Materials: Tenant shall not permit any flammable, combustible,
explosive or hazardous fluid, material or chemical in the Premises or any substance
which would cause any unusual or objectionable odors (including from food) to be
produced upon or emanate from the Premises, or which may pose an environmental or
safety risk to occupants of the Building, except lawful quantities of office cleaning
supplies.




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	 	11.	 	Fire Safety: No burning or welding or open flames are permitted in the
Premises, unless Landlord has provided its prior approval in writing. No combustible
holiday decorations (such as evergreen trees or branches) are permitted anywhere in
the Building, including the Premises. Tenant shall comply with fire and non-fire
emergency response plans as required by government regulations. Tenant shall keep
emergency egress routes clear of stored material and shall ensure that no fire door is
ever chocked open.
	 
	 	12.	 	No Smoking: Tenant shall not permit any person to smoke in the Premises,
except as permitted by the New York City Smoke-Free Air Act.
	 
	 	13.	 	Basement Storage: If the Premises consist of basement space, or if any
property of Tenant is stored in the basement portion of the Building, all such
property shall, at Tenant’s own cost and expense, be placed entirely on skids or
platforms, which will raise such property at least six (6) inches from the floor.
Landlord shall have no liability for any materials stored in the basement.
	 
	 	14.	 	Tenant Installed Equipment: Tenant shall make, obtain and renew all
necessary filings, Building and other permits required by Laws for all equipment and
systems installed by Tenant in the Premises, and, Tenant shall furnish Landlord with a
copy thereof. In the case of any such equipment or system installed by Tenant which
is attached to the Building or is part of the Building Systems, Tenant shall maintain
such equipment or system in good working order and, upon Landlord’s request shall
furnish Landlord with evidence of such maintenance.
	 
	 	15.	 	Heating and Air Conditioning: Tenant shall not use any method of heating or
air-conditioning other than that supplied or approved by Landlord.




Building Access




	 	16.	 	Invitees and Visitors: Landlord may exclude any persons visiting or
attempting to visit the Premises by means of an entrance into the Premises from the
lobby of the Building, unless such person shall (i) have been approved by Tenant, (ii)
present proof of identity to the Building security personnel, and, if requested, (iii)
sign his name and the Premises which he is to visit. Each tenant shall be responsible
for all of its invitees and visitors and shall be liable for all acts of such persons.
Landlord retains the right to prevent access to the Building to all persons whose
presence, in the judgment of Landlord, would be prejudicial to the safety, character
or reputation of the Building, and Tenant shall not have a claim against Landlord by
reason of such exclusion of any person. Landlord shall maintain detailed written
procedures covering invitees and visitors and such procedures shall be available for
inspection by Tenant.




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	 	17.	 	Access Cards: If the Building in which the Premises are located is equipped
with an access card system, Landlord will furnish the initial access card to Tenant’s
employees free-of-charge and Tenant shall pay for the cost of replacing any damaged,
stolen or lost cards, and Tenant shall promptly furnish Landlord with the name of any
employee to whom a card was issued and who, for any reason, ceases to be an employee
of Tenant and also return to Landlord such ex-employee’s access card. At Landlord’s
option, and with the concurrence of Tenant, frequent visitors to the Premises may also
be issued access cards. Landlord shall maintain detailed written procedures covering
access cards and such procedures shall be available for inspection by Tenant.
	 
	 	18.	 	Deliveries and Removals: All deliveries to or from the Premises shall be
made by means of the loading dock. Landlord may prescribe, and from time to time
vary, the time for any removals or deliveries from or to the Premises. Removals or
deliveries of safes, machinery, business equipment, furniture, freight, and any other
heavy or bulky matter shall be done only through the loading dock and only in such
manner and by such persons as may be acceptable to Landlord, and Landlord may require
any further assurances or agreements or indemnity from Tenant to the movers to that
effect. If any safe, machinery, equipment, bulky matter or fixtures requires special
handling, all work in connection therewith shall comply with the Administrative Code
of the City of New York and all other Requirements applicable thereto. Landlord
reserves the right to inspect all freight to be brought into the Building and to
exclude from the Building all freight which violates any of these Rules and
Regulations or the Lease of which these Rules and Regulations are a part. Landlord
shall maintain detailed written procedures covering deliveries and removals and such
procedures shall be available for inspection by Tenant.
	 
	 	19.	 	Inspection of Packages: Landlord and its agents reserve the right to inspect
all packages, boxes, bags, handbags, attaché, cases, suitcases, and other items
carried into the Building, and to refuse entry into the Building to any person who
either refuses to cooperate with such inspection or who is carrying any object which
may be dangerous to persons or property. In addition, Landlord reserves the right to
implement such further measures designed to ensure safety of the Building and the
persons and property located therein as Landlord shall deem necessary or desirable.
Landlord shall maintain detailed written procedures covering inspection of packages
and such procedures shall be available for inspection the by Tenant.
	 
	Building Rules
	 
	 	20.	 	Tenant Signs: No sign or lettering shall be exhibited, inscribed, painted or
affixed outside of the Premises, or on the inside of the Premises (including on the
inside of any windows), in each case, if the same can be seen from the outside of the
Premises except as may be approved in




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	 	 	 	writing by Landlord, except that the name of Tenant may appear on the entrance door
of the Premises. If Tenant violates this rule, Landlord may remove the same
without liability and the expenses so incurred by Landlord shall be paid by Tenant
as Additional Rent. Any sign or display which may be installed by Tenant shall be
kept in good order and repair and in a neat and attractive condition. Landlord
reserves the right to use the roof and outside walls surrounding the Premises for
sign purposes. Landlord may remove any sign or signs or displays in order to paint
the Premises or any part of the Building, or make any repairs, alterations or
improvements in or upon the Premises or the Building, or any part thereof, provided
it causes the same to be removed and replaced at Landlord’s expense, whenever the
painting, repairs, alterations or improvement shall have been completed. Interior
signs on doors shall be of a size, color and style reasonably acceptable to
Landlord. Landlord reserves the right to approve the appearance and design of the
elevator lobby on each floor of the Building.
	 
	 	21.	 	No Tenant Obstructions: The skylights, entrances, passages, courts, roofs,
elevators, vestibules, stairways, loading platforms, corridors, halls or any part of
the Building intended for use in common by Tenant with other occupants of the Building
shall not be obstructed or encumbered by Tenant or used for any other purpose than for
ingress or egress from the Premises and for delivery of equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery by
Landlord. In the event of any encumbrance or obstruction, Landlord may remove the
material causing such encumbrance or obstruction and cause it to be stored and charge
the cost of doing so to Tenant. No courtyard or yard appurtenant to the Premises or
the Building shall be used for parking vehicles of any kind, except as approved in
writing by Landlord. If the Premises are on the ground floor of the Building, Tenant
shall, at its expense, keep the sidewalk and curb in front of the Premises clean and
free from rubbish.
	 
	 	22.	 	No Smoking or Loitering: Smoking or carrying lighted cigars or cigarettes is
prohibited in the lobby, hallways, stairways, elevator or in any other part of the
Building used in common by the tenants, including the Building lobby. Tenant’s
employees, guests and visitors shall not gather to smoke, or loiter around the lobby,
hallways, stairways, elevators, the roof or any other part of the Building used in
common by the tenants thereof, or in front of the Building or elsewhere on the
property on which the Building is located.
	 
	 	23.	 	Windows and Stairwells: Nothing shall be hung, shaken, thrown out of any
window or doors, or down any passages, stairways, elevators, or skylights of the
Building, nor shall any of them be covered, obstructed or encumbered. Tenant shall
not use, keep or permit to be used any foul or noxious gas or substance in the
Premises, except that Tenant shall be




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	 	 	 	permitted to use such materials as are customarily employed to maintain merchandise
of the type sold by Tenant, such as, e.g., furniture wax.
	 
	 	24.	 	Use of Sanitary Facilities: All sanitary facilities, janitor’s closets and
plumbing fixtures shall be used only for the purposes for which they were designed,
and no sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any stoppage or damage resulting from the violation of this rule
shall be borne by the tenant whose employees, agents, invitees or visitors caused it.
	 
	 	25.	 	No Use of Building Staff: Building employees are not permitted to perform
any work or do anything outside of their regular duties, unless such work is requested
by Tenant and authorized by Landlord pursuant to Landlord’s established procedures.
	 
	 	26.	 	No Solicitations or Displays: No peddling, soliciting or canvassing shall be
permitted in the Premises or by Tenant’s employees elsewhere in the Building. No
display may be installed in the lobby or any other common area of the Building.
	 
	 	27.	 	Elevator Operation: No tenant shall operate any elevator in the Building,
except for automatic self-service elevators.
	 
	 	28.	 	Dollies and Carts: All dollies, carts, vehicles or conveyances used by
Tenant or others in the delivery or receipt of materials are not permitted in the
Building’s passenger elevator lobbies and they are required to have rubber tires and
sideguards. Tenant shall be responsible for removing any oil deposited on the
Premises from such trucks, vehicles or conveyances.
	 
	 	29.	 	Directory Listings: Tenant shall have the right to its proportionate share
of listings in the Building’s lobby and floor directories. Any changes to those
listings shall be at the expense of Tenant.
	 
	 	30.	 	Pets: No animals (other than seeing-eye dogs), fish or birds shall be kept
in the Building.
	 
	 	31.	 	Bicycles and Other Self-Propelled Vehicles: Bicycles and other
self-propelled vehicles such as skates, scooters and skate boards, are not allowed in
the passenger elevator lobbies. However, bicycles and other large self-propelled
vehicles can be transported to and from the tenant’s Premises via the freight elevator
on the loading dock, subject to the hours of operation. No motorized vehicles are
allowed beyond the loading dock.
	 
	 	32.	 	Tenant’s Advertising: Landlord shall have the right to prohibit any advertising by Tenant
identifying the Building which, in Landlord’s reasonable judgment, tends to impair the reputation
of the Building or its desirability as an office Building, and upon written notice from Landlord,
Tenant shall refrain from or discontinue such advertising.





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SCHEDULE H




CONTRACTOR’S INSURANCE REQUIREMENTS





	A.	 	Scope of Coverage. Each of Tenant’s contractors (“Contractor”) shall, at its
own expense, purchase and maintain in full force and effect, during the performance of
any Alterations such insurances as will protect Contractor and the Indemnitees from
claims (i) under worker’s compensation acts and other employee benefits acts, (ii) for
injury to persons or damage to property which may arise out of or result from acts or
omissions in the performance of any Alterations, whether by Contractor or any
subcontractor, or anyone directly or indirectly employed by any of them, or anyone for
whose acts they may be liable, for not less than the limits of liability prescribed in
Subparagraph A(1) through Subparagraph A(6) below, or as required by
law, whichever is greater, issued by a company or companies reasonably satisfactory to
Landlord and qualified to do business in the state and municipality where the Premises
are located.






	 	1.	 	A “Commercial General Liability Policy” including coverage
for the following: contractual liability recognizing the contract by which
Contractor has been engaged to perform the Alterations, bodily and personal
injury liability, broad form property damage liability, independent
contractor’s coverage, demolition on any building or structure, collapse,
blasting and excavation, and products liability and completed operations
insurance (for at least one (1) year following completion of the relevant
Alterations) written on an occurrence form, with limits of at least $1,000,000
for each occurrence, and $2,000,000 general aggregate coverage, with each
policy year to apply “per project”.
	 
	 	2.	 	An automobile liability policy, covering all owned,
non-owned, borrowed or hired vehicles, including the loading and unloading
thereof, with a combined single limit of $1,000,000 for bodily injury and
property damage arising out of the ownership, maintenance or use of any
automobile.
	 
	 	3.	 	Workers’ compensation and occupational disease insurance,
employee benefit insurance and any other insurance in the statutory amounts
required by the laws of the State of New York, with broad-form all-states
endorsements.
	 
	 	4.	 	Employer’s liability insurance with a limit of $1,000,000 per
accident.




H-1









 






	 	5.	 	Excess (umbrella) liability insurance with limits of not less
than $5,000,000 for each occurrence and $5,000,000 annual aggregate, to apply
“per project”.






	B.	 	The insurance required pursuant to this Schedule H shall be primary
and non-contributing for, and shall be without liability for premiums on the part of,
Landlord and its agents, the Indemnitees, any Lessor and any Mortgagee, and it shall
name Landlord and its agents, the Indemnitees, any Lessor and any Mortgagee, as
additional insureds.
	 
	C.	 	The insurance required pursuant to this Schedule H shall not contain
a cross-liability exclusion.
	 
	D.	 	Contractor shall, prior to the commencement of any work on the Alterations,
file certificates with Landlord as outlined to show the existence of the insurance
required pursuant to this Schedule H, which certificates shall be subject to
Landlord’s approval as to the adequacy of protection and compliance with the
provisions of this Schedule H and this Lease and the satisfactory standing of
Contractor’s insurers, and all policies shall provide for thirty (30) days notice to
Landlord prior to their cancellation or expiration. Such insurance shall be placed
with reputable insurance companies licensed or authorized to do business in the State
of New York and having an “A.M. Best” rating of “A-X” or better, or an equivalent
rating by another recognized rating organization acceptable to Landlord.
	 
	E.	 	All requirements imposed by the policies referred to in this Schedule
H, and to be performed by Contractor, shall likewise be imposed upon, assumed by
and performed by each and every subcontractor.
	 
	F.	 	Nothing contained in this Schedule H or elsewhere in this Lease shall
relieve Contractor or any of its subcontractors of any of their respective obligations
to exercise due care in the performance of their duties in connection with the
Alterations or to complete the Alterations in compliance with this Lease and all
applicable Requirements.
	 
	G.	 	The carrying of the insurance required pursuant to this Schedule H shall in no way be
interpreted as relieving Contractor of any responsibility or liability it may have pursuant to (i)
this Lease, (ii) any applicable Requirements or (iii) the contract by which it has been engaged to
perform the Alterations.





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SCHEDULE I




SERVICE CHARGES





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